Category Archives: labor and employment law

15 Years Later – the Hard Work Starts to Pay Off – Litigation Department of the Year

Winner of Daily Business Review's Litigation Department of the Year for Small Firms in the Section of Real Estate and Other Litigation

Litigation Partners Peter E. Berlowe and Eric N. Assouline at the 2018 DBR Awards Ceremony

Before starting the firm in 2003, both Peter Berlowe and Eric Assouline worked as associate attorneys at the Weil, Gotshal & Manges LLP law firm.  Hanging in the office of the Head of the Litigation Department was a framed plaque that read “Defense Verdict of the Year.”  This plaque commemorated the awesome accomplishment of the senior partner’s efforts, and it was recognized by the American Law Journal.  Eric Assouline used to look at this plaque in awe and wonder if he could ever achieve the heights of his mentor.

In its 15th year, Assouline & Berlowe has grown into a recognized and well regarded presence in the South Florida legal community.  Assouline & Berlowe works with businesses and individuals on a wide array of legal issues, ranging from real estate, business litigation, intellectual property, employment, and trusts, estates and probate matters.

On May 30, 2018, Assouline & Berlowe was recognized by the Daily Business Review for the tireless hard work and effort of its attorneys, when the firm was awarded Litigation Department of the Year, for Small Firms, in the areas of Real Estate and Other Litigation.

The award came as a surprise to the management of the firm, not because they did not think that they had anything short of an excellent litigation department.  Instead, it was because the litigation department of Assouline & Berlowe only consists of 7 attorneys, and the firm, as a whole only has 12 attorneys.  The Small Firm category of the DBR award was open to all firms of 69 attorneys or less.  Firm management thought that there must be dozens of other firms that had many celebrated successes worthy of trying to win this award.  Nonetheless, again, the tireless effort of the firm management did as it always does, all that could be done to try to win.

Now, the hard work for the last 15 years, is starting to pay off.

Eric N. Assouline, Esq.

 

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: ENA@assoulineberlowe.com 

http://www.assoulineberlowe.com/

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New Employment Law Developments

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Photo by rawpixel.com on Pexels.com

 

For all the media time devoted to President Trump, many of you may have missed some actual law-making going on behind the scenes.  Let me take a moment to update you as to three developments which should be of interest to employers:

 1-9 Audits on the Rise

Immigration and Customs Enforcement (ICE) has announced plans to increase I-9 audits this summer and focus on punishing employers who hire illegal workers and deporting of workers in the country illegally.  Make no mistake – the punishment to be imposed by ICE can include civil penalties and/or criminal charges.

 Accordingly, now is the time to make sure your I-9’s are in order and, if they need to be updated because the form of identification on file has expired or will be expiring soon, update them now.  Not all employers are enrolled in E-Verify, but many in the know believe the aim of ICE’s aggressive tactics is to increase E-Verify enrollment.

 While the audits do not include independent contractors, classifying workers as contractors when they should properly be classified as employees may expose employers to headaches beyond ICE: namely the Department of Labor and the Internal Revenue Service.

 New Rules for Tips and Tip Pools

As part of the 2018 tax bill, Congress amended the Fair Labor Standards Act (FLSA) in regards to tip pools and tip ownership.  First, under the new rules, employers are prohibited from keeping tips received by their employees, regardless whether the employer takes a tip credit. Second, the new rules state that employers who pay the full minimum wage (currently $8.25/hour in Florida) can allow employees who are not customarily and regularly tipped – like cooks and dishwashers – to participate in tip pools.  Note that tip pools must still exclude supervisors, managers and owners.

 Many employers do not pay tipped employees the minimum wage and instead take a “tip credit,” recognizing that the employee’s tips will bring the hourly rate up to and over the minimum wage.  For employers who wish to include back of the house workers in the tip pool, paying the minimum wage rather than the tip credit is a way to accomplish this goal.

