So You Extended an Employment Offer to the Ideal Applicant. Now What?


After months of sorting through applications, you find what appears to be the perfect applicant.  His application boasts excellent academic credentials, unmatched work experience, and countless awards and accolades.  His interview is "textbook," and you are so excited that within minutes of him leaving your office you authorize the hiring manager to extend an employment offer, conditioned (thank goodness) on the outcome of a background check.  When you receive the background check results, you are surprised to learn that your star applicant has embellished his credentials and has a criminal history, including arrests and convictions for violent crimes.  Sound familiar? 

The background check has been an important tool in the employer's toolbox for years. In these challenging economic (and litigious) times, its importance cannot be underscored enough.  Whether an employee exaggerates his or her qualifications or fails to disclose a violent, criminal past, failure to conduct a background check can expose an employer to loss, liability and/or lawsuits.  Many resumes contain factual discrepancies regarding education and work experience or exaggerated information about skills and attributes.  Failure to identify such errors and omissions before the employment relationship commences can have unfortunate and costly consequences for employers. 

While the practice of conducting background checks on job applicants is certainly not new, it has undergone tremendous transformation in recent years.  The amount of information available about applicants continues to increase and has become less expensive to procure.  In consideration of the wealth of information now available at their fingertips, employers conducting background checks (either in-house or through consumer reporting agencies) must be ever more vigilant not to run afoul of federal and state equal employment opportunity laws, as well as state and federal privacy laws.  This is particularly so, given the EEOC's recent identification of "Eliminating Systemic Barriers in Recruitment and Hiring," including the targeting of "exclusionary policies and practices, . . . restrictive application processes, and the use of screening tools," as the first of five (5) nationwide priorities which will guide its enforcement efforts for Fiscal Years 2013 to 2016.

At the 18th Annual Akerman Labor & Employment Law Seminar, I will be discussing the different types of background checks available to employers in the digital age and the laws regulating same; the applicability of federal and state equal employment opportunity laws to such activities, including, but not limited to, a review of the EEOC Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964; and the overall risks and rewards of knowing whom you are about to hire.  I look forward to seeing you on April 18th!


Latest Developments Under the FMLA


There is some very interesting news in the world of the Family and Medical Leave Act (FMLA)!  The Family and Medical Leave Act is a federal law enacted by President Clinton that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons with continuation of group health insurance coverage under the same terms and conditions as if they had not taken leave. Some examples of the reasons for permissible leave include exigency leave and military caregiver leave for families of military service members, caring for a newborn or recently adopted child or a family member with a serious health condition, or an employee's own serious health condition.  

The U.S. Department of Labor recently released an updated version of its FMLA Advisor. The FMLA Advisor has been updated to reflect the expansions of FMLA protections that became effective on March 8, 2013. The Family and Medical Leave Act was amended to provide families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and allow more military families to take leave for activities that arise when a service member is deployed. The expansions also address the application of the FMLA to airline personnel and flight crews.  Due to the amendment, employers should ensure that their FMLA policies are up to date and encompass all of the changes to the Act.

I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.



Tweet, Follow, or Get Out of the Way: What All Employers Need to Know About Social Media in the Workplace


Facebook. Twitter. LinkedIn. YouTube. Blogs. Email. Texts. Social media in the workplace has become a fact of life for all employers. Companies are learning that these once feared social media sites can be powerful marketing tools, but also provide an open door for risk.  Employees can post or write things in these media that create liability for their company, cause public relations problems, or damage profits. 

Some companies initially reacted to these threats by shutting down employee access to these social networking tools in the workplace.  Then came "apps" which enabled employees to engage in social media at work, but on their own, personal iPhones and similar devices.  Is creating a policy eliminating access on the employer's network the solution, or does it fail to address the problems that can be caused by employees posting to these sites, and writing personal emails and texts, at work and at home on their own time using their personal devices?

