POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 24, 2012

A former Orlando-based employee of a national trucking company has filed a lawsuit claiming that she was terminated for serving on a federal jury, according to a recent article in the Orlando Sentinel.    In an unusual move, the court has appointed a lawyer to represent the former employee.

Whether or not the employee’s allegations are true, employers should remember that both federal and state laws make it illegal to terminate an employee for serving on a jury -- regardless of the length of service.

Under federal law, employers held liable are responsible for reinstating the employee, paying the employee’s lost wages and attorney’s fees, and paying a fine of up to $5,000. Under Florida law, employers held liable are responsible for paying the employee compensatory damages, attorney’s fees, and punitive damages.

Neither federal nor Florida law requires employers to pay jurors while they are serving on a jury. However, some county ordinances in Florida, and some states’ laws, do require employers to pay their employees while serving. 

If you have employees who have been called to serve on a jury, congratulate them for fulfilling their civic duty, hold their jobs open, and hope that it’s a short trial.  And ask an employment lawyer for advice if you are uncertain about your legal obligations.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 21, 2012

On February 16th  the Commerce and Tourism Committee of the Florida Senate reported favorably on a bill that would allow Florida employers to fundamentally alter the way that tipped employees are paid.  Senate Bill 2106 is now before  the Regulated Industries Committee.  The text of the bill is available here.  

Currently, the Florida minimum wage for employees is $7.67 per hour.  However, Florida law allows employers of tipped employees to take what is called a “tip credit” against wages of up to $3.02.  Employers who take the tip credit must pay tipped employees a direct wage of $4.65, which is equal to the minimum wage ($7.67) minus the applicable tip credit ($3.02).

The Federal Fair Labor Standards Act (FLSA) requires employers of tipped employees to pay a direct wage, which is equal to the federal minimum wage ($7.25) minus the federal tip credit ($5.12), or a direct hourly wage of $2.13 per hour.
  
Under Senate Bill 2106, Florida employers of tipped employees would have the option of not paying a direct hourly wage of $4.65.  Rather, employers could elect to pay a guaranteed wage for such tipped employees, equal to at least 130 percent of the state minimum wage, rounded up to the next cent (or $9.98 an hour).

If the employer makes the election, the employer would be deemed to have met the requirement to pay the Florida minimum wage, but would still be required to meet the requirements of the FLSA.  Thus, the employer would still have to pay a direct hourly wage of $2.13 per hour.  The employer would then be required to make up any failure of the combination of the $2.13 direct hourly wage and actual tips to equal the guaranteed compensation of at least $9.98 per hour.

If the employer failed to pay the guaranteed wage in the notice or engaged in retaliation against an employee, the employer would be liable for the unpaid wage, and an equal amount as liquidated damages and fees and costs.

Employers of tipped employees should stay abreast of developments in this area.

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 20, 2012

It’s never good news when the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) cites your business for violations. But there’s bad news, and really bad news, and a recent case in South Florida illustrates the difference.

On February 8, 2012, OSHA announced that it cited Hialeah-based Bennett Electrical Services Co. Inc. for three safety violations after an employee was injured and hospitalized as a result of a defective truck-mounted crane. According to OSHA, while moving concrete traffic light poles with the crane, the boom of the crane separated from the truck, striking the operator in the head, which knocked him off the operator's station and onto the ground.

OSHA cited the contractor for two serious violations and $8,400 in proposed fines for allowing modifications to be made to the truck-mounted crane without the written approval of the manufacturer and allowing the crane to continue to be operated despite known deficiencies. That was the bad news.

The really bad news was that OSHA also cited the contractor for a willful violation and a $42,000 penalty for failing to conduct annual inspections on a truck-mounted crane. OSHA contends that the employer was aware of safety concerns raised by OSHA based on previous citations issued in 2002 and 2006.

So what’s the difference between serious and willful violations?

Section 17 of the Occupational Safety and Health Act provides that “a serious violation exists where there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Serious violations carry a penalty of up to $7,000 for each violation.

A willful violation exists “where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.” OSHA’s Field Operations Manual states that “[i]t is not necessary that the violation be committed with a bad purpose or malicious intent to be deemed ‘willful.’ It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.” Willful violations carry a penalty may of not more than $70,000, but not less than $5,000, for each willful violation.

Penalties for violations of the Act, including those classified as other-than-serious, are set forth at Section 17 of the Act. An employer’s right to negotiate and contest OSHA penalties will be discussed in future posts.

Please see the following links for the announcement and OSHA penalties:

US Department of Labor's OSHA cites South Florida contractor...

SEC. 17. Penalties

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

The National Labor Relations Board has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.

