Akerman Labor & Employment Breakfast Seminar Provides Guidance on Conducting Workplace Investigations


Today's employers are often called upon to conduct internal investigations into claims of workplace misconduct. When performed correctly, a proper workplace investigation can effectively shield an employer from liability in the face of many types of employment related claims. However, a poorly performed or ineffective workplace investigation can not only fail to protect the company from liability, but can actually increase potential exposure to an employee's claim. Now more than ever it is important for employers to learn the proper way to conduct an internal investigation.

Topics to be covered include:

  • Whether and to what extent to initiate a formal investigation
  • How to choose the right investigator
  • Best practices for conducting witness interviews
  • How to discipline violators when warranted

Armed with the information provided at this seminar, employers can feel confident in their ability to conduct an effective workplace investigation.


EEOC Updates Enforcement Guidance on Arrest and Conviction Records


The Equal Employment Opportunity Commission has updated its enforcement guidance on employers’ use of arrest and conviction records in making employment decisions.

The enforcement guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records.  The guidance clarifies that the selective use of arrest and conviction records may constitute disparate treatment discrimination in violation of Title VII.  The guidance also explains how a neutral policy or practice that has the effect of screening out a protected group may violate Title VII under a disparate impact theory if the employer cannot show that the policy or practice is job related for the position in question and consistent with business necessity.   Exclusions based  solely on arrests will never meet this test,  but conviction-based screens may, if the employer considers the nature of the crime, the length of time since the crime, and the job requirements.

Of particular interest are the “best practices” the EEOC recommends when employers are considering using criminal records in making employment decisions.  These “best practices” are:


  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination and how to implement policies and procedures consistent with Title VII.

Developing a Policy

  • Develop a narrowly tailored written  policy and procedure for screening  applicants and employees for criminal conduct. 
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence. 
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
    • Include an individualized assessment. 
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures. 

Questions about Criminal Records

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. 


  • Keep information about applicants’ and employees’ criminal records confidential.  Only use it for the purpose for which it was intended. 


NLRB Acting General Counsel Issues Memo on New Representation Case Procedures


Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30.  Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged.  Briefly, the changes to the rules are:

1) An explicit statement that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists.

2) Hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation. Importantly, issues that will not clearly affect the results of an election are to be deferred until after the election

3) Hearing officers have discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director.

4) Most requests for Board review—with the exception of special permission to appeal—are postponed until after the election.

5) The requirement of a 25 day delay between the direction of an election and the actual election is eliminated.

As explained by the Board, the changes primarily affect procedures in elections for which the parties cannot agree on unit, eligibility and similar issues.

The General Counsel’s office also issued a set of frequently asked questions, which explain the Board’s revised rules and the procedures that will be followed by regions in elections.

Employers should understand that the new procedures will dramatically shorten the time period between a petition and the actual election.  Therefore, employers should no longer assume that there will be sufficient opportunity for an effective campaign.  Consistent proactive union avoidance strategies should be considered.



Transgender Workers Are Protected by Title VII, Rules EEOC


The EEOC has ruled that claims of discrimination based on transgender status, also known as “gender identity,” are protected by Title VII.

In a decision issued on April 20, 2012, the agency found that the claims of Mia Macy ("Macy"), a transgender woman who had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATFE”), were cognizable under Title VII.  Macy, who had “presented” as a man when she applied for the position, alleged that she was denied the position when she informed ATF that she was in the process of transitioning from male to female.

The EEOC reasoned that Title VII prohibits not merely discrimination based on sex, but also on gender, i.e. on the “cultural and social aspects associated with masculinity and femininity.”  Thus, decisions based on transgender status constitute gender discrimination, according to the EEOC.  The EEOC cited numerous court decisions that have reached the same conclusion, including the Eleventh Circuit’s recent decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

But what does “transgender” mean? A male who is in the process of converting to female through surgery and hormone treatments is clearly transgender, but what about a cross-dresser?  Are employers prohibited from taking into account the fact that a male applicant is a “drag queen”, or that a female applicant wears her hair short, applies no make-up, and appears androgynous?

The answer would appear to be yes.  According to the American Psychological Association (“APA”) web site, “transgender” is “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.”  That definition would seem to cover a wide range of people apart from those who have physically converted, or are in the process of converting, from one sex to another – including cross-dressers and people who appear androgynous. 

The lesson of the Macy decision is clear:  Employers faced with an applicant or an employee who does not meet gender-based cultural and social norms should be aware that discriminating against such persons based on their identity, behavior or appearance may constitute a violation of Title VII. 