Social media has become a powerful tool for employers to use in the pre-employment and hiring process.  But how far can an employer go?  Google searches may or may not be ok, but what about checking Facebook pages and Twitter feeds?  Some employers request Facebook passwords from applicants – is that appropriate?  Or worse, is it even legal?

Legislation protecting employees' and prospective employees' social media profiles on sites like Facebook and Twitter has already been passed in California, Illinois, Maryland and Michigan.  Password protection laws are moving their way through state legislatures in various other states including New York, Texas, Massachusetts and several others. So far, the Florida legislature has yet to enact a password protection law, and is not currently considering doing so.  Despite the absence of such a law in Florida, it is not recommended to demand social media passwords from your employees and applicants!

Once an applicant is hired, what rights does he or she have to voice complaints about their workplace or supervisor?  Facebook has become the modern day water cooler, a place for employees to vent their frustrations about work and the workplace.  But what restrictions – if any – are placed on the employer for disciplining the employee (like the dreaded "Facebook Firing") for making negative comments through social media?  During the past 2½ years, the National Labor Relations Board – through its Acting General Counsel, Lafe Solomon – has inserted itself into this discussion.  AGC Solomon and the Board have reviewed hundreds of cases involving "Facebook Firings" or similar, disciplinary action against employees based on actions taken by the employees on their personal social media pages.  While in some cases the firings were upheld, in many instances the Board found that the firings violated the National Labor Relations Act.

Join me at the 18th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other issues related to social media.  Hope to see you there!




OSHA Has Been Hard at Work - Will You Be Ready if OSHA Knocks at Your Door?


A look at a recent speech given by OSHA's Assistant Secretary, David Michaels, Ph.D., provides employers with insight into what agency touts as successes over the past several years and its vision for the year ahead.  Addressing OSHA's employees at its "All-Hands Meeting" in February 2013, Dr. Michaels noted that in recent years, the agency has:
  • Launched the new Severe Violator Enforcement Program to target the worst of the worst violators;
  • Issued a record number of significant and egregious enforcement cases including the largest fine in OSHA history;
  • Issued three major standards;
  • Strengthened the protections of whistleblowers;
  • Launched several new National, Regional, and Local Emphasis inspection programs.

Dr. Michaels revealed that in 2012, OSHA conducted nearly 41,000 Federal OSHA inspections, and another 51,000 with its State plan partners.  OSHA provided free on-site assistance to nearly 30,000 small and medium-sized businesses.  As OSHA moves forward,  Dr. Michaels noted, it will make increased use of its data to target high hazard workplaces.  Other areas of focus include protecting temporary workers and employees in hospitals and healthcare, which he stated have an "alarming high rate of worker injuries and illnesses."

Also in 2012, OSHA updated the Hazard Communication standard, which contains new label elements, a new safety data sheet format, and training requirements that must be completed by December 1, 2013.  Moving onto a another standard – albeit one in the early stages – Dr. Michaels reiterated that OSHA's Injury and Illness Prevention Program ("I2P2") remains its number one priority.   I2P2 is OSHA’s initiative to create a standard that would compel employers to find and fix hazards. 

Commenting on OSHA's continuing efforts to expand its Whistleblower Protections Program, Dr. Michaels stated that in 2012, the agency helped award nearly $27,000,000 to whistleblowers.  "But sanctioning employers who retaliate against workers, and making workers whole, are not our only goals," Dr. Michaels explained. "We are working hard to prevent retaliation from happening in the first place; we are sending a message to employers across the country that punishing workers for exercising their rights will simply not be tolerated."  In this regard, Dr. Michaels noted that employer incentive programs based on injury rates or reports can discourage workers from reporting injuries and that the agency is taking a close look at these programs to determine if they unlawfully discriminate or retaliate against workers or result in violations of OSHA's recordkeeping regulations.  Click here to view a copy of Dr. Michael's speech.

Clearly, the take away for employers is that it’s worth paying attention to those things to which OSHA is paying attention.  As we move forward in 2013, and OSHA's agenda under President Obama's second term, employers should ask themselves, "Are we ready?"  I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.


