Time to Adjust Your Payroll for Tipped Employees

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Recently, the Miami Herald wrote about a case against the Orlando location of Giordano’s Pizza that was brought on by the U.S. Department of Labor. The restaurant’s owners were accused of not paying their employees properly and was ordered to pay each worker $5,000, for a total fine of $125,625.

For a restaurant or any business, that is a significant fine that could result in the restaurant going out of business.

In that case, the Department of Labor accused the company of not paying its servers time and a half for overtime hours and of paying its servers exclusively in cash.

Both of these should be fairly standard for any businesses using tipped employees to do so, but on September 30, 2023, the numbers associated with tips and pay changed. It is important for you to review your payroll standards and ensure your business is complying.

The attorneys at The Orlando Law Group can help review your situation and ensure your business is following the often-confusing issues related to tipped employees.

How Tips Work

Anyone who dines at a restaurant understands the tips system for compensating restaurant employees. You pay more for your meal based on the quality of service you receive. In addition, it is assumed the cost of the meal is lower because the restaurant has lower labor costs.

But that 20 percent added onto the bill does not go to the server 100 percent. The server gives some to the bussers and the hostess. The bartender may get a portion and the kitchen staff may get paid out as well.

It can be confusing who is getting how much money and, often, nearly impossible to track. That is why the rules of tipping are set up to be based on a “tip credit” established by each state government.

Yes, there is a federal standard, but in many cases, states have higher minimum wages, which always supersede the federal standards and that is the case in Florida.

It is required that some of a server’s wages are not paid through tips exclusively. In Giordano’s case, the restaurant owners were found to have not paid 24 servers any pay except for their tips.

That is not allowed.

What is Florida’s tip credit?

This is where it gets a bit tricky. A few years ago, Florida voters passed a ballot initiative raising Florida’s minimum wage to $15 per hour. Understanding this would be hard on businesses, the new law allowed a gradual increase in the minimum wage until 2026.

The first increase was in 2021, and every year after, the minimum wage increases by $1 per hour. On September 30, 2023, the minimum wage in Florida became $12 per hour.

Of course, that is not the amount that employers are required to pay tipped workers. Florida law allows employers to take a “tip credit” of $3.02 per hour for any employee who receives tips.

That means restaurants and other tip-based industries must pay a minimum wage of $8.98 per hour, a dollar per hour higher than it was in September. And the next year it goes up another dollar, eventually resulting in a minimum wage for tipped employees of nearly $12 per hour!

What are the penalties for non-compliance?

Increasing expenses are always tough for any business, especially restaurants where the margins are always thin and food costs are extremely volatile. Just that one extra dollar per hour could be a tremendous burden for any business.

The alternative will be worse and you will almost always get caught.

Anyone who has worked in the restaurant industry understands employment is often very temporary and there are many opportunities for disgruntled former employees to cheerfully report any practice that does not meet the law.

Once the Department of Labor becomes involved you will have extra legal and accounting fees to prove your case or negotiate a settlement. Almost any fines imposed will include interest and penalties. Instead of paying an extra dollar an hour, you could be paying hundreds of thousands of dollars.

In Giordano’s case, there were only 24 employees at one location who were impacted and the company still had a six-figure fine. How many employees do you have? Is that a fine you could pay easily?

There is also very little defense. For instance, the Department of Labor said in the article Giordano’s blamed a third-party payroll company for a mistake. Unfortunately for the restaurant owner, the responsibility lies with them.

The attorneys at The Orlando Law Group can help you with wage cases like this, as our attorneys represent clients in the restaurant industry and other businesses in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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Alimony-Tax-Deduction

New Divorce Laws in Florida

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At The Orlando Law Group, we certainly understand the stress, confusion and emotions that come with a divorce, particularly one that has alimony payments and child custody arrangements.

Unfortunately, many of the laws guiding Florida courts for decades have been upended this month. For more than a decade, there has been an effort to substantially overhaul these laws. Both Governors Ron DeSantis and Rick Scott have vetoed similar legislation in the past.

This year, however, the laws passed and this month, a slew of new laws took effect in Florida dealing with alimony and child custody.

While not retroactive, any new petitions for divorce will have these new laws apply.

If you are already divorced, these new laws could affect you too as there are new standards to petition the courts for a modification of your divorce agreement.

The big one that could see substantial changes in your agreement is the end of permanent alimony for any new divorces. For those receiving or paying permanent alimony, that could change in the future with new restrictions on retirement, outside support and other aspects.

If you are filing for divorce soon, alimony will be based on the length of your marriage and other factors, but it will now be required to end at some point.

As to custody arrangements, the court now takes the stance that co-parenting – a 50/50 split – is best for the child unless either side proves that not to be the case.

Keep in mind as with any new law, there will be court challenges and other actions to fix any issues with the law, so this could change.

But if you have a divorce agreement from a Florida court, it is imperative you reach out to The Orlando Law Group soon to review and see what your options are and how this new law might affect you.

The Orlando Law Group can help you with any family law issue that might arise, including ones dealing with alimony and child custody. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is alimony?

In any divorce proceeding, the courts look at how to ensure individuals are not immediately put into financial stress through a divorce. This can come in a variety of forms, from a lump sum payment, a “bridge-the-gap,” rehabilitative and durational.

In each of those cases, there is a wide range of factors that determine the amount and the length of the alimony payments. Usually, without an agreement, the courts would set the length and cost of alimony, including sometimes making it permanent – only ending with death or remarriage.

No more permanent alimony

As of July 1, the new law completely eliminates all permanent alimony, now requiring an end date to the payments.

According to the previous statutes, “Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage.”

It was meant for couples separating from long marriages in most cases and it was viewed by statute as the last choice.

The alimony ended when the payee remarried or died, or if there was evidence of new outside financial support – generally living with someone – with a modification filing.

All of that is gone now. In Florida, there are now limits as to how long alimony can last. If you were married for three to 10 years, alimony can not exceed 50 percent of the length of the marriage; for 10-20 years, 60 percent of the length of the marriage; and over 20 years, 75 percent of the length of a marriage.

In addition, there is now a cap on the amount of alimony in durational alimony. It cannot “exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less.”

Wait, there’s more…

One of the things that may have huge implications was the change in the definition of the length of a marriage. That can have large ramifications on your settlement.

In the past, a short-term marriage was defined as up to seven years. It is now 10 years. A moderate-term marriage was from seven to 17 years. It is now 11-20 years. And a long-term marriage is now over 20 years!

This could result in a significant reduction in your anticipated alimony payments.

If you already have permanent alimony, it is also easier to get a modification based on the circumstances of the payee. Before July 1, you could ask for a modification only if your ex-spouse was living with another person. (It automatically ended with remarriage). Now, alimony could end based on another person – other than family or a spouse – supporting your ex for a year or more.

Finally, Florida statute now clearly states how an alimony agreement can be altered in the case of the payor retiring. While this has been somewhat of a precedent based on earlier court cases with modifications, the definition of retirement is clearly stated in the statute and if those definitions are met, alimony ends or is reduced.

Child custody changed too!

A separate piece of legislation may influence divorce agreements with children.

In the past, each case of custody was looked at individually, meaning there was no basis for who had prime custody at the beginning of the case.

Now, the court starts all cases that involved children with the presumption the best interest of the child is to have 50/50 shared custody of minor children. If that is not the case, you must prove “preponderance of the evidence” that a different parenting situation is best for the child.

It is still to be determined how this will be utilized and change how child custody is currently determined.

