Avoiding Misclassification of Workers Under the FLSA


The news of late has been filled with articles about employers who are being sued for the misclassification of workers and the failure to pay overtime.  South Florida continues to be a hotbed of this litigation.  While Florida has only 6% of the nation's working population, it also boasts 27% of cases filed nationally under the Fair Labor Standards Act.  We can continue to speculate as to why Florida has such an active practice in this area, but the reality is, as employers, your best defense to these types of claims is bringing the company into compliance with the law.

The latest types of cases filed under the Fair Labor Standards Act deal with the threshold issue of who is an employee.  The FLSA does not give much guidance to that question as it defines an employee as an "individual employed by an employer."  Therefore, most courts employ a myriad of tests to determine whether a worker is an employee.  There has been a significant increase in the number of claims filed regarding the misclassification of independent contractors and the hiring of unpaid interns.  This is a recent new layer of litigation, which accompanies the still strong ongoing litigation over the question of whether employees are misclassified under the White Collar Exemptions.  It is difficult for employers to keep up with the law in the area of misclassification, as the law is ever changing and the Department of Labor is taking positions with regard to White Collar Exemptions that are inconsistent with positions they took 10 years ago.

At Akerman's upcoming 19th Annual Labor & Employment Law Seminar, I will address these very issues.  First, I will discuss the issue of independent contractors and the various tests that are used to determine whether workers are properly classified as independent contractors, along with potential exposure for those who are misclassified.  In addition, we will explore the problem with unpaid interns and review the recent high profile cases that have been brought in the entertainment industries.  We will also examine the general rule, which is strictly construed, to determine who may be an unpaid intern.  I will also review the White Collar Exemptions, which include  executive, administrative and professional, as well as highly compensated, employees.  We will define the salary level, salary basis and duties tests as they apply to the White Collar Exemptions, which, if properly utilized, will exempt employees from the overtime requirements under the Fair Labor Standards Act.

I hope you will join us for this interesting and informative presentation on wage and hour issues at the April 4th seminar. I look forward to seeing you there.



Should Background Checks Be On Your New Employee Checklist?


"Where there's Pepsi, there's music" … is a slogan from a Pepsi marketing campaign.  No doubt the EEOC agrees – in 2012, Pepsi paid over $3 million to settle race discrimination claims and agreed to provide job offers and training because of its former background check policy.  According to a press release on the EEOC's website, the EEOC determined that "more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment."  The EEOC contended that Pepsi’s former policy barred job applicants even where there had been no conviction. 

Also in 2012, Integrity Staffing Solutions reached a settlement involving a black job applicant who had been denied a job based upon a felony conviction occurring 30 years prior to his application.  ISS had a prohibition against hiring individuals with felony convictions.  As part of the settlement, ISS modified this policy to preclude a wholesale ban.

So, does this trend mean that employers should dispense with criminal background checks?  In short, no.  However, the EEOC's position is that employers may not have blanket policies using criminal background checks against applicants or employees. 

The EEOC isn't the only threat to employers when it comes to the use of background checks.  In February, 2014, a class action lawsuit was filed against Whole Foods in California alleging Fair Credit Reporting Act claims stemming from its purported online application process which included forms (to be signed by applicants) which were designed to obtain background check information.  The outcome in the Whole Foods case is likely to impact the plaintiffs' bar and employers.

In light of the EEOC's increasing opposition to the use of criminal records in hiring decisions and the compliance issues arising under the federal Fair Credit Reporting Act, employers must stay current on the law in this area and be able to show that the use of backgrounds checks is either directly related to job performance or justified by a legitimate business necessity.   Additionally, it is imperative that employers have the required disclosure and acknowledgement forms in order to minimize the risk of ending up in the situation in which Whole Foods is now.

I will provide an update on the use of Criminal Background Checks at the 19th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other employment law issues.  Hope to see you there!


Employment Records Retention Requirements – What Employers Need To Know


Careful recordkeeping and retention practices in the employment context are required by various federal and state laws, not to mention, essential to protect an employer's interests and limit its liability in the event of an investigation, claim, or lawsuit.