When Bad Things Happen to Good Employers: An Equal Employment Opportunity Update


I've had many clients tell me they can't believe they're being sued for discrimination. They tell me they treat their employees fairly, that they're not bigoted, that they would never discriminate against employees on the basis of their race or ethnicity or age or disability. They tell me they believe in equal opportunity, that their own nephew has a disability, and that their grandfather came to America on a raft, or through Ellis Island, and spoke of the pain of discrimination. They point to their multicultural, multiracial, age-diverse workforce and ask, "Does it look like we discriminate? Are you kidding me?"

I get it. But here's the thing: Even good employers can be accused of discrimination. Even a champion of women's rights such as Oprah Winfrey can have her company be the target of a pregnancy discrimination lawsuit.  Even the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination laws, can be accused of disability discrimination against one of their own employees. Bad things happen to good employers. 

There are many reasons for this. Here are a few:

  • You don't know your managers as well as you think you do. Sure, that manager you repose so much trust in seems like a really nice guy – when he's around you and other managers. But do you really know how he behaves around his subordinates? If he's a bigot, he's not going to make this obvious, not in this day and age. Bigots used to wear their bigotry on their sleeve. Today discrimination plays out in more subtle ways.
  • Some employees have a persecution complex. These employees have a tendency to attribute disciplinary actions to discrimination rather than their own shortcomings. Treating such employees fairly will not insulate you from a discrimination lawsuit.
  • Some employees claim discrimination in bad faith. Sensing a disciplinary action coming, they claim discrimination as a preemptive strike, knowing that any subsequent action taken against them may be seen as retaliatory.
  • Sometimes employees and employers have legitimate disagreements over whether an action is discriminatory. Take "English-only" policies in the workplace. Generally they are impermissible except when necessary to promote safety or efficiency. But what is "necessary" is often in the eye of the beholder. Similarly, the Americans with Disabilities Act may require an employer to offer a reasonable accommodation to a disabled employee. But reasonable people may disagree over what is reasonable. 

The bottom line is that no employer large enough to be covered by employment discrimination laws is immune from a discrimination lawsuit. But knowing the law, and keeping abreast of enforcement patterns, new legislation and regulations, and developments in case law can help you reduce your risk. I will be discussing these issues on April 18th at the 18th Annual Akerman Labor & Employment Law Seminar. I look forward to seeing you there.


New I-9 Form For Employers


The U.S. Citizenship and Immigration Services (USCIS) has published Introduction of the Revised Employment Eligibility Verification Form in the March 8, 2013, Federal Register. The new Form I-9 is available here. Employers should use the new form as soon as possible but have until May 7, 2013 before they will be penalized for not doing so. In addition, employers do not need to complete the new Form I-9 (Rev. 03/08/13) for current employees for whom there is already a properly completed Form I-9 on file unless reverification applies. The new form must be completed for reverification when the employee's employment authorization or documentation of employment authorization has expired. If the employer rehires an employee within three years of the date that a previous I-9 was completed, the employer may complete the new Form I-9 or complete Section 3 of the previously completed Form I-9. As always, specific questions concerning I-9 compliance should be referred to legal counsel. 


OSHA Announces Whistleblower Protections under the Affordable Care Act


The Affordable Care Act (ACA)'s whistleblower provisions may present a hazard for unsuspecting employers. On February 27, 2013, the Department of Labor's Occupational Safety and Health Administration (OSHA) released an interim final rule prescribing the procedures and time frames for handling whistleblower complaints filed under ACA, which prohibits retaliation against workers who report violations of the law's consumer protections. 

ACA contains various provisions to make health insurance more affordable and health insurance companies more accountable to consumers. Section 1558 of ACA amended the Fair Labor Standards Act adding Section 18C, which provides protections to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving tax credits that could translate to a tax penalty for certain large employers. Title I encompasses a range of accountability requirements for insurers, such as the prohibition against lifetime limits on coverage, exclusions due to pre-existing conditions or using factors like medical history to set premium rates. It also includes expanded benefits such as the requirement for most plans to cover recommended preventative services with no cost sharing. Workers who give their employer, the federal government or a state attorney general information about acts or omissions that they reasonably believe violate Title I of ACA will be protected from retaliation. 