That is why we believe it is essential to reach out to The Orlando Law Group if you have an existing divorce settlement or are thinking about divorce to ensure you are protected under these new statutes.

The attorneys at The Orlando Law Group represent clients in family law issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Independent Contractor Rules Change Again

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As business owners at The Orlando Law Group, we certainly use independent contractors as do many businesses throughout Florida. After all, independent contractors can often provide significant experience in a given field for a fraction of the cost of an employee.

Plus, many of the issues and costs surrounding employees – benefits, overtime, scheduling, time-off and more – are eliminated by working with independent contractors when possible.

Over the past few years, the “gig economy” has had courts, the IRS and the National Labor Relations Board looking closer at how workers should be categorized. And during the Trump administration in 2019, there was an expansion on who could be a contractor.

This June, however, the National Labor Relations Board issued a new ruling to basically reverse that decision. The issue comes down to entrepreneurial opportunity and if the contractor is working for multiple clients.

At The Orlando Law Group, we anticipate these types of criteria will fluctuate for a while as regulators work out how the gig economy will work.

The Orlando Law Group can help your business with any legal issue that might arise, including ones dealing with independent contractors. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is an Independent Contractor?

Over the years, the independent contractor has been an important part of many business plans. They have been called consultants, 1099s, contractors and more.

But businesses that use them cannot simply substitute an employee for an independent contractor. There are specific rules, but for the most part, it comes down to control. Unlike an employee, a business does not provide any tools to the independent contractor – and cannot control how the contracted work is performed.

For instance, if you hire independent contractors as salespeople, you cannot provide them with sales leads. You cannot say they have to work every Friday or set their hours in any shape or form. You cannot require them to go to the office. You cannot provide them with a laptop or a computer. You shouldn’t even give them a business card with the company’s name on it.

Benefits are off the table. You are not responsible for overtime and certainly not responsible for taxes.

And you most certainly cannot prevent them from contracting to sell for another company at the same time, although you could make industry exclusivity a part of the contract.

The same applies if you are using a delivery driver as an independent contractor, or hiring a beautician, or a pilot, or myriad of other jobs.

Here’s how the IRS determines independent contractors, using three “Common Law Rules.”

  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer?
  3. Type of Relationship: Are there written contracts or employee type benefits? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

These Common Law Rules have governed the independent contractor relationship for quite a while.

Entrepreneurial opportunity

So, what changed?

While the Common Law Rules have been part of the discussion on independent contractors for decades, what changed repeatedly in the last decade is how “entrepreneurial opportunity” is defined.

At the center of that term is how the independent contractor can grow their own business with other clients and other contracts.

In 2014, the NLRB said entrepreneurial opportunity was based on real entrepreneurial opportunity –the independent contractor acquired multiple clients. This ruling limited the number of independent contractors and classified many individuals as employees.

In 2019, that determination was expanded. It wasn’t specific to whether the independent contractor had acquired other clients, it became hypothetical. Could the independent contractor grow their business with other clients, even if they hadn’t? And that became the overriding element of classification.

Of course, applying potential instead of actual actions expanded who could be an independent contractor and the newest ruling from the NLRB returns to the 2014 meaning.

What does this mean for businesses? 

The classification of workers as employees or independent contractors is critically important. If you misclassify employees as independent contractors, you could be liable for back taxes and pay, and depending on the extent and negligence on your part, there could be major fines.

These fines can be significant. For instance, Nike is facing a $500 million fine for misclassifying employees. A small construction staffing company with 200 employees in Virginia has a $270,000 fine to pay for misclassifying employees.

At this point, it is important to be as conservative as possible with independent contractors.

We also believe to protect yourself; you should have an attorney at The Orlando Law Group review your independent contractor agreements. We understand your needs as a business owner and want to make sure your business thrives.

The attorneys at The Orlando Law Group represent clients in business law, labor issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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The At-Will Doctrine: What Does It Mean to Be an At-Will Employee or Employer?

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The at-will Doctrine is a longstanding principle in the American labor market which, in basic form, states that an employer can decide “at-will” to terminate an employee for any reason and at any time, without the need for providing just cause for the termination.

There is currently no statute written by elected lawmakers establishing the at-will doctrine as legal fact; rather it is based in the common law, which is the body of law based on the judicial decisions of legal precedent established by the courts. The at-will doctrine came into precedence in the United States during the late 19th and early 20th centuries, when the economic policy termed by the French phrase as “laissez-faire” or “hands-off,” meaning minimal interference by the government in the economic affairs of the state and individuals, became popular in rapidly industrializing American business and political models. Every state in the United States, with the exception of Montana, is an at-will state, and the majority of employees (with some exceptions such as those employed by contract or government employees) are at-will employees.

While this doctrine is typically cited as a net negative for the employee side of the labor market, it does go both ways-employees, in turn are also given the right to terminate their own employment “at-will,” at any time, without giving a reason, and without fear of legal retaliation by an employer. Additionally, because employers are aware that you can leave at any time, there is theoretically an inherent incentive for them to treat you well and provide opportunities for growth. Compare an at-will employee who can quit at any time to an employee contracted to work for two years-knowing that the contract employee will only stay to work for two years and then leave, there is little incentive for the employer to offer opportunities to advance within the workplace. Furthermore, as not all employees are guaranteed to stay at their place of work permanently, employees can negotiate preferable terms of employment, such as higher pay and benefits, especially during times when the market favors employees (as it does currently).

On the other hand, employees arguably have more to lose under the at-will doctrine than employers do, as their employment can be terminated at any time while an employer can simply hire a new employee. As many Americans are unfortunately aware, it can be far more difficult to get a new job than it is to hire a new employee, especially during an economic recession or difficult time. Losing one’s job means losing one’s ability to provide for themselves and their loved ones, and the idea that one’s job is never completely secure is a frightening and stressful prospect.

It is important you know your rights as an employee, especially in relation to your job security. When you start a new job, you should be given some sort of written information as a new hire detailing the policies and procedures relating to the terms and conditions of your employment, typically in the form of an employee handbook, contract, or manual. Make sure to read the information provided to you very carefully and ask questions if needed. You should know based on this information whether you are considering an at-will employee or otherwise. A good employer should not be opposed to their employees’ asking questions in good faith about their employee rights-and if an employer is strongly opposed to answering any kind of concern raised about their employment, it could be an indication that they are not a trustworthy employer with their employee’s rights in mind.

Here is a quick tip to ensuring that you are as prepared as you can be for any changes in your employment-always assume you are an at-will employee unless you know with absolute certainty that you are not (such as if you are an employee contracted to work for a company for two years based on written contract). For instance, we could examine the facts of the 1983 case decided by the District Court of Appeal of Florida in the Second District, Muller v. Stromberg Carlson Corp., 427 So. 2d 266 (Fla. Dist. Ct. App. 1983). The employee, Muller argued that his previous employer, Stromberg Carlson Corporation had breached employment contract by, among other items, terminating his employment without cause in 1981. Muller alleged that he was told by Stromberg that he would become a “permanent” employee after a six-month probationary period and would remain an employee as long as his performance reviews were satisfactory, which Muller’s apparently were. However, the Court ruled against Muller in their opinion, stating that “We see no justification to depart from long established principles that an employment contract requires definiteness and certainty in its terms.” Muller’s employment arrangement included no specific terms relating to tenure or job security; thus as he was not employed for a definite, certain term, he was considered an at-will employee and thus could not argue that he was entitled to legal or financial compensation based on breach of contract by the employer. Unless you are completely sure based on written agreement that you are not an at-will employee, know that you are most likely an at-will employee and can thus be terminated at any time without cause.

