EMPLOYMENT LAW UPDATE – Significant Changes to Overtime Regulations!

 

For loyal followers of these updates, this Department of Labor “update” may seem like déjà vu.  Indeed, three years ago I sent out an update notifying you that the Department of Labor (DOL) had released final changes to the overtime regulations under the Fair Labor Standards Act (FLSA) and that the changes were scheduled to go into effect on December 1, 2016.  Well, as it turned out, the new regulations never did go into effect, but the DOL recently decided to revisit the issue.

So what’s new?

In a nutshell, the proposed rule (which is expected to go into effect in January 2020) would require that all employees earning less than $35,308 per year (or $679/week) – regardless of their job duties – be paid overtime for working 40 hours in a work week.  Overtime is typically equal to one and one-half times the employee’s regular rate of pay.  This means that employees who are now exempt from receiving overtime will no longer remain exempt if they earn less than $35,308 per year.

Without sounding like the boy who cried wolf, now is the time for covered employers to start preparing.

What does this mean?

For exempt employees earning at least $679/week, nothing will change.  However, employees who are now classified as exempt but who are earning less than $679/week will lose their exempt status if and when the new rule goes into effect.

Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, and it 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.

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

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

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

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ALL RISE – This Moot Court Is Now In Session

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Assouline & Berlowe has a long history of supporting both the legal and non-legal community in South Florida.  From its inception, the Firm has been involved in numerous charitable events and community endeavors.

As part of its support for the local legal community and the South Florida Law Schools, the Firm supports St. Thomas University’s School of Law Moot Court Room, where oral argument by the Florida’s Third District Court of Appeals is often held.

We as a Firm give thanks to the hard work of the local law schools’ professors and staff, which has allowed the legal community to thrive and produce high quality lawyers and judges.

Thank you.

Eric N. Assouline, Esq.

Managing Partner

@assoulineberlowe

 

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SCOTUS: Register Your Copyrights to Sue

 

Artists across the United States that wanted to sue to protect their mental expressions (copyrights) have had to figure out if a copyright registration was required to file a lawsuit, or if simply applying forregistration was enough.   In the Eleventh Circuit, which includes Florida, a plaintiff is required to secure a copyright registration from the U.S. Copyright Office before filing a copyright lawsuit.

On March 4, 2019, in a long-awaited decision, Justice Ginsberg delivered the unanimous opinion of the Supreme Court of the United States (SCOTUS) in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, et al, No. 17-571, 586 U.S. ____ (March 4, 2019).    The question before the Court was whether registration is secured under Title 17 of the Copyright code by simply filing the application, depositing the copies of the work, and required fee, or if registration occurs once the Copyright Office reviews and registers the copyright.  SCOTUS agreed with the Eleventh Circuit and affirmed that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.”  SCOTUS also held that a copyright owner can recover damages for infringement that occurred both before and after registration.

The Fourth Estate decision notes the increased time by the Copyright Office in progressing copyright applications.  Registration processing times have steadily increased from 1-2 weeks in 1956 to numerous months today.  Depending on the type of work, it may take a year.  While the delays are largely attributable to staffing and budgetary shortages that Congress could resolve, it is not within the purview of the courts to cure.

While the average pendency of a copyright application has increased significantly, there is an option to secure a copyright registration faster.  When filing a copyright application, the applicant can select to file the application on an expedited basis.  This often results in the Copyright Office, if appropriate, registering the copyright within 1-2 weeks.  One of the reasons to apply on an expedited basis is the representation that litigation is forthcoming.  However, the filing fees for applying on an expedited basis is over 10 times the normal filing fees, which can be quite costly.

Instead of dealing with expedited filing fees, it is in the interest of copyright holders to apply for protection as early as possible.  If the claimant applies for copyright protection within 90 days from publication, the claimant preserves their ability to seek statutory damages and attorneys’ fees in the event of infringement.  It is important that copyright holders routinely speak with an Intellectual Property attorney to review their portfolio and decide the best ways to protect their mental creations.

For any questions about copyrights, trademarks, or patents, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Assouline & Berlowe’s Litigation Department Selected as Top 19 of 116 for Miami

Assouline & Berlowe is pleased to announce that Expertise has selected Assouline & Berlowe’s attorneys as the top 16 law firm for litigation, out of 119 selected.