ACA authorizes the Secretary of Labor to conduct investigations into complaints and issue determinations which are functions delegated to OSHA. OSHA's interim final rule establishes procedures and time frames for the filing and handling of such complaints. 

Retaliation complaints under 18C have to be filed within 180 days of when the alleged violation occurs. The violation is said to occur when the retaliatory decision has been made and communicated to the worker. Therefore, the limitations clock starts ticking when the employee is aware or reasonably should be aware of that decision, though the time for filing of a complaint can be tolled. 

Upon receipt of the complaint, OSHA must provide written notice to the persons named in the complaint alleged to have violated the Act of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. 

If the complainant makes the required prima facie showing and the respondent employer does not offer clear and convincing evidence that it would have handled the employee the same way absent the worker's alleged protected activity, OSHA will investigate whether there is reasonable cause to believe that retaliation has occurred. 

The assistant secretary for OSHA will issue written findings within 60 days of the filing of a complaint on whether there is reasonable cause to believe that complaint has merit. Complainants can file suit in a district court seeking de novo review within 90 days of getting that written determination or if more than 210 days pass without a final decision.


IRS Expands VCSP Program


On February 27, 2013, the Internal Revenue Service (IRS) announced its expansion of the Voluntary Classification Settlement Program (VCSP) to allow more employers to achieve certainty under the law by reclassifying their workers as employees for future tax periods.

The VCSP is beneficial for some employers because it allows employers to voluntarily reclassify their workers as employees for future tax periods, while only paying 10 percent of the amount of employment taxes that would have been due on compensation paid to the workers being reclassified for the most recent tax year, calculated under reduced rates. In addition, the employer will not be liable for any interest and penalties on the payment under the VCSP, and will not be audited for employment tax purposes for prior years with respect to the employee classification of the workers.

Employers who want to take advantage of these benefits must generally meet certain requirements to be eligible for the VCSP.  Specifically, an employer must be treating the workers to be reclassified as independent contractors or other nonemployees; additionally, the employer must have consistently treated the workers as nonemployees, including having filed any required Forms 1099, consistent with the nonemployee treatment, for the previous three years with respect to the workers to be reclassified. The employer cannot be currently under employment tax/payroll tax audit by the IRS. In addition, the employer cannot currently be under audit by the Department of Labor or a state agency concerning the classification of the workers or contesting the classification of the workers in court.

Under the revamped program, as stated above, employers under IRS audit, other than an employment tax audit, can qualify for the VCSP. Furthermore, employers accepted into the program will no longer be subject to a special six-year statute of limitations, rather than the usual three years that normally applies to payroll taxes. Please see the IRS's announcement and questions and answers document for more information.

Normally, employers are barred from the VCSP if they failed to file required Forms 1099 with respect to workers they are seeking to reclassify for the past three years. However, for the next few months, until June 30, 2013, the IRS is waiving this eligibility requirement. Details on this temporary change are in this announcement

Employers accepted into the program will generally pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Employers applying for the temporary relief program available for those who failed to file Forms 1099 will pay a slightly higher amount, plus some penalties, and will need to file any unfiled Forms 1099 for the workers they are seeking to reclassify. In determining whether to participate, an employer must also consider labor and employment law and affordable care act law implications.  Other laws may also impacted.  Accordingly, obtaining advice from counsel before participating in the VCSP is essential.


Employers Should Ask their Insurance Agents Whether Early Renewal of Health Insurance Coverage is Appropriate


While one of the greatest benefits of the federal Affordable Care Act ("ACA") is better access for all to quality healthcare, theoretically resulting in lower health care expenditures, there also are costs associated with the ACA. Many of these costs take the form of additional fees on participating insurers and health maintenance organizations in our nation's healthcare system.  The federal government will impose many of those fees beginning in calendar year 2014.  In general, these fees will only apply to the months of coverage that occur in calendar year 2014, but the cost to the employer will be spread out over the entire policy/contract year.  These fees will be passed along to employers in the form of premium increases.