 Arbitration Can Eliminate Class/Collective Actions

In the case of Epic Systems Corp. v. Lewis , the U.S. Supreme Court upheld an arbitration clause in an employment agreement which precluded the employee from bringing a class action against the employer.  The 5-4 decision authored by Justice Gorsuch makes clear that employer-favored arbitration agreements can be used to eliminate the risk of costly class and collective actions.

 Opponents of such agreements argued that arbitration could not trump employees’ rights to join together to seek common relief.  Based on the holding in Epic Systems, arbitration agreements can be used to eliminate an employee’s right to participate in a class or collective action and require arbitration of the employee’s individual claims only.

 Those of you who require your employees submit to arbitration to resolve any employment-related dispute should have counsel review the arbitration agreement to ensure that it precludes the employee from participating in a class or collective action.  Those of you who do not have arbitration agreements with your employees – either as a stand-alone agreement or as a clause in an employment contract – may want to consider putting this type of agreement in place.

 As always, if you have any questions about the foregoing or other employment-related matters, please feel free to contact me.  Happy Memorial Day to all!

Board Certified Labor and Employment Partner Ellen Leibovitch

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Filed under Business Litigation, commercial litigation, Labor & Employment, labor and employment law, Litigation

Recognizing Michelle Suskauer as SPBC FAWL Woman Lawyer of the Year

On March 29, 2018, the Past Presidents of the South Palm Beach County chapter of the Florida Association for Women Lawyers (SPBC FAWL) presented their annual “Woman Lawyer of the Year” award to Michelle Suskauer.  Among Michelle’s many achievements, she is most notably the President-Elect of The Florida Bar, a partner with the law firm Dimond Kaplan & Rothstein, P.A., a highly-respected criminal defense attorney and an outspoken advocate for women.

Ellen Leibovitch, head of Assouline & Berlowe, PA’s labor and employment department and Board Certified Labor & Employment attorney, is a Past President of SPBC FAWL and chair of this event.  The event was held at the beautiful Woodfield Country Club in Boca Raton, Florida, and was sponsored by over 30 organizations, including Assouline & Berlowe.

Previous winners of the Woman Lawyer of the Year award include Barbara Pariente, Justice of the Florida Supreme Court, and Samantha Schosberg Feuer, Circuit Court Judge for the 15th Judicial Circuit.

For any questions about SPBC or FAWL, please contact Board Certified Labor and Employment Partner Ellen Leibovitch.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

 

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Filed under Business Litigation, Corporate Law, Florida Bar, Labor & Employment, labor and employment law

5.72% – New Interest Rate for Judgments in Florida

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As we have mentioned in prior Blog posts, every quarter of the year, Florida reassesses the interest rate that must be charged on judgments in the State of Florida.

What is interesting is that Florida’s statutory interest rate is, little by little, or not so much, creeping up.   Just in the last year, the interest rate has gone up by .67 basis points.

See a chart below with the gradual increase, just in the last 12 months.

April 1, 2018 Judgment

Notably, any prejudgment claim to interest is also governed by this statute.  So, claims that are pending for years have appreciated in value just by the nature of the increase in the statutory interest rates.

Eric N. Assouline, Esq.

Assouline & Berlowe, P.A.

www.assoulineberlowe.com

Miami – Ft. Lauderdale – Boca Raton

 

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Website ADA Compliance – The Next Wave of Litigation?

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For over 25 years, the Americans with Disabilities Act (ADA) has required business owners offering public accommodations reassess accessibility to the disabled.  Usually, being named as a defendant in a federal lawsuit challenging parking spaces, restroom sizes and furnishings, counter heights and other similar structural barriers forces business owners to comply with the ADA.  The fact is that most businesses are susceptible to these lawsuits given the rise of the so-called “drive by” phenomenon, where the same plaintiff, with the assistance of the same attorney, files multiple lawsuits against all businesses in the same shopping center, same geographic care or same industry.