There are a myriad of federal statutes requiring that employers compile and retain employment related records.  These statutes include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Fair Labor Standards Act, just to name a few.  Further, federal and state statutory limitations periods impacting employment related claims necessitate the retention of records for particular periods, often beyond those set by statutory recordkeeping requirements.  These retention obligations are compounded in the event of an investigation, claim or lawsuit, in which event, employers are required to suspend regular deletion and destruction practices pertaining to potentially relevant documents and  preserve such records indefinitely.

The task of determining what to keep, and for how long, can be a daunting and confusing task, particularly where the paper (or electronic files) never stop piling up.  So what is an employer to do?

First, employers must assess the landscape and identify laws setting or necessitating recordkeeping requirements.  Second, employers should establish a comprehensive records retention policy to ensure that records the employer is required to keep and records that may be useful for further reference are retained appropriately.  Third, in the event of an investigation, claim, or lawsuit, employers should immediately initiate a "litigation hold" to ensure the preservation of potentially relevant documents beyond normal retention periods, consulting with experienced employment counsel when necessary.

During my presentation at the 19th Annual Akerman Labor & Employment Law Seminar, I will walk you through the recordkeeping and retention requirements set by major federal laws, best practices in light of those requirements, as well as state and federal statutes of limitations, and heightened obligations arising in the wake of an investigation, claim or lawsuit.  I will also review the consequences of failing to retain and preserve required records and documents potentially relevant to an asserted claim.  I hope you will join me on April 4th!


The Lost Art of Conducting Effective Workplace Investigations


You are the HR leader for your organization.  Whether you are an executive, a human resources professional, an attorney, an owner, or – in many cases – hold more than one of these titles, when HR issues arise, they come to you.  

Not a day goes by when you are not faced with a new issue/problem/challenge that forces you to change your priorities for that day and attack this new one.  Whether it involves an employee claiming she (or he) was sexually harassed by their supervisor, or complaints of a manager slurring his speech and falling asleep at his desk, or threats of workplace violence from one employee against another, or receipt of a Charge of Discrimination by an employee claiming she was discriminated against based on her age, sex, religion, disability, etc., the "Employee Relations" part of your job never stops.  The more employees your organization has, the more complaints you receive from current and former employees, and the more workplace investigations you must conduct.

Conducting workplace investigations is one of the cornerstones of any HR professional's job duties.  Although there is not just one way to conduct an investigation, there are certain guidelines you should follow to ensure you are conducting a prompt and thorough investigation.  The initial determinations common to virtually all investigations include:

  • Recognize when an investigation in in order
  • Decide what the investigation should establish
  • Select appropriate investigators
  • Identify potential witnesses, documents, computer data, surveillance tapes, etc.
  • Plan the investigation
  • Organize a list of questions to ask the witnesses
  • Establish security for files and records.

Please join me at the 19th Annual Akerman Labor & Employment Law Seminar where we will discuss workplace investigations and other employment law issues.  The workplace investigation breakout session will be a "Case Study" in which we will examine multiple, real life fact patterns and will break down in detail the best way to conduct the investigation.  I hope to see you there.


Health Care Reform – New Guidance for Employers and Relief for Mid-Size Employers


Employers in all industries are well aware of the complexities of the Affordable Care Act, and the seemingly constant barrage of guidance that interprets the health care reform requirements that apply to them.  We have a recent perfect example.  A lengthy final rule was issued on February 12, 2014, jointly by the U.S. Department of Treasury and the Internal Revenue Service ("Final Rule"). 

The Final Rule does not delay the fundamental obligation of large employers (i.e., those with 100 or more employees) to offer minimum value, affordable group health plan coverage to their full time employees (i.e., employees working 30 or more hours per week) in 2015 in order to avoid penalties.  But the Final Rule does delay this obligation for mid-size employers with between 50 and 99 employees until 2016.  This is welcome relief for those mid-size companies.

