Tag Archives: employment

Employment Law 101: Critical Issues to Know

Assouline Berlowe Employment

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

sexual harassment

 

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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Ellen M. Leibovitch is a 2015 Finalist for Leaders in Law!

Leaders in LawAssouline & Berlowe, P.A. is proud to announce that Boca Raton Partner Ellen M. Leibovitch has been nominated for the 2015 Leaders in Law Award in Labor and Employment Law.  The South Florida Business & Wealth Leaders in Law Awards, created by Lifestyle Media Group, honors lawyers, law firms, and corporate counsel that promote excellence in their field of law, maintain the highest level of ethics, are committed to their community, and are proven leaders in their field.

Candidates for the Leaders  in Law Award are judged on outstanding litigation, advocacy, counseling, and advancements to the legal profession, along with contributions to the advancement of the bar, including public service, bar association activities, and pro bono activities.

The South Florida’s Leaders in Law April 29, 2015 at 5:30 p.m. at The Gallery of Amazing Things, 481 South Federal Highway, Dania Beach, FL 33004.  To purchased tickets to the event, click here.

Ms. Leibovitch is proud to be nominated as a finalist for such a prestigious award.  As part of her labor and employment law practice, Ms. Leibovitch routinely counsel clients on employee handbooks, training, and audits.  Employers receive training on topics such as, recognizing sexual harassment and discrimination in the workplace. Managers also need to know the dos and don’ts in hiring decisions, employee complaints, and complying with the Fair Labor Standards Act.  Also, some employers use the same employment applications, handbooks, and other forms for years without updating these forms with changes in the law.

Assouline & Berlowe is available to review employer policies, procedures, systems and documentation to ensure compliance with all applicable local, state and federal employment laws.  These preventative exercises will help all employers reduce the costs of non-compliance and avoid litigation in the future.  The often used maxim, an ounce of prevention is worth a pound of cure, is highly applicable for these type of employment matters.

For a thorough review of your employer policies and procedures, or for any questions about the Leaders in Law award, 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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Breaking News! Federal Court Puts Home Health Care Rule Changes on Hold!

laborAssouline & Berlowe, P.A. Board Certified Partner Ellen Leibovitch recently spoke at a seminary regarding important changes to the Fair Labor Standards Act (FLSA) that were set to take effect on January 1, 2015.  These changes are relevant to third party agencies who employ companions and live-in domestic service employees.

After this seminar, on December 22, 2014, the United States District Court for the District of Columbia – in Home Care Association of America v. Weil, 1:14-cv-00967-RJL – struck down significant portions of the new rules which were set to go into effect on January 1, 2015.  As Mrs. Leibovitch spoke about at the seminar , the new regulations would have 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).  The federal court determined that the Department of Labor (DOL) exceeded its authority and improperly sought to impose obligations on employers in violation of the plain language of the FLSA.

What does this mean to you and your businesses?  While the decision was a victory for many in the home health care industry, the court did not strike down the entire regulation, including the new definition of “companionship.”  What is clear from the decision is that the new rules will NOT be applied to live-in domestic care workers who reside in the private household where they are employed.  These workers will NOT, as the DOL had planned, be protected by the FLSA’s  overtime requirements, although the minimum wage requirements and the record-keeping requirements will remain enforceable as of January 1, 2015.

As for companions (not live-ins), the rules are still somewhat unclear.  It may take days or weeks to get a better handle on the situation, so please be on alert for further developments.  While it would appear that the rush to comply with the new rules has come to a grinding halt, everyone should remain proactive and ready for what happens next.  Mrs. Leibovitch will attempt to stay on the forefront and provide information as gathered.

Ellen M. Leibovitch is a Florida Bar Board Certified Labor & Employment lawyer and head of the firm’s labor and employment practice.  If Mrs. Leibovitch can be of any assistance to you regarding these rule changes, please do not hesitate to contact her using the information 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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The Boca Raton office of Assouline & Berlowe has moved!

Assouline & Berlowe’s Boca Raton, Florida office has recently moved to 1801 N. Military Trail (Suite 160), Boca Raton, Florida 33431.  Our Boca Raton office includes Partner Peter Koziol, head of the Intellectual Property Litigation practice, and Partner Ellen Leibovitch, Florida Board Certified and head of the Labor & Employment Law practice.

Mr. Koziol frequently counsels clients regarding their intellectual property needs.  Whether you need advice on protecting your inventions and intellectual property, or if you have recently been sued for infringement, Mr. Koziol is well versed to assess the situation and recommend the best course of action.  In today’s legal climate, patent assertion entities, or patent trolls as they are commonly referred to, are actively enforcing their IP portfolio against alleged infringers.  If you or your company need help defending an infringement lawsuit, contact Peter Koziol.

Ms. Leibovitch focuses her law practice on labor and employment counseling and litigation, in addition to commercial and business litigation.  If you are starting a new position and need an attorney to draft or review an employment agreement, call Ellen Leibovitch to make sure your rights are protected.  Or, if your company is setting up or modifying internal employee handbooks, non-compete agreements, or other employee-related agreements, Ellen can provide you the appropriate counseling to ensure applicable state and federal laws are followed.

Again, please remember that our Boca Raton office has changed physical location, but all our other contact information remains the same.

For more information on your business needs, call the attorneys at ASSOULINE & BERLOWE – The BUSINESS LAW Firm

http://www.assoulineberlowe.com

Miami (305) 567-5576

Ft. Lauderdale (954) 929-1899

Boca Raton (561) 361-6566

ASSOULINE & BERLOWE, P.A.

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

Miami · Ft. Lauderdale · Boca Raton

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LABOR LAW Update – 11th Circuit Clarifies Liquidated Damages Awards in FLSA Cases

11th Circuit Seal

In the case of Davila v. Menendez, decided on June 10, 2013, the Eleventh Circuit Court of Appeals, which controls all federal courts in Florida, clarified the respective roles of the jury and the district court in deciding issues relevant to claims arising under the Fair Labor Standards Act (FLSA) claims.

In the Davila case, the trial court entered a directed verdict in favor of the defendant employer on the issue of intentional, reckless or willful behavior, thus precluding an award of liquidated (double compensatory) damages.  The plaintiff appealed, arguing that the jury was first required to decide whether the defendant willfully violated the FLSA before the court could rule on liquidated damages.

The Eleventh Circuit agreed and held that the district court erred when it entered judgment as a matter of law that the defendant did not violate FLSA.  The appellate court clarified that the district court was required to await the finding of the jury as to whether the defendant willfully or in good faith violated the law before assessing liquidated damages.  The court further noted that a jury’s finding of willfulness will establish both the period of limitations (willful violations of FLSA allow for a three-year look back period whereas non-willful violations allow only a two-year look back) and the propriety of liquidated damages.  A jury’s finding of willfulness mandates liquidated damages whereas a non-willful finding leaves the question of liquidated damages to the district court’s discretion.

Davila v. Menendez, __ F.3d __, 2013 WL 2460199 (C.A.11 (Fla.)).

For more information on any labor or employment issues, please call

Labor & Employment Partner Ellen Leibovitch.

For more information on Mrs. Leibovitch’s practice, go to: http://www.assoulineberlowe.com/Ellen_Leibovitch.asp or you can contact her by e-mail at eml@assoulineberlowe.com

Assouline & Berlowe is a full service business law firm with offices in Miami, Ft. Lauderdale, and Boca Raton.

ASSOULINE & BERLOWE, P.A.

Miami: 305-567-5576

Ft. Lauderdale: 965-929-1899

Boca Raton: 561-361-6566

 

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