NLRB Stays Implementation of Notice Posting Rule


The D.C. Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board's Rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.  In  light of this order, the Board has stated that regional offices will not implement the Rule, pending the resolution of the issues before the DC Circuit Court.  The Board explained that its action was necessary in order to assure uniform implementation and administration of agency rules. 

The Board represented that it plans to appeal the D.C. District Court's decision that the enforcement mechanisms of the Rule were impermissible.  In addition, the Board will appeal the South Carolina District Court opinion, which found that the NLRB lacked authority to promulgate the Rule, rendering it completely unlawful.

Until further notice, therefore, employers should not post the NLRB rights poster.  Be sure to check this blog as more updates are sure to occur in this rapidly changing environment.



Firefighter's Race-Baiting Rant Renews Questions About Employers' Access to Facebook Pages


Do employers have a right to demand access to their employees’ Facebook pages to ensure employees’ posts do not reflect poorly on their employers? A Miami-Dade firefighter’s race-baiting rant about the Trayvon Martin case - posted on his personal Facebook page - is sparking new interest in this question.

Captain Brian Beckmann’s post, published on the website theGrio.com, criticizes the prosecutor in the George Zimmerman case for political posturing and states that “urban youth” are the products of “failed, sh*tbag, ignorant, pathetic, welfare dependent excuses for parents.” Beckmann’s post goes on to say that urban youth are “just misunderstood little church going angels and the ghetto hoodie look doesn't have anything to do with why people wonder if they're about to get jacked by a thug.”

The source of the story apparently had access to Beckmann’s Facebook page and sent a screen shot of his post to theGrio.com. The source expressed concern that the comments reflected "the thoughts of someone who responds to the homes of the very people" being denigrated in the post. The Miami-Dade Fire Rescue Department is investigating the matter.

For public sector employers like Miami-Dade County, the question of whether employers can demand access to their employees’ Facebook pages is complicated by civil service rules, collective bargaining agreements, and First Amendment rights. But for private sector employers in Florida, no law currently restricts an employers’ right to demand access to their employees’ Facebook pages.

That is not to say that requiring employees to disclose their Facebook passwords is a good idea. An employer’s routine demands to view employees’ Facebook pages would undoubtedly be viewed as heavy-handed and smack of “Big Brother.”

But where an employer has knowledge of discriminatory posts or other online behavior by an employee that reflects badly on their business, demanding access to the employee’s Facebook page may be prudent, and perhaps even necessary, to prevent liability or reputational injury to the employer.

Legislation may change the legal landscape on this issue. Maryland recently passed a bill that prohibits employers from asking applicants and employees for social media account log-ins and passwords. Several other states are considering similar legislation. Florida is not among them, for now, but federal legislation may be on the horizon. We will keep an eye on this fast-moving issue and report on new developments.


South Carolina Federal Court Strikes Down NLRB Notice Posting Rule


On Friday, April 13, 2012, the United States District Court for South Carolina held that the National Labor Relations Board ("NLRB") exceeded its authority when promulgating a rule which requires that all employers subject to the jurisdiction of the National Labor Relations Act ("NLRA") post a notice of employee rights.  In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al., Case No. 2:11-cv-02516-DCN, Federal Judge David Norton held that the NLRB violated the Administrative Procedures Act when promulgating the rule, and granted summary judgment to Plaintiffs on their claim that the rule was invalid.

As previously reported, on August 30, 2011, the NLRB published a Final Rule, which is currently set to take effect on April 30, 2012.  The rule is divided into two main parts: (1) Subpart A contains the requirement that all employers subject to the NLRA post notices, in conspicuous places, that inform employees of their NLRA rights, NLRB contact information and NLRB enforcement procedures; and (2) Subpart B states that a failure to post the required notice is an unfair labor practice and that the NLRB may toll the statute of limitations for a violation of the rule and find a failure to comply with the rule as evidence of unlawful motive in unfair labor practice proceedings.

Last month, the D.C. District Court issued an order on a separate challenge to the rule and held that the Subpart A notice posting requirement was a valid exercise of the NLRB's powers.  However, the D.C. District Court found that the NLRB's remedial measures in Subpart B of the rule were impermissible.

The South Carolina District Court disagreed with D.C. District Court and held that the rule was completely unlawful.  Initially, Judge Norton focused on Section 6 of the NLRA, which grants the NLRB the power to make, "in the manner prescribed by the Administrative Procedures Act,   such rules and regulations as may be necessary to carry out the provisions of" the NLRA.  Judge Norton found that while the notice posting rule may be helpful in carrying out the NLRB's functions, it was not necessary.  Further, Judge Norton reasoned that there is no provision in the NLRA, unlike several other federal labor statutes, which requires employers to inform employees of their NLRA rights. Thus, the rule could not be said to be necessary to carry out an explicit Congressional directive.  Judge Norton opined that the NLRA framework requires the NLRB to be reactive to election petitions or unfair labor practice charges and that the Board exceeded its powers by adopting a proactive notice posting rule.