The case examined an agreement under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

Employers may not prohibit class or collective actions in a judicial forum, but may require that arbitrations proceed only 0n an individual basis. Employers that use the kind of class action waivers that the NLRB found unacceptable should consider revising or withdrawing them.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 21, 2012

On January 25, 2012, NLRB Acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

The Memorandum covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they were undertaken pursuant to unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report highlights two issues that employers need to recognize:

• Employer policies cannot be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes about individual circumstances, which are not made in relation to group activity among employees.

The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to new forms of electronic communication. Three cases involving social media questions are currently pending before the Board and those decisions will certainly give further guidance as the application of labor law to social media develops.

The report may be accessed at www.nlrb.gov.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

On January 30, 2012, Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor is issuing a notice of proposed rulemaking to implement new statutory amendments to the Family and Medical Leave Act that would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The National Defense Authorization Act for Fiscal Year 2010 recent statutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.

The major provisions of the NPRM include:

• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

The U.S. Equal Employment Opportunity Commission (EEOC) launched an internal task force that will focus on expanding and improving outreach and technical assistance to small businesses. The task force will seek to find avenues in which the agency may better collaborate with the small business community.

The internal task force includes EEOC District Directors from the Birmingham, Charlotte and San Francisco offices; program analysts responsible for outreach from the San Antonio, Los Angeles, and Philadelphia offices; and representatives from the Offices of Field Programs, General Counsel, Legal Counsel, and Communications and Legislative Affairs.

The task force will try to make it easier for owners of small businesses to quickly access the information they need to understand their legal obligations so they are able to comply with those obligations.

The Task Force will work during 2012 to develop recommendations to the Commission, which will be presented in a public Commission meeting.

POSTED BY SCOTT T. SILVERMAN AND KIMBERLEY A. LOPEZ ON DECEMBER 19, 2011

In a decision issued on December 6, 2011, the Eleventh Circuit has ruled that an employer may not discriminate against a transgender employee on the basis of gender non-conformity. That case, Vandiver Elizabeth Glenn v. Sewell R. Brumby, -- F. 3d --, 2011 WL 6029978 (December 6, 2011) (11th Cir. 2011), makes clear that employers can be liable for sex or gender discrimination in taking adverse action against a transgender or transsexual, as with any employee, on the basis of the employee's failure to comply with gender-based behavioral norms and gender stereotypes.

The Plaintiff in Glenn was born a biological male, and in 2005 was diagnosed with Gender Identity Disorder ("GID").  In 2005, Glenn began taking steps to transition from male to female. In 2006, Glenn advised her direct supervisor that she was a transsexual and in the process of becoming a woman.  After Glenn advised her supervisor in 2007 that she was ready to proceed with gender transition and would begin coming to work as a woman, the head of Glenn's office, Defendant, Sewell Brumby, terminated her because "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable."  Brumby, testified in his deposition that he fired Glenn because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that Glenn would appear in woman's clothing.  Brumby further admitted that his decision to fire Glenn was based on "the sheer fact of the transition."

The Eleventh Circuit affirmed summary judgment in Glenn's favor explaining that "[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes." Because the case law already established that gender stereotype discrimination is prohibited, the Court held that discrimination against a transgender or transsexual individual because of her gender-nonconformity is clearly sex discrimination regardless of whether it is on the basis of sex or gender.  Brumby's deposition testimony provided direct evidence that he acted on the basis of Glenn's gender non-conformity, which mandated summary judgment for Glenn.

Although the case dealt with claims under the Equal Protection Clause of the Constitution, the decision clearly applies to sex discrimination charges against private employers under Title VII. As such, employers should ensure that workplace policies protect against transgender discrimination.  In addition, the decision reinforces that employers must prohibit discrimination against any employee on the basis of gender stereotypes and gender-based behavioral norms.

POSTED BY JENNIFER T. WILLIAMS ON DECEMBER 9, 2011

Workplace harassment is back in the news again recently, both in terms of allegations against high-profile public figures and the increasing frequency with which juries have been awarding multi-million dollar verdicts to employees.  With this heightened awareness of workplace harassment of all types, a refresher of workplace steps every employer can take to avoid harassment claims is particularly timely.

