Category Archives: Labor & Employment

Congrats Ellen Leibovitch!

The team at Assouline & Berlowe P.A. congratulates Board Certified Labor and Employment Partner Ellen Leibovitch for being sworn in on Saturday night as President of the South Palm Beach County Bar Association. Assouline & Berlowe P.A. is proud of Ellen’s achievement and is excited to see what Ellen has in store for her term as President.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-5576

www.assoulineberlowe.com

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Employment Law Update: Florida’s “Stop WOKE” Act

Florida’s legislature has passed a law that will impact the manner in which employers conduct workplace training.

Under Florida House Bill 7/Senate Bill 148 (HB 7), nicknamed the “Stop Woke Act” (the “Act”), any employment practices or training programs that cause an individual to feel discomfort or distress by suggesting that they are responsible for actions “committed in the past by other members of the same race, color, sex or national origin,” could be considered an unlawful employment practice and subject an employer to liability. 

HB 7 closely mirrors former President Donald Trump’s 2020 Executive Order prohibiting divisive concepts in diversity training in the Executive Branch. The order was the subject of multiple First Amendment lawsuits, was enjoined nationwide by a federal court, and was ultimately revoked by President Joe Biden.  If the Act is signed into law by Governor DeSantis – which is likely to occur – similar legal challenges are expected.

Among other things, the Act, which applies to public and private employers with at least 15 employees, will amend the Florida Civil Rights Act to provide that subjecting a person, as a condition of employment, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts, constitutes discrimination based on race, color, sex, or national origin:

  1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
  2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
  3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
  4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
  5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
  6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
  7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
  8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

The law does not prohibit discussion of these concepts as part of a course of training or instruction, provided such training or instruction is given in an “objective manner without endorsement of such concepts.”

Any employee who believes their employer has violated the Act can pursue a claim for relief, including damages and attorneys’ fees, under Fla. Stat., §760.11.

Once signed into law, the Act is set to take effect on July 1, 2022.  When and if that occurs, employers who offer training to employees on discrimination and harassment should be prepared to tailor such training to comply with the Act.

The full text of the Act can be found at:

If you have any questions about this or any other employment law matters, please contact Ellen Leibovitch.  Thank you.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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4/30: Ellen Leibovitch to be Sworn In as South Palm Beach County Bar Association President

Assouline & Berlowe is excited to announce that, on April 30, 2022 at St. Andrews Country Club in Boca Raton, Board Certified Labor and Employment Partner Ellen Leibovitch will be installed as the President the South Palm Beach County Bar Association at the association’s first gala since 2019!  A copy of the evite is accessible at https://conta.cc/3hQWYfZ.  To register, please visit SouthPalmBeachBar.org/Gala.

You are welcome to attend regardless of whether you are a member of the association, and Ellen would love to see you at the gala to celebrate.  Details for purchasing tickets are in the invitation, and sponsorship opportunities (many of which include tickets) may be available as well.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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Employment Update: Forced Arbitration in Sexual Harassment Cases

On February 10, 2022, the U.S. Senate passed H.R. 4445, entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The purpose of this Act is to outlaw forced arbitration clauses and joint-action waivers in employment contracts for sexual harassment and assault cases.

The Act, which is soon expected to be signed by President Biden, renders mandatory arbitration clauses and joint-action waivers for these type of claims unenforceable.  The Act is silent as to whether these provisions will be enforced in similar cases involving, for example, claims of racial harassment, age discrimination, etc.

The Act expressly applies “to any dispute or claim that arises or accrues on or after the date of enactment.”  Whether a claim filed after enactment of the Act based on conduct that occurred prior to enactment will be exempt from arbitration and class action remains to be seen, but plaintiffs’ attorneys will surely favor of such a reading. 

Practically speaking, contracts that contain mandatory arbitration or joint-action waivers for sexual assault or harassment should be modified to exempt these claims, though other similar claims may still be subject to mandatory arbitration, class and collective action waivers, etc.

For your review, the relevant text of the Act is as follows:

§ 402. No validity or enforceability

(a) IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(b) DETERMINATION OF APPLICABILITY.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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Colorado Criminalizes Use of Void Non-Compete Agreements

With a law going into effect on March 1, 2022, the state of Colorado will become the first state to criminalize, as a Class 2 misdemeanor, the use of “void” non-compete agreements (i.e., restrictive covenants).