Enter the 21st century, and we are seeing a new frontier for legal challenges under the ADA: websites.  Many business owners fail to realize that specific accessibility standards apply to websites as well, which is why attorneys representing sight and hearing-impaired and other physically disabled users are suing businesses whose websites fail to comply with the current web content accessibility guidelines (WCAG).  Consequently, businesses whose websites may not be accessible to the disabled would be smart to consider remediation before getting sued.

According to Jeremy Horelick, Vice President of ADA Site Compliance:

The cost of proper remediation can range from tens of thousands of dollars to the high-six-figures. Big companies like Target, which spent nearly $10 million in restitution and legal fees in a landmark case brought by the National Federation of the Blind, can bear that financial hit. But small and mid-market businesses often cannot. For them, getting ahead of the compliance curve is a must, especially now that the DOJ has withdrawn its long-awaited regulations on the matter. The lack of clarity means a near-certain uptick in the pace of forthcoming cases.

One recent decision in the Southern District of Florida is Gil v. Winn-Dixie Stores, Inc. In that case, the plaintiff argued that defendant’s website was inaccessible to the visually impaired.  Title  III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” 42 U.S.C. § 12182(a).  The court stated that when a website is heavily integrated with physical store locations, the website is a service of a public accommodation and covered by the ADA.  As a result, the court found that the defendant’s website was not accessible to visually impaired individuals who must use screen readers to view the website and granted an injunction to ensure the website was in compliance with the ADA.

Federal lawsuits are costly and time-consuming, which is why smart business owners should act proactively: remediation before litigation.  Horelick suggests hiring a qualified third-party auditor to scan your site and determine the scope of work to be done as this will establish an objective baseline.  Also, avoid free online diagnostic tools, which only catch 20-30% of known failures at best. Businesses that rely solely on free tools may get a false sense of compliance with the WCAG.

For any questions about the ADA and this new frontier of ADA compliance, please contact Board Certified Labor and Employment Partner Ellen Leibovitch.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, International Dispute Resolution, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Employment Law 101: Critical Issues to Know

Assouline Berlowe Employment

Whether you are an employer or an employee, you form a part of the workforce. Therefore, you should understand some laws and rules applicable to different employment situations.

First, as an employee without an employment contract, you should know that you can be fired for any reason at all, so long as the reason is not discriminatory or retaliatory. Discrimination does not mean you were simply treated unfairly, or differently than others. A discrimination claim arises if you were treated differently because of your age, race, sex, disability, national origin, or other protected class.  In short, you cannot be fired simply because you are older, African-American, a woman, or disabled. However, you can be fired if your boss believes you are performing poorly, even if you disagree.

You also cannot be fired for retaliation, which occurs when you suffer an adverse employment action – such as termination, demotion, suspension, etc. – as a result of complaining about a violation of the law. Therefore, if you complain about something that is not a violation of the law and you are fired, you are not protected. If you complain about your boss being rude, you can be fired; but if you complain your boss is stealing money, that could rise to retaliation. Unless you have been discriminated or retaliated against, you do not have a claim for “wrongful termination” and, in fact, there is really no such thing as wrongful termination because Florida is an at-will state. You can quit or be fired for any reason or no reason at all.

Furthermore, if you are fired, you do not have to be given a letter of termination, you do not have to be given an explanation, and you are not entitled to severance. You may be entitled to unemployment compensation unless you have committed “misconduct connected with your work.” This is a fairly high standard; but some actions that are considered misconduct include excessive absenteeism, insubordination, not following employer’s rules, etc.

Also, if you quit your job because you are working for a jerk who treats you badly, you cannot claim you were harassed and think you will prevail in a lawsuit. Harassment has to be based on you being a protected status (age, race, gender, national origin), so being berated or treated badly is not harassment; and if you quit – unless you are forced to do so because your employer has made your life miserable – you cannot collect unemployment.

Now, let’s turn to employers. Employers who are covered by the Fair Labor Standards Act must comply with the overtime, minimum wage and child labor laws. Non-exempt employees must be paid overtime and must keep track of all hours worked per week. But what does this mean – exempt or non-exempt from what? An exempt employee is not entitled to be paid overtime, such as a partner at a law firm. Conversely, a non-exempt employee, like a paralegal, must be paid for working over 40 hours in a work week.