There also will be additional operational cost impacts that only apply to health insurance policies or health maintenance organization contracts that become effective (or are renewed) on or after January 1, 2014. It is expected that changes such as these will result in very large premium increases for many employers, especially some small employers.   These premium increases will be especially large for employer groups that have younger and healthier employees.  All of these factors will lead to greater costs to provide insurance to employees, and will increase the cost of the insurance premium paid for the coverage.

To help mitigate the ACA's impact on their health insurance premium, employers, including small employers, should contact their health insurance agents or brokers to determine whether the employers should renew their coverage early, in late 2013, as opposed to waiting until their 2014 policy anniversary dates.  Employers renewing in late 2013 probably will pay a premium that is higher than they currently are paying, in part because of increasing medical costs, and in part because of the fees discussed above.  However, renewing early may allow employers to temporarily avoid some of the increased costs.

Early renewal will not be appropriate for every employer group.  For example, employers with a significant number of older employees, or with less-healthy employees, may not see as large of an impact.  Therefore, employers should contact their health insurance agent or broker to see if this is a solution that fits their particular needs.  Because this is such a complicated and evolving area, employers should carefully, and independently, review the advice given to make sure that it is consistent with their specific circumstances.


No, Pregnancy Discrimination is Not Legal in Florida (Despite What You May Have Read)


I just read an article entitled "Florida lawmakers look to end discrimination against expecting mothers."  Posted on the website of a Fox News affiliate, the article begins by stating:  

Pregnant women throughout the United States are protected from employment discrimination under federal law, but that's not necessarily the case in Florida. Two state lawmakers are now trying to change that fact.

The article goes on to quote one of the legislators who want to amend the Florida Civil Rights Act (FCRA) to prohibit pregnancy discrimination:

"Some (of the pregnant women) are terminated from their jobs or they go into a hostile work environment because of their pregnancy so we want to make sure we eliminate those kinds of things," said State Sen. Geraldine Thompson, D-Orlando.

Don't be misled by Senator Thompson or the Fox News article.  Pregnancy discrimination is illegal in Florida, as it is in every other state.   

It is true that courts disagree as to whether the FCRA prohibits pregnancy discrimination.  I wrote about this issue on this blog last year.  The proposed legislation attempts to end that debate. 

But make no mistake, federal law, specifically Title VII of the Civil Rights Act of 1964, has prohibited pregnancy discrimination since 1978, when the Pregnancy Discrimination Act amended Title VII.  

Employers with 15 or more employees are covered by Title VII.  Employees of such employers – including employees in Florida – are therefore protected from pregnancy discrimination.  That's because under the Supremacy Clause of the U.S. Constitution, federal law takes precedence over conflicting state laws.  

The FCRA also covers employers with 15 or more employees.  And the proposed amendments to the FCRA would not change that. So really, the issue of whether the FCRA prohibits pregnancy discrimination does not make a substantive difference.  

So why is this an issue? Well, a cynic might argue that it’s about political grandstanding.  Most voters don't understand the nuances of state versus federal law.  And most, I suspect, would be glad to hear that their representative voted for a law that prohibits pregnancy discrimination in employment.  For a legislator, supporting such a law would seem to be a no-brainer.  

There would be a practical effect to the legislation, though.  Many plaintiff-side lawyers prefer to litigate discrimination cases in state court, which is generally seen as more plaintiff-friendly.  If the proposed legislation is enacted into law, we will see more pregnancy discrimination cases filed in state court (under the FCRA) rather than in federal court (under Title VII).  That’s not an insignificant fact.  But it’s hardly a major civil rights issue, despite what the press and some legislators would like you to believe.