The Final Rule also addresses many lingering questions about how employees' working hours must be counted under the Affordable Care Act.  Some of the categories of employees which have been most administratively problematic and for which we now have more certainty include the following: 

  • Seasonal Employees
  • Variable Hour Employees
  • Independent Contractors
  • Adjunct Faculty
  • Employees with Layover Hours
  • Employees with On-Call Hours
  • Temporary Employees Hired Through Staffing Firms

I will provide an update on this new Final Rule and cover other similar developments during my presentation on the Affordable Care Act – What Employers Need to Know, at the 19th Annual Akerman Labor & Employment Law Seminar. Hope to see you there!


I-9 Compliance in an Era of Increased Enforcement


I-9 investigations are at an all-time high.  Audits of employer I-9 forms increased from 250 in fiscal year 2007 to more than 3,000 in 2012. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million. The number of company managers arrested has increased to 238, according to data provided by U.S. Immigration and Customs Enforcement (ICE). 

ICE is the principal investigative arm of the U.S. Department of Homeland Security (DHS). Created in 2003, ICE has continued to receive additional funding and now has more than 20,000 employees in offices in all 50 states and 47 foreign countries, with a budget of over $5.65 billion.  Based on its resources, ICE has been able to develop a comprehensive worksite enforcement strategy aimed at promoting national security and protecting critical infrastructure by targeting employers who violate employment laws or engage in abuse or exploitation of workers.  With immigration reform still uncertain, the trend toward increased scrutiny of immigration related employment practices will likely continue in the foreseeable future.  As such, it is even more critical that employers maintain a strong immigration compliance profile.  Employers can no longer afford to believe that because they don’t hire foreign national workers, they don’t have any I-9 exposure or liability.  Employers should take efforts to safeguard I-9 compliance and be prepared for heightened enforcement.

So, how can you best prepare for a potential ICE audit?  For most organizations the key to I-9 compliance starts with a thorough self-examination of existing I-9 forms, current process and operating policy, and past practices aimed at getting your I-9 house in order.  Based on this data, analyze the results, initiate targeted training, and standardize your I-9 practices and procedures. As you will likely discover, the I-9 process is error-prone and hard to centralize. Therefore, you will want to implement a solid system to keep track of all the I-9 documents, deadlines, and work visa re-verification requirements. These steps are especially important for companies that have high turnover rates, large numbers of employees and/or multiple worksites.

Please join me at the 19th Annual Akerman Labor & Employment Law Seminar where we will discuss  these and other employment law issues.


New York Court Rules that Florida's Non-Compete Law is "Truly Obnoxious"


A New York appellate court has ruled that Florida law on non-compete agreements is "truly obnoxious" to New York public policy and cannot be applied against a New York employee of a Florida-based company.

The court's decision in Brown & Brown, Inc. v. Johnson and Lawley Benefits Group, LLC, 2014 WL 486750 (N.Y.A.D. 4 Dept., February 7, 2014) is significant because it is common for companies based in Florida to insert choice-of-law provisions in their non-compete agreements which provide that Florida law shall govern in the event of a lawsuit – regardless of where the employee works.  The Brown & Brown decision suggests that employers should rethink this strategy.

Brown & Brown ("B&B") is an insurance intermediary with headquarters in Florida.  B&B hired defendant Theresa Johnson in 2006 to provide actuarial analysis.  Johnson signed an employment agreement that contained three restrictive covenants, including a non-solicitation clause that prohibited Johnson from soliciting or servicing any client of B&B’s New York offices for two years after the termination of her employment.  The agreement contained a Florida choice-of-law provision.  B&B terminated Johnson in February 2011, and Johnson was subsequently hired by Lawley Benefits Group, LLC.  B&B sued to enforce the restrictive covenants.  

