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.
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.
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:
Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
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.
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.
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.
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.
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.
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.
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.
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.
Effective October 1, 2021, Florida’s minimum wage will increase to $10.00 per hour (from the current $8.65 per hour). This is the first in a series of annual increases designed to implement the voter-approved constitutional amendment to raise the state’s minimum wage to $15.00 per hour by September 30, 2026.
For tipped employees, the minimum wage will increase to $6.98 per hour (from the current $5.63 per hour). This rate will similarly increase up to $11.98 per hour by September 30, 2026.
Please make certain the persons or companies preparing payroll are aware of these changes as well as the resulting increases in the overtime rates.
If you have any questions, please feel free to reach out to Ellen.
As most of you know, President Biden recently outlined a multi-prong strategy designed to curb the current wave of the COVID virus. His plan includes the following points relevant to private employers:
• All employers with 100 or more employees must implement vaccine mandates for their workforce or require workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. OSHA is soon expected to issue an Emergency Temporary Standard (ETS) to implement this requirement and clarify which private employers are affected, i.e., how 100 employees should be counted. More than likely, the 100-employee determination will apply to the employer’s total number of employees rather than the number of employees at each worksite. The ETS should also require employers with 100+ employees to provide paid time off to those employees to get vaccinated or need time off to recover after vaccination.
• Mandatory vaccinations for all healthcare workers in healthcare facilities receiving Medicare or Medicaid reimbursement, including but not limited to hospitals, ambulatory surgical settings, and home health care agencies.
• Employers with vaccine mandates must consider accommodating only those employees with medical or religious exemptions, and employees who do not qualify for a medical or religious exemption may be subject to termination. Similarly, if an employer permits testing in lieu of vaccinations, an employee who refuses to test may also be terminated unless the employee requires an accommodation relating to testing.
To be clear, an employee requesting an exemption from the employer’s vaccination mandate due to a personal preference – rather than a medical or religious reason – is not protected from termination.
Religious exemptions or accommodations will surely increase in light of President Biden’s mandate, and since these requests are much more nuanced than medical exemptions, here is what employers should focus on in assessing these requests.
The threshold inquiry for any request for a religious accommodation is whether the employee has a “sincerely held religious belief, practice, or observance” that prevents the employee from receiving the COVID vaccine. Sincerely held religious beliefs include “moral or ethical beliefs as to what is right and wrong and held with the strength of traditional religious views.”
Equal Employment Opportunity Commission (EEOC) guidance states that employers should accept an employee’s claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption. The EEOC has identified four factors that may create doubt in an employer’s mind as to the sincerity of the employee’s religious belief, which include the following:
Whether the employee has acted in a way that is inconsistent with the claimed belief;
Whether the employee is seeking a benefit or an exception that is likely to be sought for non-religious reasons;
Whether the timing of the request is questionable, e.g., does the request follows closely on the employee’s request for the same benefit for a different reason; and
Whether the employer has other (secular) reasons to believe the employee is seeking the exemption.
Employers with an objective basis to question the employee’s stated religious belief should request additional information from the employee before deciding whether to grant the requested accommodation.
Even if the employer finds there is a valid religious reason behind the employee’s requested exemption, EEOC guidance (and other applicable precedent) further provides that an employer need not provide an accommodation if doing so would cause “undue hardship” to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, an employer may be able to show that accommodations (such as regular testing, creating a separate area in which the employee can work, purchasing of personal protective equipment, etc.) are too costly or burdensome or that an unvaccinated employee can compromise the safety of its workforce and patrons. The law does not require that an employee’s religious beliefs be prioritized over workplace safety.
In all accommodation cases, the employer must engage in an interactive dialogue with the employee requesting relief and evaluate each situation on a case-by-case basis. Employers are encouraged to seek legal counsel before denying a request for accommodation and also consider implementing, reviewing or updating any policies and procedures for handling requests for both religious and medical accommodations.
If you have any questions about the implementation of vaccine mandates or other employment-related issues, please feel free to Ellen using the following contact information.
The Fair Labor Standards Act (“FLSA”) is the federal law that establishes, among other things, that employees who are classified as “non-exempt” are entitled to be paid a minimum hourly wage and overtime pay when working more than 40 hours in any workweek. A person who brings a successful FLSA lawsuit is also entitled to attorney’s fees and liquidated damages. Generally, and conversely, “exempt” employees are those who are exempt from the minimum wage and overtime provisions of the FLSA. Exempt employees must be paid on a salary basis (and a minimum statutory required under the FLSA) and must perform certain duties. Exempt employees include executives, administrators, and professionals.