Employers Need To Evaluate Coverage Under The Affordable Care Act Now


Beginning in 2014, "large employers" may be assessed a penalty for not providing required coverage under the employer shared responsibility mandate of the Affordable Care Act.  This does not mean that employers need not worry about whether they qualify for the mandate until 2014.  Why you may ask?

Because an applicable large employer is defined by the regulations as one that has employed an average of at least 50 full-time employees (including both full-time and full-time equivalent employees or FTEs) during the preceding calendar year.  Thus, employers should start determining whether they will qualify for the mandate in 2014. Indeed, the look back period started on January 1, 2013. 

Leased employees, sole proprietors, partners in a partnership, members (owners) of an LLC taxed as a partnership, and 2% S-corporation shareholders are not employees. A full-time employee is an employee who was employed on average at least 30 hours of service per week. Hours of service include not only hours worked, but also all hours for which employees are paid or entitled to payment even when no work is performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence. 

All employees of a controlled group or affiliated service group are taken into account in determining whether the group together constitutes an applicable large employer. If a parent owns 80% or more of the equity in a subsidiary, or if the same 5 or fewer persons own 80% or more of the equity in another company and collectively own more than 50% of both companies, the companies will be considered a controlled group, and all employees of the controlled group must be combined together for purposes of calculating the 50 full-time employee threshold.

To determine if you are an applicable large employer, calculate:

1. The number of full-time employees, including seasonal workers, working an average of 30 hours of service per week for each month.

2. The number of FTEs, which is determined by taking the total number of hours of service of other employees, including seasonal workers, and dividing it by 120 for each month.  

3. Add 1 and 2 to determine your total full-time employees (including FTEs) for each month.

4. After performing the calculation for each month, add all of the numbers determined in step 3 for the entire year and divide by 12, dropping any fraction to the lower whole number. If this number is 50 or more, you are an applicable large employer and will be responsible for complying with the employer shared responsibility mandate during 2014.

An exception exists, however.  If your workforce exceeds 50 full-time employees for 120 days or less during the preceding calendar year, and the employees in excess of 50 who were employed during that period of no more than 120 days were seasonal workers, you are not an applicable large employer. The regulations state that for purposes of this particular exception, four calendar months may be treated as the equivalent of 120 days, and that the four calendar months and 120 days are not required to be consecutive.

In summary, employers who wish to avoid being subjected to the mandate in 2014 must be diligent in the hiring of full-time employees and the hours of non-full time employees.


New Fair Credit Reporting Act Form For Employers


Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) established the Consumer Financial Protection Bureau (CFPB), and the responsibility for interpreting and enforcing the Fair Credit Reporting Act (FCRA) was transferred to the CFPB.  Although the CFPB began most activities on July 21, 2011, the CFPB just recently issued a new form for users of consumer reports to reflect the change in authority. Employers must now provide this new form when considering consumer reports in employment decisions (available here).

Although the form does not reflect a substantive change, employers should use this opportunity to review their compliance obligations under the FCRA. The FCRA applies to "consumer reports," which are defined as any communication from a consumer reporting agency about an individual which is used in whole or in part as a factor in establishing eligibility for employment.  A good summary of employer obligations under the FCRA is here (Appendix N).

In summary, before an employer requests a consumer report, it must:

1. Notify the applicant or employee that it may use the information in his/her consumer report for decisions related to employment. This notice must be in a stand-alone written document. The notice cannot be included in an employment application.

2. Obtain written permission from the applicant or employee to obtain the consumer report. This permission may be contained in the same document that is used to notify the applicant or employee that the employer will get a consumer report. If an employer wants the authorization to allow it to receive consumer reports throughout an employee’s employment, the written authorization must state this clearly and conspicuously.

3. Give the company that will provide the consumer report a written certification that the employer: (1) notified the applicant or employee and obtained their permission to get a consumer report, as required by §604(b) (2) of the FCRA; (2) will give the applicant or employee a copy of the consumer report and a summary of his/her rights under the FCRA before taking adverse action based on the contents of the consumer report, as required by §604(b)(3) of the FCRA; and (3) will not discriminate against the applicant or employee or otherwise misuse the information in the consumer report, as provided by any applicable federal or state equal opportunity laws or regulations.