Under the laws of Colorado, a non-compete is “void” unless it relates to a contract: (1) for the purchase and sale of a business (or its assets), (2) for the protection of trade secrets, (3) for the recovery of expenses of educating and training an employee, or (4) for executive/management personnel.

Under the new law, asking an employee to sign a restrictive covenant that does not fall into one of the four categories above can subject the offending employer to up to 120 days imprisonment, a $750 fine, or both.

This law does not, however, expand any of the existing laws, but rather implements a criminal penalty for violating the existing statutes governing non-competes.

For any additional employment or labor related questions, please call the attorneys at Assouline & Berlowe, P.A.

Eric N. Assouline, Esq.

ASSOULINE & BERLOWE, PA.

Miami – Ft. Lauderdale – Boca Raton

http://www.assoulineberlowe.com

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Virtual CLE: Gender Identity and Sexual Orientation Discrimination in the Workplace and Beyond

On January 21, 2022 from 12-1pm EST, the South Palm Beach County Bar Association is presenting a virtual CLE on Gender Identity and Sexual Orientation Discrimination in the Workplace and Beyond. The agenda includes a history of discrimination protection, the case of Bostock v. Clayton County, and how to address employees and customers.

The speakers for the CLE are The Honorable Judge Rand Hoch, William M. Julien, and Tammy K. Fields, Esq.

The event is free for members and $15 for non-members. To sign up, please visit: https://southpalmbeachbar.org/event-4608537.

As always, if you have any questions about the event or any other employment-related matters, please feel free to Ellen Leibovitch.  

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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Employers: Enroll in E-Verify System

  1. PUBLIC EMPLOYERS

As of January 1, 2021, every public employer, contractor, and subcontractor in the State of Florida is required to enroll in and use the E-Verify system in order to verify the identity and confirm the eligibility of all new employees. No public contract can be entered without registering for and using the E-Verify system.  See Fla. Stat.§ 448.095

The statute requires that if a covered contractor enters into a contract with a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. The contractor must maintain a copy of the foregoing affidavit for the duration of the contract.

The statute requires that any public employer, contractor, or subcontractor who believes in good faith that a person or entity with whom it is contracting has knowingly violated the statute must terminate the contract with the person or entity. In the event a public employer believes in good faith that a subcontractor has violated the statute, but the contractor has complied, the employer must promptly notify the contractor and order the contractor to immediately terminate the subcontractor. The statute expressly states these actions shall not constitute a breach of contract, and any action challenging such a termination must be filed within twenty (20) calendar days of the contract’s termination.

2. PRIVATE EMPLOYERS

Pursuant to this same statute, once an offer of employment is accepted, private employers must also verify employment eligibility for any employee(s) hired after January 1, 2021 (however, if a person is a contract employee retained by a private employer, the private employer must verify the employee’s employment eligibility upon the renewal or extension of his or her contract).

Private employers may either use the E-Verify system or require the new-hire to provide the same documentation that is required by the USCIS on its Form I-9 (Employment Eligibility Verification).  Private employers are required to retain such documentation for three (3) years after the initial date of employment.

If a private employer violates the verification requirements, it must provide an affidavit, to the Department of Economic Opportunity stating that:

  • the private employer will comply with the statute;
  • the private employer has terminated all unauthorized aliens in this state; and
  • the employer will not intentionally or knowingly employ an unauthorized alien in this state.

Failure to provide such an affidavit within thirty (30) days of the Department’s Request will result in the appropriate licensing agency suspending all applicable licenses held by the employer until it provides the affidavit. Failure to comply with the affidavit requirements three (3) times within 36 months will result in permanent revocation of all licenses held by the employer specific to the location where the unauthorized alien performed work, or if the employer does not hold a license specific to that location, licenses pertaining to the primary place of business will be revoked.

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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Florida Minimum Wage Increase

On  November 3, 2020, a constitutional amendment was approved to amend the Florida Constitution to gradually increase the minimum wage to $15.00 per hour by September of 2026. The first increase took effect on September 30, 2021, which raised the minimum wage in Florida to $10 per hour. The direct wage for tipped employees is now $6.98, which is based on the minimum wage ($10.00) less the tip credit of $3.02 and will continue to increase as does the minimum wage.

Employers subject to the minimum wage laws must post the Florida and Federal minimum wage notices, which can be found at:

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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New Employer Reporting Requirements Under Florida Statute 409.2576

Under Florida law, employers have been required to report employee new-hire information to the Florida Department of Revenue’s State Directory of New Hires. Under a newly revised law effective October 1, 2021, Florida businesses are required to also submit such information on independent contractors from whom they purchase services.