So how do you know if your employee is exempt? Well, this will depend on what the employee does, not their title. For example, if you employ an “office manager” who does not actually manage people or have the ability to exercise independent judgement and discretion, that person may not be exempt. Also, keep in mind that paying an employee a salary does not mean that the employee is non-exempt or not entitled to overtime. Non-exempt employees must be paid overtime regardless of the fact that they are paid a salary or not.

Many employers believe that their business does not have enough employees to be covered by the FLSA, but this could not be further from the truth. The FLSA does not contain a “minimum number of employees” requirement. However, the act does require gross revenues of $500,000 and the element of interstate commerce. Therefore, except for very small businesses and those specifically exempted from the FLSA, your business may well be subject to the FLSA’s requirements.

Many private employers also believe that they can ask an employee to waive their right to be paid overtime and that the employee can agree to do so. This is wrong. The right to overtime cannot be waived under any circumstances. A non-exempt employee MUST be paid for all hours worked and, if that employee works over 40 hours in a work week, she must be paid overtime. Remember that the hours worked are measured per week; so if your payroll covers two weeks and the employee works 50 hours in week one and 30 hours in week two, that employee must be paid for 10 hours of overtime for week one.

Finally, a word about independent contractors. Whether you have been hired as an independent contractor or whether you have hired someone to work with you as an independent contractor, you must be certain that a contractor relationship – not an employment relationship – has been established. The key to the inquiry is control. Actually, the IRS has a list of 20 factors which determine if a person should be classified as an independent contractor or an employee, but the level of control is the overriding concern. The reason why it is important to distinguish one from another is that the laws apply differently to independent contractors than to employees.

For example, for independent contractors, no taxes are deducted, the FLSA overtime rules do not apply, discrimination and harassment laws generally are not applicable, and there is no unemployment compensation. If you are hired for a job as an independent contractor or if you hire someone to work for you as one, be certain that a true independent contractor relationship is in place. If you get it wrong, there can be significant tax and wage implications. Make sure you have an independent contractor agreement in place to define duties and pay and define the relationship. Though this may not control, it will help. And, of course, if you have any questions or find yourself in need of advice regarding these topics, please contact a labor and employment attorney.

Please feel free to contact me if you have any questions or comments.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, International Dispute Resolution, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

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EMPLOYERS: New Tax Law Makes CONFIDENTIAL Sexual Harassment Settlements NOT DEDUCTIBLE

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The new tax law disallows tax-paying entities from taking a deduction for sexual harassment settlements that are subject to non-disclosure or confidentiality agreements.  In other words, if a company wants a confidential settlement, the company has to pay taxes on the settlement, fines and other expenses incurred.  Conversely, the only way such settlements can be written off and not taxed is if they are not confidential and, therefore, discoverable.

The relevant portion of the new law reads as follows:

No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such settlement or payment.

Under the law as written, no taxpayer (neither the complaining party nor the respondent) can write off the settlement reached in a sexual harassment case if the settlement is confidential.  Previously, the party sued (employer) could write off the settlement amount regardless of the confidential nature of same.  Now, the party paying the settlement cannot deduct the settlement if confidentiality is required.

The idea behind the change was that companies should not be able to keep a settlement confidential (perpetrating a culture where claims of sexual harassment are quietly settled and swept under the rug) and benefit from a tax deduction.  Still, the reality is that most companies will forego the deduction to ensure confidentiality.  Employers are strongly encouraged to seek the advice of employment law and tax counsel to properly document such settlements.

As an aside, note that settlements of claims against members of Congress will not be subject to this provision since the US government is not a taxpayer.

Please feel free to contact me if you have any questions or comments.  Here’s wishing everyone a happy, healthy and prosperous 2018!

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, International Dispute Resolution, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

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