After receiving the consumer report, if the employer may take adverse action based on the contents of the report, before actually taking the adverse action, the employer must: 

1. Give the applicant or employee notice that includes a copy of the consumer report; and

2. Give the applicant or employee a copy of the summary of rights under the Fair Credit Reporting Agency.


Liquidated Damages Are Not Mandatory For FLSA Retaliation Claims In Eleventh Circuit


Deciding an issue of first impression, in Moore v. Appliance Direct, Inc., the Eleventh Circuit has held that courts have the discretion to award liquidated damages in FLSA retaliation suits.  Unlike suits for minimum wage or overtime wages, where such damages are mandatory, absent a showing of reasonable good faith by the employer, plaintiffs in a retaliation case under the FLSA must show that the circumstances justify such an award.

In Moore, delivery truck drivers brought an overtime wage lawsuit.  During the pendency of that litigation, they were terminated.  Thereupon, they brought a second suit, alleging that their terminations were in retaliation for their overtime claims.

The truck drivers prevailed at trial on their retaliation actions, but the court declined to award liquidated damages (which are an equal amount of  proven damages as a measure to punish the defendant for violation of the law).  The drivers appealed this aspect of the lower court's ruling, asserting that the award of such damages is mandatory in retaliation cases, absent a showing of reasonable good faith action by the employer, just as it is in overtime and minimum wage actions.

The Eleventh Circuit observed that the plain language of the retaliation statute directed that courts shall impose such relief as may be appropriate to effectuate the purposes of the law; while, in contrast, the overtime and minimum wage statute stated that courts shall impose an additional amount as liquidated damages.  Thus, the imposition of liquidated damages was clearly meant by Congress to be discretionary.

Therefore, the Eleventh Circuit concluded that the award of liquidated damages, as well as any other damages for retaliation is discretionary upon a determination of whether doing so would be appropriate under the facts of the case.

The important point for employers is to establish facts that would make an award of damages inappropriate. Employers must be ready to defend any actions taken against employees who have made FLSA complaints.  If an employer can show that it had reasonable grounds for the action, apart from asserted retaliation for protected activity, the employer may be able to avoid damages.  Documentation of the legitimate, non-retaliatory reasons for the adverse employment action is, of course, critical.



DOL Expands FMLA Eligibility to Families of Eligible Veterans and Military Families


Military family leave, enacted in 2009, provides for two forms of Family Medical Leave Act (FMLA) leave benefits related to military service: Qualifying Exigency and Military Caregiver Leave.  On February 5, 2013, on the twentieth anniversary of the FMLA, the U.S. Department of Labor (DOL) issued a Final Rule expanding FMLA protections. One of the expansions provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members. The expansion also enables more military families to take leave for activities that arise when a service member is deployed.  The expansions will go into effect March 8, 2013.

Current FMLA Military Family Leave Benefits:

FMLA Qualifying Exigency Leave:

  • A non-medical activity that is directly related to the covered military member's active duty or call to active duty
  • Seven categories of qualifying exigencies include:
    • Short notice deployment
    • Military events and related activities
    • Childcare and school activities
    • Financial and legal arrangements 
    • Counseling
    • Rest and recuperation
    • Post-deployment activities

FMLA Military Caregiver Leave:

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness.
  • Employee must be the son, daughter, spouse, parent or the "next of kin" of the covered service member

The 2013 Final Rule highlights include: 