Your status as an at-will employee does not mean that you are completely unable to explore the chance for legal remedies if you feel you have been wrongfully terminated. There are numerous exceptions to the at-will doctrine for which you may be able to seek legal resolution for wrongful termination. These may include discrimination by an employer under Title VII of the Civil Rights Act of 1964, violation of public interest (such as one being fired for refusing to perform an illegal act), termination after taking leave under the Family Medical Leave Act, for active military duty or for jury duty, and termination in retaliation against you (such as after reporting sexual harassment in the workplace). If you feel that you have been wrongfully terminated and are seeking possible legal recourse, we would be happy to consult with you to discuss your options. Please contact our office via phone at 407-512-4394 to schedule a consultation with an attorney.

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covid-19

CDC Guidelines for Businesses Grappling with COVID-19

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With the world of change that we have been afforded, it is very easy to feel inundated with information regarding COVID-19. Businesses are clamoring for data that is not only useful, but also valid and from a source they can trust. The CDC has released a document detailing information that will help you understand practical protocols when someone has tested positive or could be a potential carrier of the Coronavirus, and we have broken that document down for you.

We at The Orlando Law Group understand that each business is unique, and the handling of an office may differ than the response of a restaurant. A plan that involves CDC Guidelines is a perfect defensive strategy in terms of keeping your employees confident and safe, your customers comfortable with how you are reacting, and your liability very low. You may never be sued over someone catching COVID-19 at your establishment, but not following proper guidelines could land you in a world of social media slandering that you could have preemptively avoided if you had utilized these methods of protocol.

What qualifies as exposed to the virus?

We have all seen the social media posts or heard whispers from our “In the know” neighbors saying, “Did you know someone tested positive at that location.” CDC guidelines state that persons deemed “exposed” are those who have been within 6 feet of a Positive Covid-19 person for more than 15 minutes.

What happens if an employee has been exposed to COVID-19?

If an employee has been in direct contact with a Positive COVID-19 employee, but is asymptomatic and has not been tested, they will need to quarantine from the date of exposure for 10 days. If symptoms appear within 10 days of isolation, a symptom-based strategy will implore an employee to not report back to work unless they are asymptomatic and without medication for symptoms.

What if an employee tests positive?

If an employee does test positive, then that employee will need to quarantine for ten days from the date of their positive test. After this, they will need to show that they have recovered fully from the effects of the virus. The CDC recommends that businesses take action if an employee has tested positive. Shutting down indefinitely is the last option you want to take, but there are many precautionary steps you can achieve that will put your customers at ease. If it has been less than 7 days since the sick employee went home, it is a good idea to close off any areas or stations where that employee might have spent a prolonged period of time working at. That employee should not return to work until they are in full recovery.

What defines recovery from the coronavirus?

In order to show recovery from the coronavirus, the employee will need to retest two more times, greater than or equal to 24 hours apart, in order to show that they have received two tests that were negative before returning to work. At least three days need to have passed since recovery, which is defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms. One important aspect to remember is that, if an employee has visited a physician for care, the physician’s requirements supersedes the CDC guidelines.

What actions should you take to disinfect the store?

The CDC recommends waiting 24 hours before cleaning and disinfecting. This will minimize other employees being exposed to respiratory droplets. It is the best practice to open doors to the outside in order to allow as much air flow as possible during this 24-hour waiting period. If 7 days have passed since the employee that is sick has worked there, additional cleaning is not necessary outside of the usual routine process of cleaning and disinfecting of all high-touch surfaces in the facility.

What is the proper way for our business to fully disinfect?

 It is very important to clean surfaces with soap and water before disinfecting them. When disinfecting surfaces, the CDC recommends using products that meet the EPA criteria for use against SARS-Cov-2, the virus that causes COVID-19. Make sure to wear gloves and gowns that will protect you while you use these chemicals to clean. If you want to make the cleaning process more thorough, the CDC recommends hiring a cleaning company. Reach out to us on our Facebook, and we can recommend the one that we used.

Requiring current employees to get tested for COVID-19

Subject to the rules of the federal Americans with Disabilities Act (ADA) and similar state laws, requiring someone to get tested for the coronavirus is not in accordance with the law unless a manager must do so to preserve the safety of the workplace as well as the ability for that employee to perform their job. The EEOC has recently detailed that those with the virus, “will pose a direct threat of others.” When deciding to test, the CDC recommends using a resource that is accurate and reliable by checking the U.S. Food and Drug Administration and other public health authority websites for the latest information, including their own.

Should we close the Business?

The CDC has made it up to the store’s discretion as to whether they should close. We are certain that businesses will work hard to maintain safety protocols and keep their facilities clean. It is very important to remember that, beyond anything else, you are not alone in this. With change always comes discomfort, and it is going to take a long time to adjust to the differences of these new conditions. When the world changes, we must change with it.

The Orlando law Group is here for you. We take each conversation, each client, and each situation as they are presented to us. If you are looking for updates on COVID-19, make sure to check out our Coronavirus Legal Update Panel. We know that no two circumstances are exactly alike, and there may still be lingering questions you want answered. We will figure this out together one day at a time, doing the best we can for those we care about.

Stay focused, stay safe, and if you ever have questions, The Orlando Law Group is here to help. Never hesitate to reach out to us.

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paid leave

Navigating the Gray Areas of Paid Leave: What You Need to Know

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One of the goals of the Families First Coronavirus Response Act is to help assist families who are having to alter their normal ways of living due to canceled plans. One of the big areas to cover is paid leave, and what situations can qualify for effective paid time off. 

  1. Summer Camps Cancelling their Plans

If the parents were planning to send their child to summer camp, and that camp canceled due to COVID-19 complications, how can the parent take care of their child? The U.S. Department of Labor said Friday that workers could indeed take Federal Coronavirus Leave, up to ten weeks off at partial pay. Wage and Hour Division Head, Cheryl Stanton, mentioned this in a letter discussing possible employer violations. A complicated matter on both sides, there will most likely be parties trying to take advantage during this time, and clarity will be a powerful factor in determining if the worker does qualify. In this article, we discuss the details that go into qualifying for paid leave.  

  1. Setting a Clear Stage of Planning 

One of the biggest ways to get this right is by showing true proof that, if the current situation had been normal, your child would be enrolled and attending a summer camp. With the Families First Coronavirus Response Act, the first Federal Mandate was established, stating that employers with fewer than 500 employees must give workers short-term paid sick time for reasons associated with COVID-19, as well as long-term paid leave in order to care for children whose schools or childcare facilities are closed. The ruling took place on April 1st and will expire at the end of the year. 

  1. Getting the Exact Numbers Right

According to the FFCRA, if an employer has 500 or fewer workers, they must provide them with up to two weeks of sick leave at full pay, up to $511-per-day cap, if they are directly affected by COVID-19, and at partial pay, up to $200 a day, to care for affected family members. According to the law, there are six qualifying reasons for leave. The employee may qualify for sick leave if the employee is

  1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. Has been advised by a health care provider to self-quarantine related to COVID-19
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis
  4. Is caring for an individual subject to an order described in (a) or self-quarantine as described in (b)
  5. Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19
  6. Is experiencing any other similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. 

As the level of cases fluctuates, these rules are having to be executed to give direction to a nuanced situation. The importance is being placed upon clarifications, and many individuals are still not certain about what rights to utilize to take time away from their job and care for loved ones.  