Expertise published on its website that it based its results on the following criteria when choosing its top 19 selections:

  • Reputation: A history of satisfied customers giving excellent recommendations
  • Credibility: Established in their industry with licensing, accreditations, and awards
  • Experience: Masters of their craft, based on years of practical experience and education
  • Engagement: Approachable and responsive to clients and available for new business
  • Professionalism: Dedicated to providing consistent quality work and impeccable customer service

The Expertise website also stated the following information:

The selection process is performed annually across business categories and geographies. Minor updates may be made throughout the course of the calendar year.

Hand-Picking the Best

Our team conducts a manual review to verify the accuracy of the selections. We then write unique and detailed business descriptions for each hand-picked businesses.

Coming off the heels of already winning the Daily Business Review’s Litigation Department of the Year for Real Estate and Other Litigation (for Small Firms of 69 attorneys or less), the firm management is humbled by this award.

 

ERIC N. ASSOULINE, ESQ.

PLEASE NOTE OUR NEW MIAMI ADDRESS

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

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

Miami · Ft. Lauderdale · Boca Raton

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Copyright Law – Supreme Court to Address Recoverable Costs

The Supreme Court of the United States has granted a petition for certiorari in the case styled as Rimini Street, Inc. v. Oracle USA Inc. in order to address split between the circuits as to the types of “costs” that may be recovered under the Copyright Act. 

As framed by the briefs in the case, Question Presented by the petitioner is: Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party, is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits, have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.

Currently, there are three (out of twelve) federal circuit courts of appeal which allow certain costs to be recovered.  Those circuits are the First, the Sixth, and the Ninth.  The federal circuit courts of appeal that do not allow recovery of these costs are the eighth and the eleventh (which controls all cases filed in Florida). 

The result of this decision may change the law in the Eleventh Circuit, as to what costs are recoverable under the Copyright Act.

 

ERIC N. ASSOULINE, ESQ.

PLEASE NOTE OUR NEW MIAMI ADDRESS

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

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

Miami · Ft. Lauderdale · Boca Raton

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SCOTUS ALERT: Trademarks and Bankruptcy

On Friday, the United States Supreme Court (SCOTUS) granted a petition for certiorari in the case called Mission Product v. Tempnology, in order to hear a case involving trademark law and bankruptcy law.  The issue that is to be heard relates to what happens to a trademark license when the owner of the brand files for bankruptcy.

Currently, the different Circuit Courts of Appeal are not all in agreement as to what should happen.  In certain particular Circuit Courts of Appeal, the licensor that files bankruptcy can use a particular bankruptcy code provision, identified as Section 363 under the Bankruptcy Code, in order to cancel the right of a licensee to use the bankrupt company’s trademark.  However, in certain other Circuit Court’s of Appeal, the courts have been allowing the trademark licensee the right to continue using the bankrupt’s trademark.

The issue is as much a question of trademark law as it is bankruptcy law.  Under the Bankruptcy Code, the law allows a bankrupt the right to accept or reject a contract, wherein both sides still have obligations.  This is known as an executory contract.  However, Section 363 contains an exemption for certain forms of intellectual property, but it currently does not include trademarks.

The two most well-recognized opinions where the courts’ position diverge is the Seventh Circuit and the First Circuit, which is where the Mission Product case is pending.  In essence, the Mission Product appellate court has held that courts should not impose upon a bankrupt the obligation to continue to monitor how its trademark was being used, which goes to the essence and policy of bankruptcy law.

Never a dull moment in intellectual property and bankruptcy law.

 

ERIC N. ASSOULINE, ESQ.

PLEASE NOTE OUR NEW MIAMI ADDRESS

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

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

Miami · Ft. Lauderdale · Boca Raton

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JUDGMENT INTEREST RATES – PARTY LIKE IT IS 2009!

As we have been updating on this blog over the past several years, Florida’s Interest Rates on Judgments is announced every quarter.  Over the past several quarters, interest rates have little by little steadily climbed.  Every quarter they are updated, either up, down, or they may remain the same.

 

As of this past Monday, October 1st, 2018, the new interest rate on judgments is now 6.09%.  This is the highest interest rate we have seen in Florida since December 31st, 2009, at which time rates were at 8%, and they steadily went down.

 

Eric N. Assouline, Esq.

Assouline & Berlowe, P.A.

www.assoulineberlowe.com

Miami – Ft. Lauderdale – Boca Raton

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