Miami Employment Lawyer Blog

The U.S. Equal Employment Opportunity Commission (EEOC) has a mission statement stating the agency is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."

EEOC Coverage

Many employers with staff numbers greater than 15-20 people are subject to oversight by the rules established by the EEOC, and this spans beyond government agencies or those entities engaged in unions. That is, if you are an employer with at least 15 employees, the rules/guidelines of the EEOC are part of the portfolio you should give notable attention.

What about those entities that have a religious underpinning, and want to curtail business on Sundays? This alone is not explicitly banned as outlined in an article by the Orlando Sentinel about those companies that choose to not be open on Sundays for religious reasons. However, the EEOC pays attention to whether there is not enough separation of Church and State related to employment discrimination.

Dynamic Medical Services Case

Take the case of Dynamic Medical Services, Inc. This Miami company provides medical and chiropractic services, but in early in May, it was charged having too great an emphasis on workplace time spend on religious activities. The EEOC filed charges recently stating that Dynamic Medical Services, Inc. was one such example requiring employees to: "spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving" as part of their condition for employment. Claimants cited both a hostile work force and disparate treatment of employees, which was enough to trigger action by the EEOC.

While this case is far from resolved, it is important to understand the role of the EEOC in potential religious discrimination cases. The EEOC breaks the range of issues down into more than a half dozen categories including: work situations, harassment, segregation, reasonable accommodation, dress and grooming policies, undue hardship, and general employment policies/practices.

EEOC Limits

There are time limits to file employment discrimination cases - most of them tied to a 180-day clock, although EEOC discrimination claims may depend on the type of discrimination. The types of damages that can be pursued in such an employment discrimination case may include compensatory (money for the victim) or punitive (consequences intended to rehabilitate the employer to avoid problems in the future) damages. This may vary depending on the type of EEOC complaint and the staff size of the employer in question.

Religious discrimination claims are not straight-forward and you are best off consulting with our employment lawyer to determine what path you could pursue with a religious discrimination complaint against an employer.

Related Links:

EEOC Florida Lawsuit Aims at Curbing Sexual Harassment

EEO Procedures Implemented by Employer

A company submits a bid to provide goods and services to the local Chamber of Commerce or the mayor's office or the State's Attorney's office. If that company has any business ties to Cuba, the State of Florida does not want that bid. That is the current position of the governor's office. But that position is currently in dispute in a recent U.S. District Court opinion against the State of Florida.

Florida Law
In 2012, the Florida legislature passed Florida Law 196, Section 2. This law is known as the Cuba Amendment and "prevents any company that does business in Cuba - or that is in any way related to a company that does business in Cuba - from bidding on state or local contract in the State of Florida."

The Lawsuit
Odebrecht Construction, Inc., filed suit on June 5, 2012 in the U.S. District Court in the Southern District of Florida for an injunction to stop the law from going into effect on July 1, 2012. Odebrecht's argument was that the Florida law conflicted with federal law and was unconstitutional. Odebrecht Construction, Inc., a Brazilian-owned company based in Coral Gables, FL, has foreign affiliates that operate in Cuba. This is the company built the American Airlines Arena and the North Terminal at Miami International Airport. At the time of the lawsuit, it was bidding on Florida Department of Transportation contracts totaling more than $3.4 billion.

The U.S. District Court issued an injunction on June 25, 2012 preventing the law from going into effect on July 1, 2012. The court determined that Odebrecht's argument was strong enough that it might win at trial. The court also concluded that the state would not suffer any substantial damages if the law was not put into effect. The Florida Department of Transportation appealed to the U.S. Court of Appeals for the 11th Circuit.

The Appeals Court Decision
On May 6, 2013, the 11th Circuit agreed with the District Court and upheld the injunction stating that Odebrecht, "has demonstrated a substantial likelihood of success on its claim that the Cuba Amendment violates the Supremacy Clause of the Constitution under principles of conflict preemption".

What Does This Mean for Florida?
This ruling applies to more than just the status of Odebrecht or construction companies in general. The 11th Circuit cited 238 companies that the State of Florida invests in including construction, banks, pharmaceuticals, major airlines, and oil companies.

The Cuba Amendment contained more than just a "you can't conduct business with the State clause", it also contained civil penalties for false claims of compliance with the Amendment. Those penalties ranged from between $2 million and twice the amount of the contract, which appears small in comparison to the State's recently passed $74.5 billion budget.

Whether you are a developer interested in obtaining contracts with the State of Florida, a range of businesses that has ties to Cuba, or workers that may be hired by such companies, this story is not yet complete. Both the governor's office and Attorney General's office have not yet indicated where the State of Florida may take this conversation.

For employment law questions about businesses with ties to Cuba - or contracts with the State of Florida - consult our Florida employment attorney.