  1. Adding Clarity to the Situation

One of the important clarifications made was that the FFCRA’s 10-day emergency paid leave can be taken on top of any existing paid leave that an employer already provides. An area where they have expanded the law is the age of the child that is being cared for by the parent. Although the statute says that workers are eligible if they have to be home to care for a child who is under 18, the Department of Labor clarified and stated that the law will also cover children who are over 18 but have a physical or mental disability that requires a kind of care that is made unavailable because of the recent COVID-19 related shutdowns. 

These alterations are in accordance with being able to successfully carry out the law. The law does state that the individual whom the worker is taking care of must be a family member, someone living in the same household, or someone with a quality of personal relationship where there would be an expectation of care from the employee. 

As you can see by the detailed, specific language utilized, the propensity for someone to game the system could be high, and that is why having all of the facts aligned in your favor will be so very important. Establishing the concrete details that solidify the individual as having a personal relationship and needing your care will be vital to receiving your payment. 

  1. Does the child have to be fully enrolled in the camp? 

Not necessarily. Although it is encouraged to not rely on any grey areas, it is potentially acceptable if your child is on the waiting list to get into a camp. However, it is very important to note that simply having the desire to send them to camp will not suffice. There needs to be a plan, and evidence that the plan was to be carried out until mitigating circumstances prohibited the camp from occurring. 

Another option the law allows for is up to 10 weeks off at partial pay, up to $200 per day, to care for children whose schools or childcare centers have closed due to COVID-19. For the employers that are covered under the law, they are encouraged to seek reimbursement of the qualifying leave through tax credits. 

  1. What about companies with 50 or fewer employees? 

For those companies that have 50 or fewer employees, they may be exempt in terms of having to provide leave. This is stipulated upon how essential the worker being present is in terms of upholding vital business operations. 

As you can see, and as there usually is with new, unprecedented legislation, there are many angles and grey areas to consider. The catch 22 of having businesses struggle alongside their coworkers could potentially place them at odds with one another, and this is something that we want you to be aware of and ready for. 

Having your information in alignment and accordance with the latest laws will be to your benefit. As always, The Orlando Law Group is here to help you through your specific situation. Although similarities exist, your world is your own and will require a specific interpretation of how the law applies. Our attorneys treat you as an individual, and we will not stop fighting for your rights to the time and money you deserve. 

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disaster-loan

Don’t Spend That SBA $10,000 Disaster Loan Just Yet

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What is the SBA $10,000 DIsaster Loan?

The U.S. Small Business Administration (SBA) has responded to the Coronavirus (COVID-19) pandemic by offering small business owners in all U.S. states, Washington D.C., and U.S. territories and Economic Injury Disaster Loans. 

An important aspect of the loan has received an enormous amount of attention. That component is an advance on the loan of “up to $10,000.” The advance is supposed to be available following a successful application for the SBA loan.

The advance is intended to provide financial relief to businesses. Especially to those that are experiencing lost revenue during the Coronavirus pandemic.

No need to be a master of the English language to note the words “up to” in that statement. That escape hatch phrase goes a long way in allowing the SBA to do some pretty crafty things with the loan and the advance. As you’ll see later in this article, the SBA’s recent clarifications of the wording of the advance heavily leverage the phrase “up to.”

The reason this part of the Disaster Loan is important is that the SBA has suggested the advance will not have to be paid back.

Where’s my $10,000 Disaster Loan advance?

If you are asking this quesion, you are not alone. As far as we can tell, no one has received their advance or Disaster Loan yet. Loan applicants across the country are scratching their heads because the SBA initially suggested that the $10,000 grant wuld be available three days after the application.

You read that correctly, three days. A lofty goal by anyone’s standards. The SBA quickly, and with much public criticism, realized their gaff and removed the “three days” language from their website and application.

The website now reads: “The Economic Injury Disaster Loan advance funds will be made available within days of a successful application, and this loan advance will not have to be repaid.”

While no one really knows where your Disaster Loan advance is, we do know this, it’s probably not in your bank account. Yet.

It’s worthwhile to note that the $10,000 grant might be more of a wish list than a dream come true.

The SBA clarifies what “up to” means.

Earlier I noted that the SBA included the phrase “up to” in the description of the $10,000 advance. This week, in a statement from the SBA’s Massachusetts District Office, it was clarified that the SBA plans to limit the scope of the economic injury disaster loans. Even though these loans, advances, and grants are meant to provide businesses with immediate, emergency cash, that cash might be a lot less than many are expecting.

The Massachusetts Office of the SBA clarified that a business will receive $1000 for each employee, up to $10,000. The language of the statement suggested that this clarification affects businesses nation-wide.

So, if you are a business with, one employee, you can expect (at this time) a $1000 check. If your business has 4 employees, your check will be for $4000.

Remember, this is capped at $10,000, so if you have 15 employees, you will still only get a $10,000 advance or grant.

The relationship to other loan programs.

Adding complexity into the mix is how the SBA’s Disaster Loan relates to other programs, like the paycheck protection program (PPP).

Things seem to get more clear day by day and the current landscape suggests that the SBA Disaster Loan can be rolled into a PPP loan. The grant will be subtracted from the amount that gets forgiven. 

What should you do right now?

First of all, if you have not applied for the SBA Disaster Loan with up to $10,000 in grant/advance funds, you should do so. Click through to our COVID-19 portal of legal information to find the link.

Next, it’s time to be patient. We are in an ever-changing set of conditions and things change hour-by-hour. Once you’ve applied, all you can do is wait and see.

What will be interesting to many is how much of an advance will be given out. Will it really be only $1000 per employee? Patience and time will tell us.

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Florida Medical Marijuana

Florida Medical Marijuana – What employers need to know.

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Regarding the Florida Medical Marijuana Law, what defines “marijuana?”

“Marijuana” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin, including low-THC cannabis which are dispensed from a medical marijuana treatment center for medical use by a qualified patient.” Florida Statute § 381.986 

The vote for the use of medical cannabis in Florida.

In 2016 Florida citizens voted for a constitutional amendment permitting individuals to use cannabis for medicinal purposes. The bill passed with tremendous support garnering 72% of the votes, in the state known for its narrow margins and hotly contested elections.

While Medical Marijuana may have passed in Florida, Federal Law, as well as Florida law, does not prevent Florida employers from punishing employees for failing a drug test. Despite its landslide victory, the herbal medicine still faces controversy and must overcome ambiguity before it can be used freely by the constituents who voted for it. 

Florida Statute §381.986, in great detail, covers the use and restrictions of Medical Marijuana in Florida. This statute reads, in part: 

(1) (j) “Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification. The term does not include use or administration of marijuana in the following locations: 

a. On any form of public transportation, except for low-THC cannabis. 

b. In any public place, except for low-THC cannabis. 

c. In a qualified patient’s place of employment, except when permitted by his or her employer. d. In a state correctional institution, as defined in s. 944.02, or a correctional institution, as defined in s. 944.241. 

e. On the grounds of a preschool, primary school, or secondary school, except as provided in s.1006.062. 

f. In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis. 

(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. 

Florida employers are not required to accommodate.

The excerpt above sparked major controversy and was unbeknown to most voters until after the law went into effect. Although the usage of Medical Marijuana is legal for those people who qualify, the law is clear that an employer is not required to accommodate an employee’s medical use of marijuana. This differs from other laws such as the Americans with Disabilities Act or the Family Medical Leave Act, where the federal government has mandated that employers follow certain protocols when dealing with these classes of people. 

