Category Archives: Labor & Employment

Significant Changes to Overtime Regulations!

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Just this week, the Department of Labor (DOL) released its much-anticipated final changes to the overtime regulations under the Fair Labor Standards Act (FLSA). The new guidelines will go into effect on December 1, 2016, so now is the time for covered employers to start preparing.

What has changed?

Most significantly, the new rules change the salary requirements for exempt employees. Under the old rules, employees could be classified as exempt from overtime if they were earning a salary of $455/week (or $23,660/year) and if they performed exempt professional, managerial, executive or administrative duties. Under the new rules, however, employees must earn $913/week (or $47,476/year) – MORE THAN DOUBLE THE PRIOR SALARY LEVEL – to meet the salary component of the exemption. The salary threshold will automatically be updated every three years, so this is a moving target. Note that the final rule did not include a change to the duties test.

Also, the new rule raises the salary threshold level for the highly compensated employee (HCE) exemption from $100,000 to $134,004. To be exempt, a HCE must customarily and regularly perform any one or more of the exempt duties or responsibilities of a professional, managerial, executive or administrative employee and have the primary duty of performing office or non-manual work. Like the standard salary level, the highly compensated employee salary level will increase every three years, beginning Jan. 1, 2020.

What does this mean?

For exempt employees earning at least $913/week, nothing will change. However, employees who are now classified as exempt but who are earning less than $913/week will lose their exempt status as of December 1, 2016. Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, which also means that these employees will be required to record their hours worked. For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

Note that employers will be able to count non-discretionary bonuses, incentive payments and commissions toward as much as 10% of the salary requirement. However, such payments must be made on at least a quarterly basis.

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What should you do?

Step 1: EVALUATION

  • Determine which employees will be impacted by these new rules, if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime. Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.

Step 2: COMMUNICATION

  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

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, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Internal Investigations

20150713_173521Our corporate clients find the need to perform internal investigations.  The Firm’s attorneys pull their respective industry related experience to conduct such internal investigations and defend corporations and employees in complex investigatory and litigation matters.

In the current economic climate, corporate scrutiny is at an all-time high.  The public and private sectors find themselves subject to federal, state, and local agency investigation.  Corporate conduct, compliance and ethics have become an issue increasingly raised by private plaintiffs. As a result, our corporate clients see significant compliance related obstacles to navigate.

We have found that our corporate clients can be best protected from such scrutiny by understanding all the facts surrounding the allegations at hand. When the facts indicate a violation of policy, law, ethics, or other measure of scrutinization, the client must respond rapidly and measurably with remediation, employee discipline, and where necessary contacting appropriate governing agencies.

Corporate internal investigations are protected by the attorney-client privilege and can be beneficial for a number of reasons.  A well designed internal investigation can:

  • Identify key facts so that management and/or the board can make a fully informed decision as to how best to proceed;
  • Cease any offending behavior;
  • Prevent future misbehavior;
  • Document the corporation’s response as the facts are learned;
  • Protect management and boards of directors against a charge of being complicit in the misbehavior; and,
  • Establish and create a corporate culture of compliance and openness.

Planning is key to internal investigations.  The plan will address document and data collection and review, witness interviews, analysis of the facts and data, and regular reporting to the client on the investigation.  The attorneys of the Firm are well suited to developing the right plan for our clients’ needs.

For any questions about internal investigations and their legal implications, please call Peter below:

Peter E. Berlowe, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: PEB@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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New Changes to the FLSA and Compensation toLive-In Domestic Care Workers

Department of Labor

In December 2014, Ellen Leibovitch held a seminar to discuss changes to the Fair Labor Standards Act (FLSA) relevant to third party agencies who employ companions and live-in domestic service employees.  The new regulations – which were set to go into effect on January 1, 2015 – made the long-standing exemptions to the FLSA’s minimum wage and overtime requirements for companions and live-in domestic employees inapplicable to third-party employers (like home health care agencies).

Just days after the seminar, a federal court struck down the new regulations.  Since then, the issue has been batted around the courts, but on August 21, 2015, a federal appellate court issued a unanimous opinion affirming the validity of the new regulations.  The appellate court’s opinion became effective on October 13, 2015.  The Department of Labor (DOL) will not begin enforcement of the new rules until November 12, 2015 but, more than likely, the DOL will not begin prosecuting offenders until January 1, 2016.