The question that we are considering now is this: when an employer fails to pay one or more weeks of pay to an exempt employee whose exempt status is not in dispute, does that render the employee non-exempt and, therefore, entitle such employee file a lawsuit for violation of the FLSA and, in so doing, recover the lucrative damages and other relief thereunder? The short answer is no.
The Southern District of Florida considered this very issue in the case of Tadili v. Ferber, 12-80216-CIV, 2013 WL 12101132, at *2 (S.D. Fla. Nov. 22, 2013). In that case, the plaintiff, an master dental technician (exempt as both a learned professional and a highly compensated employee), made the “convoluted argument” that since he did not receive his salary for five of the seven weeks he worked, he could not be considered an exempt employee. The court noted, “An employee who is either a learned professional or a highly paid employee who is not paid for work performed may have a breach of contract claim for nonpayment of wages, but such employee will not have an FLSA claim.” The fact that the employee was not paid did not allow him to claim he was entitled to a minimum wage as a non-exempt employee. Based on this reasoning, the court went on to grant the defendant’s motion for summary judgment.
Other cases holding that non-payment of wages to an otherwise exempt employee does not give rise to an FLSA claim include Nicholson v. World Bus. Network, Inc., 105 F.3d 1361 (11th Cir. 1997) (notingCongress’s intent in formulating the FLSA was to protect “poorer and powerless” workers, whereas the exemptions are carved out for those in higher employment positions who do not require such protections), and Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843 (6th Cir. 2012). See also Donovan v. Agnew, 712 F.2d 1509 (1st Cir. 1983).
It is not unusual for an employer to run into cash flow issues and be unable to meet their payroll obligations. When this occurs, employees may rush to hire legal counsel to sue, and savvy plaintiff’s attorneys know that the FLSA is the best and most lucrative basis for a collections claim. Additionally, the FLSA allows employees to personally sue business owners and managers as well if they come within the definition of “employer” under the statute. These lawsuits are often tough to defend (because liability is clear) and costly (because the statute provides for attorneys’ fees and liquidated damages). However, if the employee bringing the lawsuit is clearly exempt – based on their salary and their duties – the foregoing line of cases should knock the wind out of plaintiff’s counsel’s proverbial sails. No attorney can continue to litigate a claim in federal court unless the facts alleged are supported by the evidence and are warranted under existing law or a non-frivolous argument to modify the law.
As always, when faced with these issues or served with an FLSA lawsuit – or even a demand letter – the best practice is to always consult legal counsel. Whatever you do, do not ignore the threat of an FLSA lawsuit or actual claim.
Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19. However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work. The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.
According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.
Of course, there are always exceptions to the general rule. Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.
Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:
the duration of the risk
the nature and severity of the potential harm
the likelihood that the potential harm will occur
the imminence of the potential harm
If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.
Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.
Always best to contact legal counsel if you have any further questions.
Among other things, the Families First Coronavirus Relief Act (FFCRA) provides paid leave to employees to care for a child and paid sick leave. Though the FFCRA generally applies to employers with less than 500 employees, employers with less than 50 employees can be exempt if compliance with the FFCRA would jeopardize “the viability of the employer’s business as a going concern.” Upon enactment, Congress did not clarify the mechanism for claiming an exemption, but the Department of Labor (DOL) recently issued some guidance.
A small business (with fewer than 50 employees) may be exempt from certain paid sick leave and expanded family and medical leave requirements if: (a) leave is requested because the employee’s child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and (b) providing that employee such leave would jeopardize the viability of the employer’s business as a going concern. As to (b), an authorized officer of the business must determine that at least one of the following three conditions is satisfied:
the requested leave would result in the small business’s expenses and financial obligations to exceed available business revenues and cause the small business to cease operating at minimal capacity; or
the absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
there are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and those labor or services are needed for the small business to operate at minimal capacity.
The exemption applies only to leave requests under the FFCRA due to school closures and child care unavailability and does not exempt small businesses from providing sick leave for any of the other types of permissible requests under the FFCRA.
The DOL does not explain how small businesses go about claiming the exemption and specifically advises employers not to send any materials to the DOL. So what is an employer to do? We recommend having an authorized officer of the employer sign a statement verifying that one or more of the three qualifying reasons apply and attach supporting materials if available. The employer must maintain this record for at least four (4) years in case of a lawsuit, DOL audit or other challenge. Remember that this exemption only applies to employers with less than 50 employees and is otherwise inapplicable to employers with 51 to 499 employees.
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