Tag Archives: Ellen Leibovitch

Can Employers Require Employees to Get the COVID-19 Vaccine?

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Happy New Year! 

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.

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

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eml@assoulineberlowe.com

www.assoulineberlowe.com

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EMPLOYERS: Are You Exempt from Paid Sick Leave for COVID?

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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:

  1. 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
  2. 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
  3. 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.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

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

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eml@assoulineberlowe.com

www.assoulineberlowe.com

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New Employment Law Developments

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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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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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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/

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Employment Law 101: Critical Issues to Know

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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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Protecting Employers from Sexual Harassment Claims

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As all of you know, today’s headlines have been dominated by stories of sexual harassment.  Last year, Bill Cosby and Donald Trump got most of the press, as did the decades-old charges against Bill Clinton.  This year, we have heard about complaints made against Harvey Weinstein, Bill O’Reilly, Roger Ailes, Kevin Spacey, Louis C.K., Roy Moore and others.  The list grows day by day.

Not all of these claims took place in a workplace setting, but many of them did.  Some of you may remember back in 1991 when sexual harassment in the workplace first became mainstream news.  I can still recall when Anita Hill accused Clarence Thomas, her former boss (and nominee to the United States Supreme Court), of sexually harassing her while the two worked together:  asking her out on dates even after she repeatedly refused, discussing sex in the work place, commenting on his own sexual prowess, etc.  After the hearings on Justice Thomas’ confirmation, lawyers like me first began seeing a slew of sexual harassment lawsuits brought against our employer clients.  In fact, I eventually became an employment lawyer exclusively because I had to learn how to defend these lawsuits, which had never before been handled by any of the lawyers in the large, litigation-driven firm where I was then working.

Over the years, employers – especially those who were sued and paid big-time attorneys’ fees and settlements – got smarter.  They developed anti-harassment policies, they trained their managers and employees, they hired sophisticated human resources managers to nip these claims in the bud and some even procured employer practices liability insurance (EPLI) coverage.  These actions, as well as the Supreme Court’s holding in Faragher v. City of Boca Raton case (which limited an employer’s liability for a supervisor who engages in sexual harassment at work), have made lawsuits for sexual harassment a rarity these days.

Although these lawsuits no longer dominate my case load, the tide could easily change with the new wave of sexual harassment claims in today’s headlines.  It will not be long before the person behind the “Me Too” post on Facebook brings a sexual harassment claim against her employer (note that individual harassers are not personally liable under applicable employment laws such as the Florida and federal civil rights acts; the employer bears sole responsibility).  Accordingly, my advice to smart employers is to be proactive today, and I have two key recommendations for how to do so:

First, all employers need to review their existing sexual harassment policies (or, heaven forbid, hire an employment attorney to draft one if you do not have a policy).  Make sure the policy clearly defines and prohibits any form of sexual harassment in the work place and describes a procedure for making complaints of harassment, including designating alternate persons to whom such complaints can be reported.  Although it should go without saying, the policy must be followed by the employer and must not be pure window dressing: complaints should be taken seriously, investigated and resolved and, if the complaint has merit, the offending employee should be disciplined.

Second, all employers should train managers AND employees on the policy.  Many employers have new hires simultaneously sign off on receipt of their handbook and sexual harassment policy without specifically training employees about recognizing, addressing and reporting sexual harassment in the work place.  And other employers wrongly assume that managers should know what to do if they see or are presented with a harassment complaint.  Employment attorneys and human resources consultants offer such training services, as do employee leasing companies; some EPLI providers may offer these services as well.  An investment in training goes a long way in establishing an harassment-free work place, and the costs of training are far less than those that may be incurred defending a lawsuit.

The old saying goes, “An ounce of prevention is worth a pound of cure.” If your business is ever forced to defend a sexual harassment claim, you will be in a better position to defend such claim by following the guidance above.  If I can assist you in any way, please call or email.

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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Labor and Employment Law Annual Update

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Partner Ellen Leibovitch, Florida Board Certified in Labor and Employment Law, will be speaking at the 17th Labor and Employment Law Annual Update and Certification Review. The annual course, presented by the The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section, is an advanced level course covering a wide array of labor an employment topic.  Ellen will be speaking on the Fair Labor Standards Act (FLSA) on January 26, 2017.  Given the recent law changes and case law surrounding the changes, this will be an informative panel about the FLSA.  Details about the event are below.

January 26 – 27, 2017
Gaylord Palms Resort & Convention Center
6000 W. Osceola Parkway
Kissimmee, FL 34746
(407) 586-0000

For those interested in attending, you can register for the event at the Florida Bar website.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

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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Federal Stop to New Overtime Rules

Do Not Disturb

Six months ago, Partner and Florida Bar Board Certified Labor and Employment Attorney Ellen Leibovitch wrote to tell you about new overtime regulations that were to go into effect on December 1 (see below). However, on November 22, 2016, a federal judge in Texas issued a nationwide preliminary injunction which effectively put a stop to these rules – for now.

The injunction will preserve the status quo until the court decides the rule’s validity, a decision which will come weeks or months down the road and will likely be appealed in any event.

For employers, this ruling means that the new rules will not go into effect on December 1 and that the old regulations will continue to apply until further notice. Additionally, measures the employers planned in contemplation of the new rules going into effect on December 1 can be put on hold for the time being. Employers can decide if measures already taken in anticipation of the sweeping rule changes – such as raising the salary of exempt employees to meet the expected $47,476/year (or $913/week) threshold – should remain in place, although reversal of these changes may be met with employee backlash.

A note of caution: employers should not assume that the overtime rules will never go into effect. This situation is eerily similar to the rule changes made in 2015 regarding the companionship exemption under the Fair Labor Standards Act. In that situation, the Department of Labor announced changes which would render the exemption inapplicable to third party (home care) providers, then the federal court issued an injunction to prevent the changes from going into effect, then an appeals court struck down the injunction; and the changes eventually went into effect a year after the original date. Given the current political climate, your guess is as good as mine as to whether this same scenario will occur with respect to the overtime rules. As always, I will continue to keep you apprised of any developments.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

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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