The South Carolina District Court has not yet issued an injunction or other formal relief to Plaintiffs. Further, it is expected that the NLRB will seek to stay Judge Norton's order pending appeal.  Finally, the D.C. District Court's decision is currently on appeal.  Given judicial developments in this area, the NLRB may postpone the effective date of the rule again, or there may be some further judicial decision in advance of April 30, 2012.  Employers are advised not to display the NLRA notice rights poster prior to April 30, 2012 and to consult with counsel to determine the current status of the rule as of the current enforcement date.



Akerman Labor & Employment Law Seminar to Feature Discussion on New Unemployment Compensation Law Amendments and How They Help Employers


Employers should welcome the new amendments to Florida's unemployment compensation laws. Among other things, those amendments eliminate the provision that the unemployment compensation law is to be liberally construed in favor of the claimant, broaden the definition of "misconduct" which will disqualify a claimant from receiving benefits, and require claimants to take new steps to demonstrate efforts to find work.  "Misconduct" now covers certain conduct regardless of whether it takes place in the workplace or during working hours. It now specifically includes conduct demonstrating a "conscious" (rather than "willful") disregard of an employer's interests, carelessness or negligence that manifests an intentional disregard of those interests, chronic absenteeism or tardiness,  or a violation of an employer's known, valid and consistently enforced rule.

Prior to the amendments, claimants could receive unemployment compensation even though they were also receiving severance from their employer. Now, that severance will reduce the amount of unemployment compensation claimants receive. Further, the evidentiary burden for unemployment compensation hearings is relaxed under the new amendments – hearsay may now support a finding of fact if the party against whom it is offered has a reasonable opportunity to review it prior to the hearing and the hearing officer determines that it is trustworthy, probative and in the interest of justice to admit the evidence.

These are exciting changes for employers long frustrated by the unemployment compensation process. We are pleased to have the Hon. Alan O. Forst, Chairman of the Florida Unemployment Compensation Appeals Commission join me in a discussion of how these changes are playing out in the field at the 17th annual Akerman Labor & Employment  Law Seminar in Hollywood, Fla. on Thursday April 19. We hope you will join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp



Temporary Visa or More Permanent Solution? Immigration Law 101 at the Akerman Labor & Employment Law Seminar Has the Answers


The U.S. employer that wishes to have a foreign national conduct business with its company or work for its company in the United States should determine if a temporary visa or a more permanent immigration solution is required for time spent in the United States. As part of this strategy, the U.S. based employer should work closely with the foreign national to determine her educational background and employment experience abroad, especially if it is with a related entity of the U.S. based employer, in order to develop a well-rounded immigration plan.

Developing a successful immigration planning and compliance program can be accomplished by the HR professional that familiarizes himself with the I-9 Form, and understands the policy behind temporary employment options and permanent employment options. With new tools available to employers such as the E-Verify program, being able to track and manage the I-9 process and ensuring new employees are properly verified and existing employees are properly re-verified, the often complex world of immigration law and procedures can effectively be de-mystified.

In my Immigration Law 101 presentation at the 17th annual Akerman Labor & Employment Law Seminar, I'll address these topics and more. Come join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp


Negative Consequences May Flow From Workers' Compensation Denial


Your company just won its workers' compensation case, and the employee was denied benefits.  Time to celebrate, right? WRONG. You may have just bought yourself a civil lawsuit for damages.

In Ocean Reef Club, Inc. v. Wilczewski and Leon, No. 3D09-2779 (Fla. 3d DCA March 21, 2012), the Third District Court of Appeal made two findings of which all Florida employers should be aware: (1) an employer with knowledge of workers' compensation injuries, but who fails to properly report them, is prevented from claiming workers' compensation tort immunity, because the employee failed to file for benefits or because benefits were denied as time-barred; and (2) an employer cannot claim workers' compensation tort immunity when its carrier has denied coverage on the ground that the asserted injuries were not within the course and scope of employment.

In Ocean Reef, employees, a hair stylist and nail technician in a beauty salon, had notified their supervisors of asthma-like symptoms, headaches and respiratory problems, resulting from chemical fumes, for which they sought medical treatment.  However, neither they nor their employer gave notice to the insurance carrier of these illnesses.  It was only after Ocean Reef was sued for damages, that it notified the carrier, which denied coverage on the basis that the illnesses did not occur in the course and scope of employment and that the statute of limitations had run.  Ocean Reef then moved for summary judgment on tort immunity in the civil action, which was denied.  The denial then went to the Third District on appeal.