For more details, go to http://www.dol.gov/whd/homecare/litigation.htm#.VilP87RgRps.email

So what does this mean to you and your businesses?  For those who have been taking a wait-and-see approach or who had hoped that everything would remain unchanged, the time to act is now.  Businesses need to come to grip with the fact that live-in domestic care workers who reside in the private household where they are employed and home-health companions are going to be subject to the FLSA’s overtime and minimum wage requirements as well as the record-keeping requirements.  Among other things, this means these workers need to be paid a minimum wage (currently $8.05 in the State of Florida but likely to increase as of January 1, 2016), that employers need to maintain accurate records of the hours such employees work each day and each week and that overtime must be paid for all hours worked in excess of 40 each week.

Please note that these new rules apply only to employees, not independent contractors.

For additional information about these changes, please contact Ellen M. Leibovitch below:

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

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, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Wouldn’t You Want Benefits Paid in U.S. dollars?

Assouline & Berlowe

Attorneys Peter Berlowe, Daniel Vielleville, and Cristina Vicens successfully defended a motion dismiss brought by Cargill, Inc. regarding Cargill’s payment of Adela Ortega’s employment benefits .  Ortega, a 19 year employee of Cargill, was primed to be a top executive after her assignment in the United States.  After her position was terminated, Ortega sought benefits due to her as severance.  Cargill wanted to pay Ortega based in Venezuelan bolivars while Ortega wanted be paid in U.S. dollars, a major difference in value.

In a recent article in the Daily Business Review (click here for the article), Peter Berlowe stated:  “We’re very happy we survived the motion to dismiss, because it shows that this case is not about politics or international law.  It’s really an issue of contract. The company claims their guiding principles are keeping and honoring contracts they enter into and doing right by their employees. They ignored both these principles in dealing with our client.”

At one point “Cargill and its Venezuelan affiliate started pointing fingers at each other” when trying to deal with Ortega’s benefits’ claims, stated Daniel Vielleville.

For a detailed review of the case, read the article featured in the Daily Business Review.

Please contact Peter Berlowe or Daniel Vielleville for any questions about the article and for any business litigation and international law concerns.

Peter E. Berlowe, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: PEB@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

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Is Your Data Security Program Lost in the Weeds?

Assouline & Berlowe

“I.R.S. Adds New Safeguards to Thwart Identity Theft and Fraud”

 “Federal Data Compromised at OPM and Interior; Could Affect 4 Million People”

 “North Shore (University Hospital) Warns About 18,000 Patients of Potential Data Breach”

 “Massive Data Breach Affects Hundreds of Miami-Dade County”

As you check your incoming morning email; malware surreptitiously checks your every keystroke and monitors your cyber movements. At your doctor’s office you provided enumerable consent and other extremely personal and confidential information forms; then, within earshot of waiting patients, the receptionist announces your social security number to a colleague. You buy a new condo, providing the Condo Association Board an approval application with your family’s personal and financial history; now your neighbors “know your business!”

The headlines are real; the scenarios occur every day. Scenarios endemic to the hyperbolic expansion of technological innovation, the public’s enchantment and dependence on B2C and social media, and the progressively steep upward trend in information creation and cyber monitoring. Information (“Data”) creates Knowledge; and Knowledge is Power! In the era of “Big Data,” confidential personal and proprietary business Data, mishandled or acquired without authorization by third parties, may have disastrous consequences to the Data Owner.

“In the day,” businesses focused Document (Record) Retention Policies and Programs. Internally-focused initiatives to identify proprietary or sensitive documented information required for possible future use (e.g., government regulations, tax audits); that may be needed to respond to customer, client, or other third-party complaints or litigation (e.g., contracts and collateral documents); and for general historical or other purposes (e.g., corporate or business records). Today, with Information Technology’s potentially illegitimate intrusion in personal privacy, these initiatives must also include externally-focused component to protect those privacy interests.

A company (or other Data Custodian with legitimately acquired Data Owner information) should establish a Data Breach Security Plan with policies and practices for the handling of sensitive Data Owner information. The Plan identifies and “ring-fences” sensitive Data Owner information; sets parameters for limited or “need-to-know access;” identifies potential live and IT systems Data Breach threats; and establishes a Data Breach Response Procedure to adequately notify a Data Owner where his or her information has been compromised.