The trial court ruled that the choice-of-law provision was unenforceable because Florida bore no reasonable relationship to the parties or the dispute.  The appellate court disagreed but held that the choice-of-law provision was unenforceable for a different reason – because it is “truly obnoxious’ to New York public policy.  Specifically, the court noted that under New York law, one of the factors for determining whether a restrictive covenant is reasonable is whether it imposes an undue hardship on the employee.  In contrast, under Florida law, courts are required to construe restrictive covenants in favor of the party seeking to protect its legitimate business interests, and in evaluating the reasonableness of the covenant the court cannot consider the hardship imposed upon the employee.  Applying New York law, the court held that the non-solicitation covenant could not be enforced.  

The Brown & Brown case is not an anomaly.  The opinion notes that courts in Alabama, Georgia, and Illinois have also concluded that Florida law conflicts with the public policy of their respective states.  On the other hand, many courts in other states will enforce choice-of-law provisions.  So what should a Florida employer do with respect to the restrictive covenants of its out-of-state employees?  The best practice is to consult with legal counsel and determine whether a court in the other state is likely to enforce a Florida choice-of-law provision.  If the answer is yes, a Florida choice-of-law provision may be an employer's best bet.  If the answer is no, the covenants should be drafted so that they will pass muster under the laws of the state in which the employee works.


The Supreme Court Clarifies the Meaning of the FLSA's "Changing Clothes" Exception


In a near unanimous decision on Monday, the United States Supreme Court further clarified the multifaceted and oft-litigated issue of whether "donning and doffing" of some protective gear prior to or following a work shift falls within the "changing clothes" exception of the Fair Labor Standards Act ("FLSA").  The Court’s decision permits such actions to be deemed noncompensable in a collective bargaining agreement.   

In Sandifer et al. v. United States Steel Corp., the plaintiff, on behalf of allegedly 800 similarly situated workers, filed suit against U.S. Steel alleging violations of the FLSA, seeking backpay for time spent donning and doffing various pieces of protective gear.  The plaintiff sought backpay compensation despite the collective bargaining agreement in place specifically defining the time as noncompensable.  Because the act of donning or doffing protective equipment, or changing clothes, would otherwise be compensable under the FLSA, U.S. Steel's contention of noncompensability rested upon the validity of the provision in the collective bargaining agreement. The validity of the provision, in turn, rested upon the applicability of an exception to the FLSA contained in 29 U.S.C. § 203(o), which allows parties to decide, as part of a collective bargaining agreement, whether the time spent "changing clothes" is compensable, but not the time spent donning and doffing other equipment or non-clothes items.  

The Court held that the articles donned and doffed by the workers, despite being safety related equipment such as hardhats, work gloves, and a fire-retardant jacket, fell within the ordinary definition of "clothes" and within the § 203(o) exception.  The Court's definition of "clothes" -- derived from dictionaries in circulation at the time the exception was enacted -- "denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress."  Hence, the jacket, albeit fire-retardant, falls within this definition.  

Furthermore, the Court held that even though there were three pieces of equipment that may not fall within the definition of "clothes" (i.e. safety glasses, earplugs, and a respirator), the entire time would nevertheless be noncompensable.  The Court said Congress did not intend § 203(o) "to convert federal judges into time-study professionals."  Rather, "[t]he question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.' "  Therefore, if an employee devotes the vast majority of the time in question to putting on and off clothes as the Court defined that term, the entire period qualifies, and the time spent putting on and off other items of non-clothing need not be subtracted.  

The Sandifer decision applies a common-sense approach to the often litigated and complicated fact-finding analysis of what is properly defined as "clothes" under the law.  However, the knife cuts both ways; time spent donning and doffing predominately non-clothes items, even if coupled with putting on or off relatively minimal "clothes," would render the entire time compensable regardless of a collective bargaining provision to the contrary.  



Florida Employers May (Still) Terminate Their Employees for Insubordination


In a legal environment where employers often feel the deck is stacked against them, it is good to know that Florida courts will support employers who do not discriminate, when they need to terminate an insubordinate employee.  Such was the case in Jones v. Suburban Propane, Inc., 2014 WL 204424 (N.D. Fla. 2014), decided just this month, where the court granted summary judgment in favor of employer Suburban Propane, Inc., in a suit brought by a former delivery driver who was discharged for being "insubordinate to an extent that many and probably most employers would find grounds for termination."