Employers should be proactive in preventing and addressing harassment issues, both from a legal standpoint and the standpoint of supporting positive workplace morale.  The following measures are essential to addressing workplace harassment:

• Implement a comprehensive anti-harassment policy which expressly prohibits all forms of verbal and non-verbal harassment, including touching, lewd comments, jokes or references, epithets, slurs and nicknames. The policy should explain that such conduct by managers, supervisors, employees, customers, and third parties is also prohibited. The policy should contain a strong anti-retaliation provision applicable to all complaints.
• Incorporate a complaint procedure for employees who have believe they have been harassed or have witnessed harassing conduct. Employees should have multiple options for submitting complaints to avoid being forced to make complaints to the alleged harasser.  Encourage employees to come forward with complaints where necessary.
• Ensure that these policies are properly communicated and distributed to all employees. Policy distribution and acknowledgement during new hire orientation is important as well as annual or bi-annual refreshers so that employees are reminded of the employer’s rules and expectations for workplace conduct.
• Train all employees on the importance of anti-harassment and anti-retaliation policies, including both supervisors and non-supervisors.  Set the tone that compliance is critical enough to necessitate training from the top to bottom of the organization.
• Safeguard against retaliation by conducting prompt, confidential investigations.  Communicate to employees that complaints will result in discipline against the harasser, including termination where appropriate.
• Take action where necessary to address and eliminate harassing conduct.  Such actions may include changing the employee’s supervisor; reversing an unwarranted tangible action (such as demotion, pay reduction, or schedule change); disciplinary action up to termination of the harasser; individualized coaching/training; or a combination of these actions.
• Create an active, visible human resources presence in the workplace so that employees are familiar with and feel comfortable addressing workplace issues with human resources personnel.

For more information on these issues, the EEOC provides extensive enforcement and policy guidance on employer liability for harassment:
http://www.eeoc.gov/policy/docs/harassment.html
http://www.eeoc.gov/policy/docs/currentissues.html

The Florida Commission on Human Relations also provides an informational video on sexual harassment.

POSTED BY KAREN M. BUESING ON SEPTEMBER 23, 2011

The workplace poster on employee rights under the National Labor Relations Act is now available as a free download from the NLRB website.

Most private-sector employers, both union and non-union, must display the poster where other workplace notices are posted as of November 14, 2011. Employers who customarily post personnel rules or policies on an internet or intranet site must also provide a link to the rights poster from those sites.

In addition, copies of the Notice will soon be available without charge from any NLRB regional office.

Employers are encouraged to be fully prepared to begin posting on November 14, 2011.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 29, 2011

On August 25, 2011, the National Labor Relations Board (the “Board”) issued a final rule requiring employers subject to the National Labor Relations Act (the “NLRA”), which is the overwhelming majority of businesses, to post a notice in conspicuous places, informing their employees of rights under the NLRA, together with NLRB contact information and basic enforcement procedure information. The final rule is scheduled to be included in the Federal Register on August 30, 2011, taking effect 75 days later.

Therefore, Employers, both union and non-union, must begin posting the required notice on November 14, 2011. Federal contractors will be deemed to have complied with this requirement by posting the notice of employee NLRA rights that is already required by the Department of Labor under 29 CFR Part 471.

The notice to employees must be at least 11 inches by 17 inches in size. The notice must be posted in all places where notices to employees concerning personnel rules or policies are customarily posted. Copies of the notice will be available on the NLRB website and from NLRB regional offices by November 1.

Translated versions will be available in the same manner and must be posted in another language at workplaces where at least 20% of employees are not proficient in English and speak the other language. Helpful questions and answers on the Rule may be found here.

The final rule largely tracks the language of the proposal, with some changes suggested by commenters. The most significant change in the final rule is the deletion of the requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner. Other significant changes include: clarifications of the employee notice detailing employee rights protected by the NLRA and unlawful conduct on the part of unions; clarification of the rule’s requirements for posting notices in foreign languages; and allowing employers to post notices in black and white as well as in color.

All employers subject to the rule, who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site, will be required to post the Board’s notice on those sites, as well as physically posting the required notice. The employer must also post the notice on internet or intranet sites in a language other than English for each group of employees constituting 20 percent or more of the employer’s workforce who speak another language.

The required notice represents the latest move in response to the apparent legislative defeat of the Employee Free Choice Act. In June 2011, the Board issued another Proposed Rule that would significantly shorten the time between union petitions and elections. Because unions typically lose support during an election campaign, this rule would most likely increase the percentage of union victories. Also in June 2011, the Department of Labor issued a Proposed Rule that would expand employer and consultant reporting requirements for so-called “persuader activity.”

It is certainly time for employers to take action to implement effective union avoidance strategies. Waiting to react until a union enters the scene should no longer be an option.

POSTED BY SCOTT T. SILVERMAN ON AUGUST 18, 2011

The National Labor Relations Board’s Acting General Counsel, Lafe Solomon, today released a report, which summarizes the outcome of investigations into cases involving involving the use of social media and employer media policies. Acting General Counsel Lafe Solomon stated his belief that the report will be of assistance to legal practitioners and human resource professionals.