Florida, along with a number of states, however, have recently begun to actively legislate and establish statutory schemes. Florida’s Information Protection Act of 2014 (“Security of Confidential Information) requires businesses, and government, to take “reasonable measures to protect and secure personal information.” If a Florida business collects personal information, it is now required to establish and maintain a Data Security Program. Once the business, or government entity, acquires personally identifiable information, it is obliged to safeguard the information; and, where appropriate, have a prescribed plan for the information’s destruction or return.  Specified Data includes:

  • social security number;
  • driver’s license or identification card number, passport number, military identification number, or other similar personal identifier issued on a government document used to verify identity;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary to permit access to an individual’s financial account;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary  to permit access to an individual’s financial account;
  • information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or
  • health insurance policy number or subscriber identification number as well as any unique identifier used by a health insurer to identify that person.

Under the Statute, a Florida business or other “covered entity” ” must notify the Attorney General, in writing, no later than 30 days after a Data Breach or possible Data Breach. That is “any breach of security affecting 500 or more individuals in this state.” The notice must include:

When a Data Breach occurs; that is where there is “unauthorized access of data in electronic form containing personal information.” More broadly, when specific third-party “sensitive, protected, or confidential information has potentially, been viewed, stolen, or used by an individual not so authorized.” For example, where a physician’s laptop is lost or stolen; or where a company IT system has been “hacked.” Parenthetically, insurance companies are now offering Data Breach Insurance.

  1. A synopsis of the events surrounding the breach
  2. The number of individuals in this state who were or potentially have been affected by the breach
  3. Any services related to the breach being offered or scheduled to be offered, without charge, by the covered entity to individuals, and instructions as to how to use such services
  4. A copy of the notice to the individuals affected by the breach or an explanation of the other actions taken to notify the individuals affected by the breach
  5. The name, address, telephone number, and e-mail address of the employee or agent of the covered entity from whom additional information may be obtained about the breach

The Attorney General may also request additional information including: (a) a police report, incident report, or computer forensics report; (b) a copy of the policies in place regarding breaches; and (c) steps that have been taken to rectify the breach.

Although the Statute does not allow a private right of legal action, a Data breach is considered “deceptive trade practice.” Within the jurisdiction of the Department of Legal Affairs, violations are subject to injunctive relief and the following civil penalties: for failure to notify Data Owners:

  1. In the amount of $1,000 for each day up to the first 30 days following any violation and, thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days; and
  2. If the violation continues for more than 180 days, in an amount not to exceed $500,000.

The civil penalty assessed is for each breach, not for each individual affected by the breach.

Data Security and Data Privacy should be a major concern to individuals and business alike. The law in this area is evolving. It has become an important focus of business law practice.

For more information on Data Security Programs matters, please contact:

Carl H. Perdue, JD, LLM
Senior Counsel and Partner
Business and Finance

The above material is for information purposes only; and is not to be considered legal or financial advice.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

 

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Is Your Data Security Program Lost in the Weeds?

Assouline & Berlowe

“I.R.S. Adds New Safeguards to Thwart Identity Theft and Fraud”

 “Federal Data Compromised at OPM and Interior; Could Affect 4 Million People”

 “North Shore (University Hospital) Warns About 18,000 Patients of Potential Data Breach”

 “Massive Data Breach Affects Hundreds of Miami-Dade County”

As you check your incoming morning email; malware surreptitiously checks your every keystroke and monitors your cyber movements. At your doctor’s office you provided enumerable consent and other extremely personal and confidential information forms; then, within earshot of waiting patients, the receptionist announces your social security number to a colleague. You buy a new condo, providing the Condo Association Board an approval application with your family’s personal and financial history; now your neighbors “know your business!”

The headlines are real; the scenarios occur every day. Scenarios endemic to the hyperbolic expansion of technological innovation, the public’s enchantment and dependence on B2C and social media, and the progressively steep upward trend in information creation and cyber monitoring. Information (“Data”) creates Knowledge; and Knowledge is Power! In the era of “Big Data,” confidential personal and proprietary business Data, mishandled or acquired without authorization by third parties, may have disastrous consequences to the Data Owner.

“In the day,” businesses focused Document (Record) Retention Policies and Programs. Internally-focused initiatives to identify proprietary or sensitive documented information required for possible future use (e.g., government regulations, tax audits); that may be needed to respond to customer, client, or other third-party complaints or litigation (e.g., contracts and collateral documents); and for general historical or other purposes (e.g., corporate or business records). Today, with Information Technology’s potentially illegitimate intrusion in personal privacy, these initiatives must also include externally-focused component to protect those privacy interests.