Florida employers do not have to accommodate to the fact that you are legally allowed to use marijuana, nor are they required to allow you to use marijuana at their business location. An employer can terminate an employee for the use of legal medical marijuana, and this termination does not create a basis for legal action for wrongful termination.

Marijuana can stay in a person’s system for up to multiple weeks, ensuring that employees subjected to drug test must refrain from the substance for indefinite amounts of time. A person with a marijuana card, depending on the rules of their employer, would not even be able to administer the medicine (smoking medical marijuana, for example) outside of work because they would run the risk of failing a drug test. 

Incentives for employers

Under the laws as they currently stand, Florida actually provides incentives for employers NOT TO allow the usage of medical marijuana in their workplaces. In 1990 the Florida Legislature enacted a State law titled “Florida Drug-Free Workplace” F.S 112.0455. This law provided specific requirements which an employer must comply with to be certified as a Florida Drug-Free Workplace. The law also provided incentives and benefits for employers who are certified as a Florida Drug-Free Workplace. The State of Florida, through this law, encourages employers to drug test employees and promotes a Drug-Free Workplace environment. In Florida, companies get reduced rates on various insurances if they implement drug-free workplace policies. 

Could the Florida medical cannabis pave the way for recreational use of weed?

Florida is also slowly moving toward recreational marijuana, with at least one bill being proposed in 2019 before dying in committee. Proponents of recreational marijuana are citing states like Colorado who have generated billions since approving of recreational use. Florida is already a tourist destination and could easily capitalize on the recreational marijuana industry. With the passage of medical marijuana and the lag time in the laws of Florida to catch up with these medical innovations, it makes you wonder whether recreational marijuana will be vertically integrated and structured the same way. The “drug” may become legal for recreational use, but under Florida Law, you could still be terminated from your place of employment. 

There have been no successful legal challenges in Florida regarding medicinal marijuana in the workplace. Of course, this amendment is relatively new and the possibility remains that the courts could decide in favor of employees – especially as the opioid epidemic worsens and more and more states are looking to medical marijuana as a better alternative to chronic pain relief. Until that time, the statute is clear that marijuana use, medical or otherwise, is not permitted under the Florida Drug-Free Workplace rules.

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U.S. Work Visas

An Overview of U.S. Work Visas for Foreign Workers

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Immigration for Foreign Workers Coming to the US

Global marketing is no longer reserved for brands with deep pockets. Many Foreign businesses are expanding into international markets, and all of them eventually find themselves at the doorsteps of the United States, the world’s largest market. With this comes the relocation of employees, and the process of obtaining work permits suitable for those individuals to become employed in the United States.

This article will go into detail about the various visas and how to determine which are best suited for foreign employees who wish to emigrate from their home countries to work in the United States.  

E-2 Visa 

To obtain an E-2 visa for a temporary worker, a foreign national must be from an E-2 treaty country. However, one does not need to reside in an E-2 treaty country to qualify, many Brazilians fall under this exception.  Brazil is not a treaty country; but many Brazilians retain Italian citizenship since Italy is a treaty country, they too become eligible for an E-2 visa. The foreign investor must also own at least 51% of the company for it to qualify as an E-2 entity.

If this criterion is met, the applicant may go ahead and submit their application to their nearest U.S. Embassy. The applicant will then go through a visa interview and screening process to obtain a visa valid for five years.

Each E-2 temporary work visa holders may stay for a maximum of two years from the date of entry, leaving before that expiration. The spouse and children of an E-2 Visa Holder can obtain work authorization while in the United States. It is important to note that E-2 Visa Holder’s children who are 21 years of age and younger can attend school but cannot work.

L-1A Visa 

The L-1A visa is for managers, executives, or specialists of a foreign company who are being transferred to their company’s U.S. offices. The regulations for the L-1A visa states that applicants must within three years preceding the time of their application been employed continuously for more than a year by a qualifying entity.

The applicants must seek to enter the United States temporarily in order to render his or her services to a branch of the same employer parent affiliate or subsidiary of the qualifying entity. 

If a company is established in both countries, the L-1 can be valid for three years. If a foreign entity is forming a new company in the U.S., the applicant can receive a one-year visa and renew in increments of three years, until the employee has reached the maximum of seven years.

The spouse of an L-1 Visa Holder can obtain employment authorization while in the United States. Children (21 years and younger) can attend school but cannot work. The main concern with L-1’s is that they do not readily apply to small businesses.

H-1B Visa for Employee with a Specialty Occupation

When applying for the H1-B visa, the job must be classified within a DOL (Department of Labor) code in order to know what general job duties will be as well as determine what the prevailing wage will be. An Example of a position would be an Agricultural and Food Scientist (19-1012.00). This is an appropriate example as it requires a minimum of a bachelor’s degree.

For employees requesting H-1B status for the first time, please keep in mind a few things. The effective date for the H-1B is October 1 of each year, which is the government’s fiscal year start date. The applicant cannot file a visa application until April 1st of each year. Preliminary work takes a minimum of one and a half months to complete, so it’s imperative that they give enough time before that filing date to do the required. 

PERM / Green Card

There are three steps to undertake for permanent residence based on employment.

1.    The first step is to file an application for labor certification under the PERM provisions.

2.    The second step is to apply for the immigrant visa petition. Once this is approved, the process can move forward with the petition to classify the beneficiary as an immigrant worker professional. 

3.    The final step is an application for permanent residence or consular processing. 

The employer is legally required to pay for all fees and costs associated with the PERM process during the initial step. The second and third steps can be paid by either by the employer, the employee, or both.

It is important to note that candidate eligible for an H-1B may not necessarily qualify for permanent residence. One does not have to be in H-1B or have an educational degree to qualify for the PERM process.

Unless the employer can demonstrate that it cannot find a suitable US worker qualified and willing to fill the position, the labor certification application will not be approved. If this occurs, the employer can begin to advertise the position and hope that the attempt will not bring forth any willing and qualified U.S. workers applying for the position.  

Planning ahead for your employees and their families who might also want to come to the US and become citizens makes all the difference.  If you require assistance when the time comes to apply for a visa consult a professional who specializes in citizenship and immigration services and can expedite the process and prepare you for any bumps in the road.

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Trust

Five Ways to Build More Trust

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Some years back UCLA did a survey of 1300 executives around the country and they asked for five traits that were keys to hiring and advancement for employees. All 1300 of them included INTEGRITY somewhere in the list.

Here’s the real kicker. 71% of them rated INTEGRITY NUMBER ONE! Being TRUSTWORTHY is an integral part of integrity. So, obviously, being trustworthy is a critical character trait if you want to move up the corporate ladder, keep your employees, or build your customer base.

Bob Burg will tell you that all things being equal people will do business with people they know, like, and TRUST.

The first law of the Boy Scout Law, which defines how a Boy Scout is supposed to live their life, is “A Scout is Trustworthy”. Here’s the explanation: “A Scout always tells the truth. He is honest and keeps his promises. People can depend on him.”

Our trustworthiness is also quite obviously a key to our relationships with others.

  • If your spouse or significant other can’t trust you, the relationship is destroyed.
  • If your friends can’t trust you and count on you, then they will simply no longer expect anything from you and eventually will simply stop being around you or having your around.
  • If your co-workers can’t trust you, then you will not be able to function as part of a team.
  • If your employees can’t trust you, they will become disengaged and productivity suffers; not to mention the bottom line.