In 2010, Jones and another employee filed charges of racial discrimination with the Florida Commission on Human Relations.  The charges were settled two months later.  Two years later, a Suburban Propane manager received a call from a person who identified himself as Jones' nephew, who claimed that Jones was "driving a company truck while intoxicated, selling drugs from the truck, and transporting a nonemployee in the truck."  The manager called Jones to discuss the allegations.  Over the course of several telephone calls, Jones told the manager to "stay out of [his] business" because "[it] was a family problem."  He also purportedly "cursed" at the manager.  The manager believed that Jones' speech sounded slurred and requested his location in order to send someone to pick up the truck. 

Despite several requests by his manager, Jones refused to provide the address where the truck was located and threatened to "call a wrecker to have the truck towed." The manager informed Jones that his job was in jeopardy if he did not reveal the location of the truck and also instructed him not to have the truck towed.  Jones refused and, ultimately, he had the truck towed to Suburban Propane's lot.  It was later determined that the truck was at Jones' home the entire time.

Several days after this incident, two Suburban Propane managers met with Jones and provided him with an opportunity to explain his actions.  Jones exhibited a poor attitude during the meeting and could offer "no reasonable explanation for refusing to tell [the manager] the truck's location or for calling a tow truck contrary to [the manager's] instruction."  As such, Jones was terminated based on his poor attitude and insubordination during both the June 23rd calls and during the June 26th meeting.  Jones filed suit claiming that his termination was a result of racial discrimination and/or in retaliation for previously filing a charge of discrimination.  Suburban Propane moved for summary judgment.

After considering Jones' discrimination claim and his explanation for not providing the location of the vehicle because "he could not remember his address because of stress and high blood pressure," the court granted summary judgment for Suburban Propane concluding that the Jones was unable to show that Suburban Propane's proffered reason for his termination—insubordination—was pretext for discrimination.  The court opined:  "It is undisputed that Jones engaged in conduct that a reasonable employer could deem insubordinate.  Indeed, it is difficult to imagine any employer not deeming Jones's conduct insubordinate."  The court also emphasized that "…the critical issue is not whether Jones had an excuse for his insubordinate conduct, nor even whether he was in fact insubordinate (as he clearly was). The critical issue is whether [his manager] believed Jones was insubordinate and fired him for that reason."

The court also granted summary judgment in favor of Suburban Propane on Jones' retaliation claim, holding that Jones had not established a prima facie case of retaliation.  "The gap between [the filing of the charge of discrimination] and the termination was more than two years. And the record includes no other evidence suggesting any connection between the two events[,]" the court wrote.

Jones v. Suburban Propane is a good example of when the system gets it right, for the right reasons.  In the absence of an agreement to the contrary, Florida employers may terminate employees for any legitimate non-discriminatory reason, including insubordination, which is judged based on the employer's subjective belief.  However, as was the case in Jones, where the employee previously filed a charge of discrimination or engaged in protected activity, it is especially important for employers to consult with experienced labor and employment counsel to minimize the possibility of a lawsuit—even if it is one in which they will ultimately prevail.


Granting A Requested Job Transfer Can Be Considered An Adverse Employment Action


An employee who requested and was granted a lateral job transfer, and later sued for discrimination, was not precluded from claiming that the transfer was an "adverse employment action," according to a recent decision by the Sixth Circuit Court of Appeals, Deleon, et al. v. Kalamazoo County Road Comm'n, et al., (6th Cir., January 14, 2014).

Although the ruling appears on the surface to put employers in an untenable  position, consideration of the underlying facts is enlightening.  Important to the court's decision was the fact that even though the plaintiff applied and interviewed for the position, he was initially rejected, and the position was filled with another candidate, who left shortly thereafter.  Nine months later, the plaintiff was transferred into the position, without reapplying.  According to the employer's deposition testimony, the plaintiff did not have the option to stay in his former position at the time of his transfer.  The employer stated that the transfer was part of a larger "reorganization."