This law applies in any situation where the “service recipient” pays “$600 or more per calendar year for services rendered in the course of the trade.” The report must include:

  • the contractor’s name, address, and social security number/TIN,
  • the date services for payment were first rendered by the contractor, and
  • the name, address, and employer identification number of the service recipient.

Independent contractors must be reported within 20 days of the earlier of (1) the date of the first payment made, or (2) the date on which a contract providing for such payments is entered into. The report may be submitted magnetically, electronically, or via fax or US mail.

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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Employment Law Follow-Up: Application of the Religious Exemption in the Era of Employer-Mandated Vaccinations

Photo by Maksim Goncharenok on Pexels.com

On November 4, 2021, OSHA finally released the Emergency Temporary Standard (ETS) implementing President Biden’s vaccine mandate discussed below.  Then, on November 6, 2021, after challenges to the ETS were filed by Republican attorneys general Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies, the Fifth Circuit Court of Appeals granted an emergency motion to stay the ETS. After further briefing, the appeals court reaffirmed the stay on November 9, 2021.

Because we do not know what will happen when the Fifth Circuit’s decision is appealed (and it surely will be), it is recommended that covered employers (those with 100 or more employees) start to prepare for implementing the rule.  

Towards that end, the following is a summary of the ETS:

WHAT IS THE ETS AND WHO IS COVERED?

The ETS is the OSHA standard that mandates private companies with 100 or more employees require their employees to either (1) be vaccinated by January 4, 2022 or (2) test negative on a weekly basis and wear an approved face covering in the workplace. Employees choosing the second option are required to be in compliance starting December 5, 2021. The ETS is to be effective for six (6) months, unless an extension or permanent standard is put in place.

Part-time and at-home employees (but not independent contractors or volunteers) count toward the 100-employee threshold, but completely remote employees and those who work strictly outside are not subject to the ETS’ vaccine or face covering requirements.  Workers who work remotely part of the time are required to comply with the ETS.

Note that healthcare providers, Medicare and Medicaid providers, government contractors, and government employees are covered by different mandates, not the ETS.

WHICH VACCINES COUNT?

The Pfizer, Moderna, and Johnson & Johnson vaccines are all acceptable. Booster shots are not yet required, and whether an employee has had COVID-19 in the past has no effect on the requirement: employers must still enforce the ETS against employees who have had and recovered from COVID-19.

ARE THERE EXCEPTIONS TO THE ETS?

There are medical exemptions and exemptions for sincerely held religious beliefs, as discussed below.

WHAT NOTICE MUST BE PROVIDED TO EMPLOYEES?

Covered employers must implement written policies covering the ETS, including the following:

  • Requirement of vaccination or weekly testing requirements, as well as exemptions
  • Documentation required to prove vaccination status and collection methods
  • Required paid-time-off: four (4) hours of paid leave for each dose for employees to get their vaccine starting December 5, 2021
  • Testing procedures and requirements (note that employers are not required to pay for testing or provide paid time off for testing)
  • Information regarding COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated
  • A representation that the employer will not discharge or discriminate against an employee for reporting work-related injuries or illness, exercising rights under, or as a result of actions that are required by, the ETS or filing an occupational safety or health complaint, reporting work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act.

OSHA has provided a Mandatory Vaccination Policy Template.  

WHAT PROOF OF VACCINATION IS REQUIRED?

For the duration of the ETS, employers must maintain records of their employees’ vaccination status.

As proof of vaccination, employers are authorized to accept the following:

  • A healthcare provider or pharmacy’s record of immunization
  • A copy of the U.S. COVID-19 Vaccination Record Card
  • A copy of medical records documenting the vaccination
  • A copy of immunization records from a public health, state, or tribal immunization information system
  • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s)

Employees can also verify their status with an attestation in which the employee acknowledge their vaccination status (full or partial) and, if available, information regarding the type of vaccine, dates of administrations and who provided the vaccine, and a statement that the proof of vaccination is lost or cannot be produced. The attestation should include the following language: “I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

MORE INFORMATION

For those who are interested, a  more detailed summary of the ETS can be found HERE, and the full text of the ETS can be found HERE.

As always, if you have any questions about the ETS or any other employment-related matter, please feel free to reach out.  

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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