We know this, yet somehow the focus on trust seems to be lost somewhere in the desire to “close the deal” or secure what we want. When we focus on trust, however, we find that acquiring those things and closing that deal becomes easier because of who we are and what we stand for.

When we are trustworthy, we are the go to person that everyone counts on to make it happen. That has value in so many ways, including financially.

Being trustworthy is the deal-maker…or the deal breaker.

Here are some ways you can build trust on a daily basis:

  • PRODUCE RESULTS – when you have a proven track record of accomplishing things people will trust you to meet the deadline or to accomplish the task or lead them.
  • GIVE YOUR WORD ONLY WHEN YOU MEAN IT – Don’t make promises you can’t keep.
  • KEEP YOUR WORD AT ALL COSTS – This is critical. When people know that you are going to do what you say you are going to do no matter what, then your trustworthiness grows and builds over time.
  • BE CONSISTENT – Consistency is a key to both trustworthiness and integrity. People need to know what they can count on.
  • RESPECT YOURSELF AND OTHERS – When you show respect for other people and respect yourself, then people will believe and trust that you are who you say you are and you will do what you say you are going to do.

Are you trusted? Who do you trust? Where can you deepen the levels of trust? What action will you take today to rebuild trust?

Added Bonus: CLICK HERE to receive Paul’s e-book Fifteen Innovative Ways to Show Employees You Care 

You will be asked for your name and email – no sales call unless you request it. 

Author: Paul Simkins

Paul Simkins is a Performance Management Trainer, Speaker, and Coach who helps organizations and individuals re-engage their employees, maximize productivity and experience optimal team cohesion. Paul is a second-generation native of Orlando and currently lives in Oviedo.

Learn more about Paul and his company Ah-Ha! Moments Learning, LLC by visiting: https://www.ahhamomentslearning.com/

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Spreading Yuletide Cheer

Spreading Yuletide Cheer? An Employer’s Guide to Navigating the Holiday Season

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As the year winds down, we find ourselves in the middle of another holiday season. For many Americans it is a time steeped in tradition and festivity. In addition to family celebrations and time with friends, December also brings many company activities. For example, many companies organize holiday parties, decorate their offices, host parties or even set-up secret gift exchanges among coworkers. Usually these events are organized with good intentions in hopes of fostering a fun work environment. In truth, such activities can be a huge “win” by offering opportunities to celebrate the successes of the year, building community within the workplace, and growing a strong reputation. Many employers, however, do not realize that there are also some potential risks involved with observing holiday festivities.

While you don’t have to cancel the holiday fun, there are several issues employers should proactively watch and plan for during this holiday season.

Party Planning. While holiday parties are festive (and should be), each one holds a minefield of potential embarrassment, regrettable behavior, and, in worst case scenarios, discrimination and harassment lawsuits. Employers can safeguard against these claims in many ways.  For example, it might be wise to send a memo to employees before the holidays reminding them that the company’s dress and behavior codes – and harassment policies – still apply to an off-site, after hours, company-sponsored event. Examples of bad party etiquette usually stem from too much free alcohol and include things like the odd lewd remark, an offensive joke or inappropriate touching. These can all lead to complaints of sexual harassment or misconduct.

It’s important to note that mandatory holiday parties are considered work, so you can be held responsible for any injuries at the party. Make sure your business insurance will cover any injuries sustained during holiday events. Employers should also be aware of the potential for accidents and liability and take reasonable steps to avoid them.

Additional Time Off. The holiday season can also upend issues related to time off.   As employees take extra time off to shop and prepare for the holidays, problems might arise from long lunches, leaving early, and arriving late. While there is no need to be a Scrooge, employers might want to take this opportunity to note the importance of timekeeping. Make sure everyone is treated equally and consistently to avoid any misunderstandings or possible discrimination.

As an employer, you might also find yourself dealing with issues of conflicting holiday requests from staff. Strive to balance holiday requests against the operational needs of your business. Staff will have to accept that they can’t all take the same time off!

Religious Sensitivity. There is no way around the fact that, for many, the holidays are rooted in religious traditions.  Christmas, Hanukkah, and Kwanzaa are all reasons to celebrate.  But, keep in mind that not everyone observes those traditions. For example, Muslims and Jehovah’s Witnesses do not participate in those celebrations. Employers would be wise to consider various options to minimize hard feelings.  Make sure that gift giving and holiday parties are voluntary in nature so that those who choose to abstain from celebrating for religious or cultural reasons are not made uncomfortable.  Also, employers should be conscious of religious symbols or phrases in the workplace.

Don’t let the worries of liabilities or risk keep you from enjoying the season! You can celebrate without overstepping the boundaries. By ensuring that some of these eventualities have been considered and prepared for, everyone can relax a bit as the year winds down.

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Knowing Employment law basics

How Knowing Basic Employment Law Can Help In The Workplace

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Knowing your rights at work is of great importance; it ensures that both parties, employers and employees, are adhering to current government laws. However, it can sometimes be tricky knowing how many hours (by law) you can work in a week? Or how many days holiday your employees are actually entitled to? Within each company this is normally covered by HR (human resources) or line managers. They are the ‘go to people’ for this legal information.

What are the basic rights in the workplace?

Your rights at work will always depend on two factors: your statutory rights and your contract of employment. It is always courteous to remind employees to read through their contract thoroughly before signing. It is advised to encourage employees to contact you if they are unsure of anything in the contract, whether this is a particular clause or perhaps phrasing that they might not fully understand. This creates good rapport between you and your future employee.

As a company it is your responsibility to provide the employee with a copy of their rights and contract of employment. They can then refer to this as and when needed.

Why should your company know the basic employment laws?

Knowing employment laws inside out ensures your company is aware of the rights and responsibilities as well as looking after employees in the best possible way. Employment law is a complex area and therefore requires knowledge, structure and revision; keeping up to date with new developments and policies. Laws change year on year so regular employment law training can be of great benefit to your organisation or business.

Keeping your company up to date with employment laws

Employment law training ensures HR practitioners/line managers gain, or update and review their employment law knowledge on a regular basis. New legislation is always being introduced so it is therefore good practice to be aware of these and enforce them in the workplace.

Staying up to date with employment laws will help you avoid any pitfalls as getting it wrong can be extremely costly. Protect your company and employees from today onwards with regular training and qualifications.

Source from www.sme-blog.com to The Small Business Blog

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What Is Lawful or Unlawful

What is Lawful or Unlawful Language in Employee Handbooks?

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Rules Regarding Confidentiality
Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees and other nonemployees, including union representatives. The confidentiality provisions of employee handbooks can thus violate the law if not artfully prepared. Rules prohibiting the discussion of the “terms and conditions of employment” are not allowed, while rules that prohibit the disclosure of legitimately confidential employer information are acceptable.

The following is a sampling of the confidentiality rules deemed unlawful:

  • Do not discuss customer or employee information outside of work, including phone numbers and addresses. The prohibition of disclosing “employee information” was impermissible.
  • If something is not public information, you must not share it. Again, this prohibition is too broad and thus unlawful.
  • The following is a sampling of the confidentiality rules deemed lawful, as each did not reference employee information, were not overly broad, and did not contain language that would reasonably be construed to prohibit Section 7 communications:
  1. Unauthorized disclosure of “business secrets” or other confidential information.
  2. Do not disclose confidential financial data, or other nonpublic proprietary company information. Do not share confidential information regarding business partners, vendors or customers.