The Third District held that an employer could not fail in its statutory obligation to provide notice of work-related injuries, and then argue that the tort immunity applied, because the employees did not give notice, and that the workers' compensation claim was barred due to the passage of the statute of limitations.  The court also found that it would be inequitable for the employer, through its insurance carrier, to assert there were no work-related injuries and no workers’ compensation coverage, and then later, when the employee brought a tort action against the employer, to assert a workers’ compensation coverage defense.  An employer simply cannot take such inconsistent positions.

The lessons for employers are: (1) to make sure that supervisors make the required notice of injury so that the employee will be limited to the workers' compensation remedy;  and (2) to coordinate the defense of workers' compensation claims with civil litigation to make sure that inconsistent positions are not taken.  Had this employer made the required notice of injury during employment, or had made sure that an inconsistent defense was not taken in the workers' compensation proceeding, it would not now be looking at a significant civil damages exposure.


New EEOC Rule Is Good News For Employers


Do you ever get the idea that all developments out of Washington, DC are bad for employers?  Well, at least in this instance, there is some good news for a change.

On March 29, 2012, the EEOC issued its Final Rule on Disparate Impact and "Reasonable Factors Other Than Age" Under The Age Discrimination in Employment Act. http://www.eeoc.gov/laws/regulations/adea_rfoa_qa_final_rule.cfm

The U.S. Supreme Court had previously criticized the prior EEOC regulation, which had required employers to prove a "business necessity" for policies that had a disproportionate effect  on workers over 40.  Now, in response to a disparate impact claim, employers must only show that their practices are based on a "reasonable factor other than age," which is the RFOA defense.  As explained by the EEOC, the RFOA defense is much easier to prove than "business necessity."

The Final Rule does two (2) things: (1) it clarifies that the RFOA defense may be used in response to a disparate impact claim, not "business necessity"; and (2) it explains how the RFOA applies.  Importantly, an employer is only required to assert a RFOA defense when the employee has identified a specific employment policy or practice, and established that the practice harmed older workers substantially more than younger workers.  This is a tough standard for an employee to meet.  Moreover, even if the employee satisfies the test, to qualify for the RFOA defense, the employer must only show that it  reasonably designed and administered its policy to achieve a legitimate business purpose in light of the circumstances.

In summary, the employer must demonstrate: (1) that the criteria utilized in the policy or practice is related to a legitimate business purpose; (2) that managers and supervisor were given guidance or training on how to apply the factor to avoid discrimination; (3) that managers or supervisors were given limited discretion to assess employees subjectively; (4) that the adverse impact on older workers was assessed; and (5) the employer took steps to reduce harm to those in the protected age group.

Employers thus now have an easier defense to disparate impact age claims and specific guidelines to assert the defense.  Welcome news for once!


Horse Doctors Make House Calls: A Lesson in Why Boilerplate Non-Compete Agreements May Not Hold Up in Court


Non-compete agreements need to actually prohibit the competitive activities at which they are aimed.  Thus, they must reflect the reality of the businesses for which they are drafted. 

So, if you are drafting or reviewing a non-compete agreement, it's critical that you consider not only what the business does, but how it does it- and how a former employee might be able to take away business notwithstanding that boilerplate language you were thinking about using.

A recent decision by Florida’s Fifth District Court of Appeals illustrates the problem of boilerplate language.  The former employee, an equine veterinarian, signed a non-compete agreement, which provided:

B. During the term of this agreement, and for a period of two (2) years after termination thereof, Employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within a thirty (30) mile radius of 19801, County Road 561, Clermont, Florida [the employer’s business address].. 

All that boilerplate – “own, manage, operate, control, be employed by, assist, participate in, or have any material interest in” – sounds pretty impressive, right?

Not in this case.  Think about it – did you ever take your dog or cat to the vet's office and see a horse in the waiting room?   I didn't think so. The problem for the employer here was that equine veterinarians typically make house calls (or stable calls).  So, the location of an equine veterinarian’s office is unimportant – it's where the horses are that counts.  Because the plain language of the agreement did not prohibit the former employee from providing her services within the 30-mile radius, the 5th DCA reversed the trial court's injunction against the former employee.  The non-compete agreement, and all of its boilerplate language, was ultimately useless.


Don’t Ignore that IRS Notice of Levy - And Don’t Fire the Employee


An IRS ”Notice of Levy on Wages, Salary and Other Income” arrives in your mailbox concerning one of your employees? What do you do?  