  • Expansion of the definition of a covered service member: Includes veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
  • Definition of a covered veteran: The Final Rule defines a covered veteran as a veteran who has been discharged or released under conditions other than dishonorable within the five-year period preceding the date the employee first takes military caregiver leave to care for the veteran.
  • Inclusion of Pre-Existing Injuries:  Expands the military caregiver leave provision to provide leave to eligible family members if the veteran was a member of the Armed Forces at any time during the period of five years preceding the date of the medical treatment, recuperation, or therapy.
  • Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces: The Final Rule expands the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serve in the Regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the Regular Armed Forces or the Reserve components, must be deployed to a foreign country.
  • Certain changes to the categories of qualifying exigency leave, including:
    • Increasing the amount of time an eligible employee may take qualifying exigency leave related to the military member's Rest and Recuperation to a maximum of 15 calendar days. This leave may only be used while the military member is on Rest and Recuperation leave.
    • Creating a new qualifying exigency category that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member's parent who is incapable of self-care where those activities arise from the military member's deployment or impending deployment, such as arranging for alternate care for the parent; providing care for the parent on an urgent, immediate need basis; admitting or transferring the parent to a care facility; and attending certain meetings with staff at a care facility.
  • Expansion of health care providers authorized to certify a current service member's or veteran's serious injury or illness: The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military. 
  • If a medical certification is obtained from a non-military affiliated health care provider, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions.


Employers Must Examine Their Employee Agreements for Compliance With the National Labor Relations Act


Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a decision in Quicken Loans, Inc., which found confidentiality and non-disparagement provisions to be unlawful under the National Labor Relations Act (NLRA). The decision is not surprising, and is in accord with the trend of the NLRB to find common employer conditions to violate the NLRA.  

When Quicken Loans sued former employees for asserted violations of a "Mortgage Banker Employment Agreement," which all mortgage bankers had signed during their employment, one of the defendants filed an unfair labor practice charge, alleging that certain provisions of the Agreement violated the NLRA. Specifically, the former employee challenged a provision that required employees to "hold and maintain all Proprietary/Confidential Information in the strictest of confidence" and stated that employees could not "disclose, reveal or expose any Proprietary/Confidential Information to any person, business or entity." The agreement broadly defined "Proprietary/Confidential Information" to include "any non-public information relating to or regarding the Company's . . . personnel," including "personal information of co-workers . . . such as home phone numbers, cell phone numbers, addresses, and email addresses" as well as "personal financial information, . . . background information, personal activities, information pertaining to work and non-work schedules, contacts, meetings, meeting attendees, [and] travel[.]" In addition, the former employee asserted that a provision, which prohibited employees from "publicly criticiz[ing], ridicul[ing], disparag[ing], or defam[ing]" Quicken or its "products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including . . . any statements made via websites, blogs, postings to the internet, or emails . . . )" was also  overbroad in violation of the NLRA

The ALJ concluded that the two provisions at issue violated the NLRA because they "would reasonably tend to chill employees in the exercise of their Section 7 rights." The first provision would have unlawfully prevented employees from discussing with others, including fellow employees or union representatives, the wages and other benefits that they receive and the names, wages, benefits, addresses or phone number of fellow employees.  As these types of communications are protected by the NLRA, the provision was unlawful.  Further, the provision that prohibited public criticism of the employer violated the employees' protected concerted rights under the NLRA to make public statements against the employer and its products in order to appeal to the public, or their fellow employees, to gain support. 

But, what was the impact of this decision?  The ALJ ordered Quicken to cease and desist from maintaining these provisions and to notify its mortgage bankers that the provisions would not be enforced.  Further, Quicken was required to notify employees that it would not prohibit discussions of terms and conditions of employment, as protected by the NLRA.  Effectively then, Quicken' s lawsuit, at least as to these two provisions, was terminated, because Quicken would be in violation of the Order if it were to continue to pursue the asserted violations.

The case demonstrates that it is not enough for employers to simply examine their social media and other policies for compliance with the NLRA.  Rather, employers must re-examine all of their employee agreements to identify any that may be overbroad.  Employers may then need to have employees sign revised agreements in accordance with the applicable state law or be subject to having enforcement barred. As I will discuss at the Akerman Annual Labor & Employment Law Seminar, the NLRA has definitely invaded the non-union workspace.


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