A company (or other Data Custodian with legitimately acquired Data Owner information) should establish a Data Breach Security Plan with policies and practices for the handling of sensitive Data Owner information. The Plan identifies and “ring-fences” sensitive Data Owner information; sets parameters for limited or “need-to-know access;” identifies potential live and IT systems Data Breach threats; and establishes a Data Breach Response Procedure to adequately notify a Data Owner where his or her information has been compromised.

Florida, along with a number of states, however, have recently begun to actively legislate and establish statutory schemes. Florida’s Information Protection Act of 2014 (“Security of Confidential Information) requires businesses, and government, to take “reasonable measures to protect and secure personal information.” If a Florida business collects personal information, it is now required to establish and maintain a Data Security Program. Once the business, or government entity, acquires personally identifiable information, it is obliged to safeguard the information; and, where appropriate, have a prescribed plan for the information’s destruction or return.  Specified Data includes:

  • social security number;
  • driver’s license or identification card number, passport number, military identification number, or other similar personal identifier issued on a government document used to verify identity;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary to permit access to an individual’s financial account;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary  to permit access to an individual’s financial account;
  • information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or
  • health insurance policy number or subscriber identification number as well as any unique identifier used by a health insurer to identify that person.

Under the Statute, a Florida business or other “covered entity” ” must notify the Attorney General, in writing, no later than 30 days after a Data Breach or possible Data Breach. That is “any breach of security affecting 500 or more individuals in this state.” The notice must include:

When a Data Breach occurs; that is where there is “unauthorized access of data in electronic form containing personal information.” More broadly, when specific third-party “sensitive, protected, or confidential information has potentially, been viewed, stolen, or used by an individual not so authorized.” For example, where a physician’s laptop is lost or stolen; or where a company IT system has been “hacked.” Parenthetically, insurance companies are now offering Data Breach Insurance.

  1. A synopsis of the events surrounding the breach
  2. The number of individuals in this state who were or potentially have been affected by the breach
  3. Any services related to the breach being offered or scheduled to be offered, without charge, by the covered entity to individuals, and instructions as to how to use such services
  4. A copy of the notice to the individuals affected by the breach or an explanation of the other actions taken to notify the individuals affected by the breach
  5. The name, address, telephone number, and e-mail address of the employee or agent of the covered entity from whom additional information may be obtained about the breach

The Attorney General may also request additional information including: (a) a police report, incident report, or computer forensics report; (b) a copy of the policies in place regarding breaches; and (c) steps that have been taken to rectify the breach.

Although the Statute does not allow a private right of legal action, a Data breach is considered “deceptive trade practice.” Within the jurisdiction of the Department of Legal Affairs, violations are subject to injunctive relief and the following civil penalties: for failure to notify Data Owners:

  1. In the amount of $1,000 for each day up to the first 30 days following any violation and, thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days; and
  2. If the violation continues for more than 180 days, in an amount not to exceed $500,000.

The civil penalty assessed is for each breach, not for each individual affected by the breach.

Data Security and Data Privacy should be a major concern to individuals and business alike. The law in this area is evolving. It has become an important focus of business law practice.

For more information on Data Security Programs matters, please contact:

Carl H. Perdue, JD, LLM
Senior Counsel and Partner
Business and Finance

The above material is for information purposes only; and is not to be considered legal or financial advice.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Congratulations to Ellen Leibovitch and Eric Assouline for being chosen as Super Lawyers – Florida for 2015


I am honored and humbled to be selected by Super Lawyers with my distinguished colleague Ellen M. Leibovitch. I have had the privilege to work with Ellen for many years. We first met when I was only a young associate and she was already a partner in a prior law firm 17 years ago. We had the chance to get to know each other at that time, and when I started my firm and she agreed to join the firm I was happy that I would again be working with such a great attorney. Ellen is board certified by the Florida Bar in Labor & Employment Law and one of only a handful of lawyers in Boca Raton with this specialization. With Peter Berlowe, we look forward to continuing to work with Ellen on business and labor related litigation cases. In particular, we look forward to working with Ellen on the enforcement and defense of non-compete cases, which is an area of labor law that the firm has had extensive experience.
I am very grateful for this honorable distinction and the privilege to continue working with such a great firm.

Eric N. Assouline, Esq.
BUSINESS LITIGATION PARTNER
ASSOULINE & BERLOWE, P.A.
The BUSINESS LAW Firm
www.assoulineberlowe.com
Miami – Ft. Lauderdale – Boca Raton

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