First, don’t panic.  This is primarily a problem for the employee, whom the IRS has identified as being delinquent in certain tax payments.  

But don’t ignore the notice, either.  As the taxpayer’s employer, you have a legal obligation to levy the employee’s wages in accordance with the instructions set forth in the notice.  

Ah, the instructions.  They are a bit complicated. So read them carefully.  Then read them again to be certain you know what you’re doing. Basically, though, you need to inform the employee immediately of the notice, give the employee three working days after you receive the notice to claim exemptions, and then calculate the amounts that are exempt from levy using IRS Publication 1494.  Then begin levying the employee’s wages until the IRS sends you a release of levy.  Note that the usual restrictions on the amount of wages that can be garnished do not apply to levies from the IRS or state taxing agencies.  

Levying an employee’s wages is a major headache, right?  You bet.  Can you fire the employee for putting you through this?  No, at least not for a one-time levy.  A federal statute, 15 USC 1674 (part of the Consumer Credit Protection Act) provides:  “No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.”  So take an Advil, grab your calculator, and let the levying begin.


Manager’s Opposition to Employer’s Handling of Rape Allegations Not Protected Activity, Rules Eleventh Circuit


Title VII generally protects employees who oppose employment practices made unlawful by Title VII, such as sexual harassment.  But what happens when a manager disagrees with the way in which her employer handles an internal investigation into an allegation of sexual harassment?  Is the manager engaging in protected activity by voicing her disagreement?  That was the issue addressed by the Eleventh Circuit Court of Appeals in Brush v. Sears Holdings Corp., Case No. 11-10657 (11th Cir., March 26, 2012) (unpublished). 

Brush was a loss prevention manager who was charged with investigating allegations of sexual harassment made by a store employee.  Brush met with the employee alone.  The employee alleged that her boss had raped her.  But the employee requested that neither her husband nor the police be informed of the rape.  Brush told her own boss of the employee’s allegations and insisted that the company needed to contact the police.  The company declined, citing the incomplete status of the investigation and the employee’s own desire not to involve the police.

The company subsequently terminated Brush for violating the company’s sexual harassment policy in meeting with the employee alone, in suggesting to the employee that she had been raped without asking an open-ended question to see what the employee said, and in failing to properly investigate the claim by obtaining video evidence. 

Brush sued the company, alleging retaliation in violation of Title VII.  Brush asserted that her opposition to the company’s handling of the employee’s allegations constituted protected activity.  The district court disagreed and dismissed Brush’s complaint. 

On appeal, the Eleventh Circuit affirmed the lower court’s ruling.  “Brush’s disagreement with the way in which Sears conducted its internal investigation into [the employee’s] allegations does not constitute protected activity,” the court wrote.  “Since there is no evidence of Brush’s opposition to any unlawful practice [of Sears], it follows that Brush can support no claim under Title VII.”  While Brush opposed Sears’ failure to call the police, “[s]he has cited no state or federal law that would have mandated Sears take some action other that what it took.”

The court also rejected Brush’s argument that a manager’s role in reporting a Title VII violation always qualifies as a protected activity.  In so doing, the court adopted the “manager rule” that has been adopted by other circuits.  Under this rule, a management employee who, in the course of her normal job performance, disagrees with or opposes the actions of an employer is not engaging in protected activity.   

For employers in the Eleventh Circuit, the Brush decision creates a valuable defense to claims of retaliation by manager-level employees. 


"ABC's Session" Gets Back to Basics at Akerman's 17th Annual Labor & Employment Law Seminar


The more things change, the more they stay the same. As labor and employment lawyers, in-house counsel, and human resources professionals, we are thrown into a whirlwind of complex workplace legal issues on a daily basis. No matter what the issue, though, I find that these fundamental questions pop up on a consistent basis: 

  • Is this employee eligible for FMLA leave?
  • Does this medical condition count as a "disability"?
  • How many employees in a layoff trigger WARN Act notice?
  • Do we have to accommodate employees’ religious beliefs?
  • What are "protected characteristics" under Title VII?
  • How do I notify employees of their COBRA rights?

At the annual Akerman Labor & Employment Seminar, we will address these questions and much more during the ABC's of Labor & Employment Laws session. We will cover basic knowledge of several labor and employment laws we encounter every day: Title VII, ADEA, FMLA, ADAAA, WARN, Florida's Whistleblower Act, OSHA, and USERRA.

Even the most experienced human resources professionals and legal experts will find something new to add to their knowledge base, making them a better resource for their respective organizations. Join me for this interactive session as we get back to basics. To learn more about the Akerman Labor & Employment Law Seminar, please visit http://www.akerman.com/events/LELS12/overview.asp


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