The conditions of the new position were somewhat hazardous including working in a garage with constant exposure to diesel fumes.  Plaintiff alleged that he developed bronchitis, a cough and sinus headaches from breathing the black soot every day.  

The employer defended by arguing that in accordance with settled case law, because the plaintiff's job reassignment resulted in no changes in salary, benefits, job title or work hours, it should not constitute an adverse employment action.  In fact, the plaintiff stated that he thought the job to which he was transferred had better career opportunities.  

However, the Supreme Court has indicated that whether a particular reassignment is materially adverse depends upon the circumstances of the particular case and should be judged from the perspective of a reasonable person in the plaintiff's position.  White v. Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 71 (2006).  Accordingly, the court focused on whether the conditions of the transfer would have been objectively intolerable to a reasonable person.  In doing so, the Sixth Circuit reversed the lower court's entry of summary judgment for the employer and remanded for further proceedings.  

Judge Sutton wrote a dissenting opinion explaining that, in his view, when an employee applies for and obtains a job transfer, his employer cannot be said to have subjected him to an adverse employment action.  But the majority opinion cited several other decisions in which courts have held that the fact that the employee requested the transfer does not categorically bar a finding of an adverse employment action.  Thus, it is important to consider the conditions of a transfer, even if lateral, before transferring an employee, or allowing an employee to transfer, to a new position.


Yes, Employers Can Win Summary Judgment in State Court


Given the opportunity, most defense lawyers will remove an employment discrimination case filed in state court to federal court because federal judges are more inclined to grant summary judgment, i.e. a judgment in favor of one party before the case goes to trial.  But as a recent case from Florida's Third District Court of Appeal illustrates, an employer can win summary judgment on a discrimination claim in state court given the right set of facts.

In Johnson v. Great Expressions Dental Centers of Florida, P.A., Case No. 3D13-794 (Fla. 3d DCA, January 8, 2014), the plaintiff, Cynethia Johnson, had been a patient coordinator for the defendant’s dental practice.  From the start of her employment, Johnson had a poor relationship with the primary dentist, Dr. Jessica Papir, and also had various disputes with co-workers and with Great Expressions’ patients.  After being issued two formal warnings, she was terminated in December 2009 when she showed up to work late, inappropriately dressed, and with a bad attitude.

Johnson sued under the Florida Civil Rights Act claiming racial discrimination. She claimed that her supervisor refused to transfer her to another Great Expressions location after she continued to have problems with Dr. Papir.  She also claimed that three of four black employees in the office had either quit or were fired in 2009, and that the fourth quit in 2011.  Johnson asserted that these allegations were circumstantial evidence from which a jury could infer that she was fired because of her race.  The trial court disagreed and granted summary judgment to the employer on the grounds that Johnson had failed to meet an essential element of her prima facie case – namely, that the employer treated similarly situated, non-black employees more favorably. 

The Third DCA affirmed the trial court's decision.  The court noted that it was undisputed that Johnson had poor relations with patients and co-workers and that she had reported to work on the day of her termination with a bad attitude.  Johnson could not point to any non-black co-worker who behaved similarly and was not terminated.  Johnson argued on appeal that it was not necessary for her to produce evidence of a non-black comparator – that it was sufficient if she presented a "convincing mosaic" of circumstantial evidence that Great Expressions terminated her employment based on her race.  But the court noted that no Florida court had adopted the "convincing mosaic" standard.  And, even assuming such a standard applied, Johnson could not meet it because there was no convincing evidence of racial discrimination.  Great Expressions had declined to transfer Johnson to the other office because that position required a Spanish speaker, and Johnson does not speak Spanish.  And the turnover in Johnson’s position was quite high, so the fact that other black employees had been terminated or resigned was not significant.

Florida state court judges are generally reluctant to grant summary judgment.  But employers should take heart from the Johnson case.  It shows that under the right set of facts, an employer can defeat a discrimination claim in state court without bearing the risk and expense of a trial.