Rules Regarding Employee Conduct Toward the Company and Supervisors  
Employees have a Section 7 right to criticize or protest their employer’s labor policies or treatment of employees, both while at work and in the public forum. While rules banning “insubordination” are generally permissible, rules that amount to a blanket ban of “disrespectful,” “negative,” “inappropriate,” or “rude” conduct toward management might be unlawful, depending on the context. By contrast, the same language aimed at employees’ conduct toward co-workers, clients, or competitors is lawful because employers have a legitimate business interest in having employees act professionally and courteously toward non-management individuals, subject to certain caveats discussed below.

The following is a sampling of rules dealing with management deemed unlawful:

  • Be respectful to the company, other employees, customers, partners, and competitors.The inclusion of “the company”   made this rule impermissible.
  • Refrain from any action that would harm persons or property or cause damage to the company’s reputation. The report maintained that this rule (and others like it) was unlawfully broad because it could be reasonably read to require employees to refrain from criticizing the employer in public.

By contrast, the following were lawful:

  •   No “rudeness or unprofessional behavior toward a customer, or anyone in contact” with the company. Again, this is acceptable because it did not mention “management” or “the company.”
  • Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors. Here, the emphasis of the rule is the performance of the employees, as opposed to the communicative components of employment. It was thus permissible.

Rules Regarding Employee Conduct Toward Fellow Employees
In addition to employees’ rights to discuss their terms and conditions of employment and/or criticize their employers’ labor practices, employees also have a right to argue and debate with each other about unions, management, and the like. Thus, when an employer bans all “negative” or “inappropriate” discussions among employees, without further clarification, such rules can be reasonably read to prohibit discussions and interactions that are protected.

The following is a sampling of unlawful “employee-employee” conduct rules:

  • Don’t pick fights online. Far too broad.
  • Show proper consideration for others’ privacy rights and for topics that may be considered objectionable or inflammatory, such as politics and religion. Discussion of unionization would likely be chilled by this rule because it can be an “inflammatory” topic.
  •   Do not send unwanted, offense, or inappropriate emails. This rule was too vague and overbroad.

By contrast, the following were lawful:

  • Do not make inappropriate gestures, including visual staring.
  • Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors. This simply requires that employees be respectful and cooperate with their co-workers.
  • No harassment of employees, patients, or facility visitors. Harassment is distinct from contentious communication.

Rules Regarding Use of Company Logos, Copyrights, and Trademarks
Though copyright holders have a right to protect their intellectual property, company rules cannot prohibit employees’ fair protected use of them. The easiest example of this is an employee’s right to use company logos on picket signs, leaflets, etc.

The following is a sampling of rules deemed unlawful because of over-breadth:

  • Do not use Company logos, trademarks, graphics, or advertising materials in social media
  • Company logos and trademarks may not be used without written consent.

By contrast, this rule was lawful as it simply requires employees to respect copyright laws:

  • Respect all copyright and other intellectual property laws. For the employer’s protection as well as your own, it is critical that you show proper respect for the laws governing copyrights, fair use of copyrighted material, owned by others, trademarks and other intellectual property, including the employer’s own copyrights, trademarks, and brands.

 

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Workers Compensation Requirements in Florida

Workers Compensation Requirements in Florida

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Workers’ compensation is a major expense for most Florida businesses. It is important for employers to understand their duties and responsibilities under Florida law. When workers’ compensation insurance is purchased as required by Florida law, business owners are protected from being sued, except for under special circumstances, when an employee gets hurt or ill at the workplace, Under workers’ compensation, when an employee gets hurt on the job, the insurance company will pay all medical bills and partial wage replacement for the employee.

All businesses in Florida, with 4 or more employees, full-time or part-time, must have workers’ compensation insurance. Corporate officers count as employees unless the officer has been issued an exemption.

All construction industry businesses must have Workers’ Compensation, unless the business owners have exemptions and there are no employees. The owner is included unless they specifically file for an exemption.

Florida State and local governments are required to carry workers’ compensation insurance.

Farmers who have more than five regular employees and/or twelve or more additional workers for seasonal agricultural labor lasting thirty (30) days or more are also required to carry workers’ compensation coverage.

The rule used to be that only the owners of a business can file for exemption, which means they don’t need to pay for Workers’ Compensation coverage, because they wouldn’t sue themselves. Florida Statutes have been amended to include Limited Liability Company (LLC) members as employees. LLC members will be included on their Workers’ Compensation insurance policy; however, they may elect to be exempt by filing a Notice of Election to Be Exempt with the Division of Workers’ Compensation.

Florida State and local governments are required to carry workers’ compensation insurance.

Farmers who have more than five regular employees and/or twelve or more additional workers for seasonal agricultural labor lasting thirty (30) days or more are also required to carry workers’ compensation coverage.

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Drug Free Workplace Policy and Procedure

Drug-Free Workplace Policy and Procedure Development

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Implementing an effective Drug Free Workplace program takes thoughtful consideration of what you are trying to accomplish, how you want to accomplish it, how much it will cost and how much it will save you company money. The first step is to develop a comprehensive policy. Establishing a comprehensive drug-free workplace program may be the best means of preventing, detecting, and dealing with substance abusers.

Your policy should include the company’s philosophy about alcohol and other drug use and abuse, the business reasons you are instituting a Drug Free Work Place program, your commitment to providing a safe workplace, a clear statement of what is prohibited behavior, definition of terms, the consequences of violating the policy, the state and federal regulations that impact your company and your employees, the elements of your program, fitness for duty issues, and the procedures for implementing and maintaining the program.

This should be your company’s policy, and it should be tied to other policies and programs, like time and attendance, health care coverage, disciplinary procedures, or family medical leave. In developing a policy and procedure that works best for your company, you will need to make numerous decisions. These decisions need to be made before you attempt to implement the program. Senior leadership and upper and middle managers need to be consulted and a consensus reached. You will have a more successful program if you have everyone on board.

The three most important things about your Drug Free Work Place policy are:

  1. It must be written.
  2. It must be communicated to employees.
  3. It must be followed consistently.

Your company should have a written policy that clearly states what is expected of employees and the consequences of policy violations. There need to be training for management personnel and others responsible for identifying and dealing with suspected substance abusers. You may also want to consider pre-employment testing to prevent the hiring of workers who use illegal drugs; and reasonable suspicion, post-accident and follow-up testing available as other options to consider. A lawyer can help you clearly and effectively plan your Drug Free Workplace Policy.

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How to Fire an Employee in Florida

How to Fire an Employee in Florida

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The State of Florida is an employment-at-will jurisdiction. What that means is, employers can terminate their employees with or without cause. In most situations, employers don’t have to provide advance termination notice. Although employers can typically let their employees go without notice or cause, federal employment laws are a little different, and require them to provide termination notice if they terminate a large number of employees. Anti-discrimination employment regulations prohibit employers from firing their employees, if they are discriminating against them or for other malicious reasons. Florida employers must comply with anti-discrimination laws, advance notice requirements and last paycheck laws when it comes time to fire an employee.

Florida gives employers the option of terminating any employee at any time, for any reason, or for no reason at all. Sometimes employee agreements or contracts contradict the at-will policy. If you have an employee contract, check the wording, or have a lawyer look it over for you, to make sure where you stand. You should document instances of poor performance and tardiness, and maintain good records of employee performance reviews and any previous disciplinary interventions. This will provide legitimacy to your actions and prevent any complaints, lawsuits or accusations that termination was discriminatory. Keep these records, even after the employee has left, and have a cheat sheet of documented performance lapses on hand to refer to during the termination meeting.