In four cases involving employee use of Facebook, the NLRB Division of Advice found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. Therefore, the employees’ actions were permisisble under the NLRA, and employer discipline was an unfair labor practice.

In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In these situations, the employees’ actions were only related to personal goals and not for the benefit of the group. Thus, they were not concerted.

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. The policies in question could be read to prohibit protected concerted activity of employees to discuss, and perhaps seek to change, terms and conditions of employment for a group. Thus, they chilled protected employee rights.

A final case involved an employer’s lawful policy restricting its employees’ contact with the media. In this situation, the policy only prohibited conduct that could not possibly be considered protected concerted activity.

The report provides needed clarification of proper employer policies and practices regarding employee social media use under the NLRA. The report may be obtained from the NLRB website.

POSTED BY ANDREW LOEWENSTEIN AND SCOTT T. SILVERMAN ON AUGUST 4, 2011

As many employers know, the Fair Labor Standards Act (”FLSA”) requires most businesses to pay their employees the federal minimum wage, as well as time-and-one-half their regular rate for hours worked in excess of forty (40) per week. The FLSA provides that the prevailing party is entitled to attorneys’ fees. The FLSA therefore tends to be a fee-driven statute, because the amount of attorneys’ fees sought by a plaintiff typically exceeds the amount of any overtime actually owed. However, is it possible for an employer to resolve the employee’s claimed damages without having to pay the attorney’s fees sought by the employee’s counsel?

In a recent victory for employers, the United States Court of Appeals for the 11th Circuit said “yes,” finding that an employer who tenders the entire amount of overtime damages claimed by the employee prevents an FLSA plaintiff from collecting his or her attorneys’ fees. That case, Dionne v. Floormasters Enterprises, Inc., —F.3d.—, 2011 WL 318977 (July 28, 2011) (11th Cir. 2011), provides powerful leverage for employers against FLSA litigation..

Therefore, where an employer denies liability, but tenders payment of the entire amount of the FLSA wages clamed by a plaintiff, the employer will be able to dismiss the plaintiff’s lawsuit as mott and avoid liability for payment of the plaintiff’s attorneys’ fees. Of course, even prior to litigation, employers may moot a FLSA claim and deter a lawsuit for damages and fees by offering to pay the entire amount claimed to be owed. Employers should keep in mind their new leverage in addressing FLSA claims.

POSTED BY VENUS A. CARUSO ON JULY 28, 2011

In Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (February 14, 2011), the National Labor of Relations Board held that an employee’s secret tape recording of a meeting with his supervisor was protected activity; and, as a result, the employee’s termination was a violation of the National Labors Relation Act.

The basis of the Board’s decision was based, in part, on the fact that the supervisor had refused the employee’s request to bring a union representative to the meeting, a right the employee was entitled to under NLRB v. J. Weingarten, 420 U.S. 251 (1975). Under Weingarten, an employee who is represented by a union has the right to a union representative at an investigatory interview that may lead to disciplinary action. As a result, the Board viewed the employee’s recording of the meeting to be a method of documenting what the employee perceived to be a potential violation of his Weingarten rights and, as such, was protective activity.

The Board also considered whether the employee had violated any state or local law that prohibited secret tape recordings, and there was none.

While the employer had implemented a rule that generally prohibited employees from making secret recordings in the workplace, the employer had implemented that rule only after it learned that the employee had secretly tape recorded the meeting. Based on these facts, the Board found that the rule was, among other things, overly broad and ordered the employer to rescind the rule and notify all employees in writing that the rule was no longer in effect.

Employers should be mindful of this decision as it exemplifies the type of adverse consequences an employer may suffer as a result of refusing an employee’s Weingarten rights.

POSTED BY SCOTT T. SILVERMAN ON MAY 24, 2011

The National Labor Relations Board issued a complaint last Friday against Knauz BMW, a Chicago area BMW dealership, alleging unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership.

The employee, a car salesman, and coworkers were unhappy with the food and beverages at a dealership event. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted critical photos and commentary on his Facebook. Other employees had access to the Facebook page.

The following week, the dealership asked the salesman to remove the posts, and he immediately complied. However, shortly thereafter, the employee was terminated for posting the images and comments.

The NLRB alleges that the employee’s Facebook posting was protected concerted activity within the meaning of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment

Again, employers must continue to be cautious in their actions based on employees’ use of social media. Clearly, the NLRB is taking an expansive view of what constitutes protected concerted ativity under the NLRA.