Job Descriptions and Performance Reviews – Do They Help or Hurt Defend Against a Claim Under The American With Disabilities Act?


It depends.  When an employee files a claim under the American with Disabilities Act ("ADA"), two of the key issues for determination are whether the employee is "qualified" for the position and whether the employee can perform the "essential functions" of the job with or without a reasonable accommodation.   In determining these issues, courts focus on employers' job descriptions and performance reviews.

Accordingly, job descriptions that identify the "essential functions" of the position may be helpful to prove that a person is not "qualified" under the ADA.  For example, in Galloway v. Aletheia House, 509 Fed. Appx. 912, 2013 BL 41809 (11th Cir. 2013), the court reviewed the employer's job description for the case manager position at issue and found that because driving was essential for the position, the applicant, who was blind, was not qualified.  In Wehrley v. American Family Mutual Insurance Company, 2013 WL 1092856 (10th Cir. 2013), the court found that the written job description, stating that the job required the ability to work in high, precarious places between 1 and 33% of the time, and to stoop, kneel, crouch or crawl between 1 and 33% of the time, and further stating that "The information in this job description is intended to describe the essential job functions" was evidence that climbing ladders and working at exposed heights were essential functions of the job.  The court in Richardson v. Friendly Ice Cream Corp., 594 F.3d 69 (1st Cir. 2010) also relied on the employer's job description to conclude that the plaintiff's restaurant job as an assistant manager had a "substantial physical component" that was essential to the position.

Contrarily, job descriptions that are vague or general are not likely to be interpreted to create an "essential function".  This was the case in Szarawara v. County of Montgomery, No. 12-5714 (E.D. Penn. June 27, 2013) where the court rejected the employer's argument that the language in the job description, requiring employees to be able to work "various shifts", "rotating schedules", weekends and holidays, made working the night shift an essential function of the job.   

A performance review after the disability occurs may be evidence as to whether or not the person is "qualified" under the ADA.   Poor performance ratings may be helpful in showing the employee was not qualified, as was the case in Jones v. Walgreen Co., 679 F.3d 9, 26 AD Cases 261 (1st Cir. 2012) where the employee received bad reviews.  Contrarily, satisfactory to exceptional ratings may be evidence that the employee is "qualified".  In Colan-Fontanez v. Municipality of San Juan, 660 F.3d 17, 25 AD Cases 423, 2011 BL 262540 (1st Cir. 2011), the employee received good to superior ratings, which the court found to be strong evidence of the employee's qualifications and skills.  In EEOC v. Chevron Phillips Chemical Co., 570 F.3d 606, 21 AD Cases 1729 (5th Cir. 2009), the court found that the employee was "qualified" because the employee received satisfactory job reviews.     

These cases highlight the importance of assuring that job descriptions spell out the "essential functions" with enough detail to support the argument that the functions are truly "essential" to the job, and that employee evaluations should include sections directly related to the performance of those "essential functions" and should accurately state the employees' job performance.


Automatic Gratuities Are Now Wages For FICA Tax Purposes


Restaurateurs and wait staff beware: beginning this month, the IRS will classify automatic gratuities not as "tips," but as service charges reportable as regular wages which are subject to payroll tax withholdings.

Rev. Rul. 2012-18 provides that automatic gratuities – like that automatic 18 percent added to the bill for a party of six or more -- are service charges, rather than tips, for tax purposes. To the extent any portion of a "service charge" is distributed to an employee, it is wages for FICA tax purposes.  Thus automatic gratuities are not included in the wait staff's tip reports, but are to be treated by the employer in the same way as the wait staff’s hourly wages.

The original rule technically went into effect in June 2012, but the IRS pushed back enforcement until January 2014 to allow restaurants time to comply. So, starting now, those automatic gratuities for large parties are to be treated as service charges, not tips, for FICA purposes.

The fact that the restaurant and wait staff call such payments "tips" is not determinative. According to the IRS, it's not a "tip" unless it satisfies four criteria:

  1. The payment must be made free from compulsion.
  2. The customer must have the unrestricted right to determine the amount.
  3. The payment should not be the subject of negotiation or dictated by the employer policy.
  4. Generally, the customer has the right to determine who receives the payment.