You have to comply with federal whistle-blowing laws. Firing an employee based on a previous complaint alleging your failure to comply with health and safety regulations, wage laws or your failure to comply with any other state or federal employment law, is illegal.

COBRA is a federal law that applies to employers with more than 20 employees. If these employers administer a group health plan, they are required to offer terminated employees, their spouses and dependents the option of temporary continuation of health coverage at group rates. Terminated employees may be excluded from the plan if they were fired for gross misconduct.

Pay your terminated employee by your next regular payday following termination. The U.S. Department of Labor does not require that you pay your terminated employees immediately, and the Florida Agency for Workforce Innovation, which administers the state’s labor laws, does not require you to pay your employees until your next regularly occurring pay date.

Nobody likes to fire or be fired, but to make it simpler, you can briefly deliver the news by summarizing the well-documented, job-related reasons for the termination. That way, while the employee may not like it, he or she will have little to dispute. Allow them to offer what they have to say, and listen. Always avoid using any harsh words during termination meetings that would serve only to inflame the issue. Stick to the facts; don’t make generalizing statements.

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How to File a Workers Compensation Claim

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Workers’ compensation laws are there to protect workers who get hurt on the job. They are there to ensure that employees who are injured or disabled on the job are provided with a monetary settlement, without litigation. Workers’ compensation laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents.

The Federal Employment Compensation Act provides workers’ compensation for non-military, federal employees. Many of its provisions are typical of most workers’ compensation laws. Awards are limited to “disability or death” sustained while in the performance of the employee’s duties but not caused willfully by the employee or by intoxication. The act covers medical expenses due to the disability and could require the worker to undergo job retraining. A disabled employee receives two-thirds of their normal monthly salary during the time they are on disability, and may receive more for permanent physical injuries or if they have dependents.

If you’ve been injured or gotten seriously ill while at work, you may need to file a workers’ compensation claim. Workers’ compensation pays for medical care, rehabilitation, and some wage replacement if you have to miss work. To get these benefits, you must file a claim and follow the procedures carefully. An attorney can assist you in filing your claim.

First, if you’re hurt, get medical attention. Then tell your employer of your injury as soon as possible. In Florida you have 30 days. Usually, your employer will have claim forms for you to fill out and submit or can obtain a form quickly. After that, it’s your employer’s responsibility to submit the paperwork to the proper insurance carrier. After you or your employer report the injury to the insurance company, many companies will have an insurance claim adjuster call you within 24 hours to explain your rights and obligations.

If your claim is not disputed, it will be approved and an adjuster for the insurance company will contact you or your employer with instructions on how to submit your medical bills for payment. Hopefully everything will go smoothly. But sometimes employers will fight your claim, in an effort to keep their workers’ compensation rates down. The best way you can counteract such disputes is by producing good documentation, including complete medical records, of your injury and treatment.

If your injury is not permanent and you didn’t miss any time from work, getting payment for your medical bills will probably be the extent of your claim; there won’t be much else for you to do. If you are temporarily unable to work because of your injury, you will also begin receiving checks to cover your wage loss, usually within a week or two after your claim is approved. Your employer will notify the insurance company to stop sending you wage-replacement checks as soon as you recover and return to work.

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Should employers utilize handbooks?

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An employer is not required by law to have an employee handbook. However, in most cases, it is highly recommended. An employee handbook is a great resource because it provides a centralized set of guidelines for the employer’s policies and procedures. Oftentimes, the source of employee disputes concerns a lack of understanding of employer expectations. In addition, unwritten rules and policies can lead to inconsistent treatment among staff. This, in particular, can be problematic.

An employee handbook should include at a minimum:

  • A statement regarding the at-will employment relationship
  • An equal employment opportunity statement
  • A policy regarding sexual and other types of harassment in the workplace
  • Internet access, e-mail, and voice mail policies (make sure your employees understand they have no expectation of privacy)
  • The Family Medical Leave Act
  • Policies concerning vacations, sick time and personal time
  • An anti-discrimination policy

Different types of businesses will have different needs in terms of policies and procedures and undoubtedly there are a number of other policies that should be included in your handbook that are not identified above. You will need to evaluate your needs on an ongoing business. For instance, if you operate a business that is document-intensive, a document retention policy would be a good idea.

Regardless of what your policies and procedures are, your work does not stop with the creation of handbooks. The most important aspect of your handbook is education. Your employees must have a good understanding of what your policies are and this will require training. It would be a good idea to maintain both a written and electronic version of your handbook and to provide training sessions for all employees to discuss and explain all of your policies. Keep in mind that your business will always be a work in progress and that you should continuously reevaluate your handbook and update when necessary.

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Does the Law Require Your Employer to Pay You Overtime Pay?

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A dozen Jacksonville area residents are suing Dollar General claiming the company owes them unpaid wages. The suits included a total of 791 individuals from all over the U.S. All the Dollar General suits claim that the company has a policy of classifying employees as salaried managers who work an average 60 to 90 hours per week when they perform managerial duties for only about five to 10 hours per week and the remainder of the time they perform non-managerial duties.

There have been several lawsuits in recent years where employees have had to fight a classification made by their employers to make them salary to avoid paying overtime when they were actually hourly employees. Most people in the US work force have the heard the terms “exempt” and “non-exempt,” but what do they mean? The basic law is that employers are required by the Fair Labor Standards Act (FLSA) to classify their employees as either exempt or non-exempt.

If your job is classified as non-exempt, this means your employment is subject to the rules laid out in the FLSA. The basics are that you are paid hourly and you must be paid overtime pay if you work over 40 hours a week. If your job is exempt you are not subject to the 40 hour work week, minimum wage, and overtime rules. Usually these positions are described as “salaried” instead of as “exempt” and include executive, administrative, professional, and outside sales positions.

Many jobs fall into the grey area in between which is why there have been recent lawsuits against Dollar General and others. There are several factors the courts use to evaluate whether an employee is hourly or salary and it is important to look into your rights if there is any doubt in your mind about whether you should be an hourly employee.

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Social Media in the Workplace

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Social media in the workplace and an employer’s ability to control it is a hot topic in today’s technological world. The United States Supreme Court recently said it will review a federal appeals court ruling that sided with Ontario, California police officers who complained that the department improperly snooped on their texts. Typically the courts have enforced the notion that any company hardware used by employees to send text messages, emails, etc. is the property of the employer and thus, the employer has the legal right to review the messages.

The federal appeals court in the California case distinguished the text messages at issue by the fact that the employees had paid their own money for text messaging capability. Nevertheless, while the United States Supreme Court has ruled it will hear the case, it is anticipated that the high court will side with the employer. Facebook, Twitter, LinkedIn, blogs , Google and IMs have all led to new concerns and risks for employers. For example, does an employer have the right to terminate an employee who posts a nude picture of himself or herself on Facebook on his or her own private time? It is quite possible under that scenario that the employee may have a viable defense that such action violates private rights.

Where’s the line between prudent monitoring and invasion of privacy? Whether you are an employee or an employer, you have to be concerned about the use of social media whether on the clock or not. It is very important that employers develop effective policies specifically regarding social media and that they apply such policies uniformly. For those employers out there, keep in mind that while you may be able to monitor emails, text messages and the like, various states, including Florida, have enacted laws making it illegal to listen in on and record your employees’ telephone conversations without their knowledge.

If you have any questions about social media or any other employment law issues, you should consult an attorney.

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