These changes will obviously result in more paperwork and added costs for restaurants, and, as a result, many restaurants are changing policies.  Some restaurants have resorted to simply providing the customer the calculation of the tip at 15, 18 or 20 percent, regardless of the size of the party. That shift may be an unintended positive consequence of this ruling for those who would prefer to cruise through life without doing math at all.



Florida's Minimum Wage is Now $7.93


Florida's minimum wage rate increased to $7.93 effective January 1, 2014.  As we reported in November, Florida's minimum wage law requires the Florida Department of Economic Opportunity to recalculate Florida's minimum wage annually based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all employees who are covered by the federal Fair Labor Standards Act.

This hourly increase also impacts the wages that must be paid to tipped employees working in Florida.  While employers of tipped employees may take a credit of up to $3.02 per hour, tipped employees must also receive a direct hourly wage.  Effective January 1, 2014, this direct hourly wage must be at least $4.91 – calculated as Florida's minimum wage ($7.93) minus the permissible tip credit ($3.02).



Your Digital Workplace: Pitfalls and Remedies for Employees' Internet Use


Computers are a doubled-edged sword—a vital convenience for everyone while simultaneously a potential source of liability if used improperly by employees. Employers' liability has expanded to the point where an employer may be liable to a third party for harm caused by an employee's misuse of computer systems at work.  For example, an employer may be held liable to a third party for failing to investigate an employee whom it suspects of using company computer systems to view child pornography.  See Doe v. XYC Corp., 887 A.2d 1156 (2005).  But, employers are not left helpless—every business should create and implement clear policies on employees' use of computer equipment in the workplace.  Employers must also be cognizant of how employees are using their computer systems and create a system by which computer use is monitored.  At the same time, employees should be informed of such monitoring and that they will have little or no expectation of privacy when using company computers for personal matters. 

In Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. 2010), the court addressed the parameters of the attorney-client privilege for an employee who was using the employer's computer system to communicate with her attorney through her personal Yahoo!© email account.  The court found that because the employee had an expectation of privacy in her Yahoo!© account, she was entitled to the attorney-client privilege, despite her using the employer-monitored system.  Here, a policy (and an employee acknowledgement) that notified the employee that her computer communications were not private may have helped the employer defend against the claim of privilege.

What about the use of Facebook®, Twitter©, and Instagram© at work? Employees’ use of social media raises legal issues about the outer limits of employer supervision.  Some employers request login information for personal social media accounts as a condition of either obtaining or maintaining employment.  But, more than a dozen states have enacted statutes regarding "social media privacy" that prohibit employers from requesting access to personal social media accounts as a condition of employment.  Currently, S.B. 198 is pending before the Florida Senate, and, if the bill is made law, employers will be liable to employees for conditioning employment upon providing access to personal social media accounts.  In addition, the federal Stored Communications Act, 18 U.S.C. § 2701 et. seq., could become a pitfall for employers that seek or force access to employees' social media accounts.  Any access to such an account must be authorized or must be obtained by a user for whom the information on the social media account was intended, such as a coworker who is a Facebook friend.  See Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 2013 WL 4436539 (D.N.J. Aug. 20, 2013).  In light of these statutes, employers should avoid seeking to gain too much control over employees' personal social media accounts.

So what should an employer do to prevent employees' misuse of company computer systems and equipment? Some employers have managed the risks associated with company computer systems by instituting internet restrictions on the company computer system that block any attempt to access social media sites and other potentially hazardous websites.  These "blocks" and attendant computer system policies explain that the employee's attempt to access the site will be logged and further reinforce that employees have little or no expectation of privacy when using company computer systems.  In addition, while employers may be restricted in monitoring the content of employees' social media activity, employers are not restricted from creating strong policies regarding employee misuse.  

In sum, supervision, monitoring, and strong policies should make internet use in the workplace more efficient and effective for both employers and employees.


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