Related Links:

Equal Pay Act Lawsuit Against University of Miami Alleges that Woman was not Paid the Same as Men for the Same Work

The divisive issue of "English Only" has been around for decades. Now, it is back at the forefront of Florida employment issues. Governor Rick Scott changed unemployment application requirements in 2011. The State of Florida now requires that all unemployment applications be submitted online, in English and applicants must complete an online skills assessment. The Department of Labor's Civil Rights Center (CRC) has determined the online and English only requirements are discriminatory.

Local News Recaps

The Miami Workers Center filed a complaint against Florida that the Florida unemployment insurance application process was discriminatory against those with disabilities and those with limited English proficiency. The Raw Story reported that the "only 43 percent of Floridians who applied for benefit in 2012 ... ever received a first payment, compared to a national average of 70 percent." George Wentworth, attorney with the National Employment Law Project, stated "the number of workers who have been disqualified for purely procedural reasons has increased over 400 percent since online filing and the initial skills review were mandated in 2011."

Fox News Latino interviewed a worker from Palm Springs who fell victim to the online and English only requirements. The worker went to apply for unemployment benefits and was seated in front of a computer to fill out the application. She didn't understand English well and had difficulty filling out the application and answering the 45 test questions. She was denied benefits.

Fox News Latino noted that "one in four Floridians speak a language other than English at home, according to the Census, and four in 10 Floridians work with some sort of disability." Florida ranks last in the nation for unemployed receiving unemployment insurance benefits.

The Department of Labor

The CRC states that employers can have English-Only rules, but that such a rule can only be applied in very limited circumstances and only for a business necessity. "EEOC Regulation 29 C.F.R. § 1606.7(a) provides that a rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. Such a rule is presumed to violate Title VII. Therefore, a speak-English-only rule that applies to casual conversations between employees on break or not performing a job duty would be unlawful."

The CRC investigated the complaint filed by the Miami Workers Center. They found the Florida State Office of Unemployment Compensation (OUC) website did not have proper translations into Spanish or French Creole despite the large populations that speak these languages within the state. Notices in Spanish and French Creole, and another 10 languages, directed applicants to call the unemployment compensation hotline for assistance. The OUC has specific phone numbers for assistance in different languages, but callers were told to have a family member or friend translate the Internet application for them and fill it out in English.

The CRC determined that Florida's OUC practices showed a pattern of discrimination in practice against those with limited English proficiency. The CRC listed a number of actions the state needs to take in order to do away with the discriminatory effects, including reinstating the paper and phone application options.

If you have been denied unemployment benefits and need assistance, talk to our employment attorney.

Related Links:

Florida Court of Appeals Reverses Unemployment Appeals Commission Decision that Denied Unemployment Benefits to Employee for Isolated Violations of Company Policy

On Monday, April 22, 2013 Florida Governor Rick Scott signed a new education bill (Senate Bill 1076) into law that, in part, will change how Florida high schools students view their graduation options, and ultimately their employment potential.

Local media has covered this current story, with many commenting on the potential benefits to a two-tiered diploma system for high school students in South Florida, including the report filed by NBC's Miami affiliate.

In simple terms, the new law will allow for a two-tiered diploma system for high school graduates. In addition to a "traditional" diploma, which leads graduates to college options, a new option will be created allowing for diplomas that will shepherd graduates into trade and vocational schools. One will be stamped with scholar for those going to college and one will be stamped professional for those on a vocational stamp. The requirements for each diploma will vary slightly as explained by WLRM, the National Public Radio (NPR) and TV station in South Florida.

Rather than delve into the pros and cons of changes to other graduation requirements in this new law, we will dig into some specific numbers to understand more about the initial reaction on the potential benefits of a two-tiered high school diploma system and what it may mean for our local economy.

The Alliance for Education, whose self described "mission is to promote high school transformation to make it possible for every child to graduate prepared for postsecondary learning and success in life", compiled some statistics on the value of what 1,000 additional high school graduates in the Miami-Fort Lauderdale-Pompano area might mean to the local economy. Based on 2010 survey data, they concluded that just 1,000 additional graduates would support 100 new jobs in the area, and contribute more than $1 million into the local and state economy.

A decade ago the National Education Association cited a national statistic from the U.S. Department of Labor concluding that high school dropouts are nearly 75% more unemployable as high school graduates. The NEA also stated that "youth who drop out are more likely to experience negative outcomes such as unemployment, underemployment, or incarceration. NPR stated that "the dropout rate of Florida's 2010 graduating class cost the state $1332 million in lost income and $19 million in lost federal taxes, according to an American Institute for Research estimates."

So, a notable increase in potential high school graduates should both increase the employability of the young labor force in the Miami area and contribute to improving our local economy. As this new law is implemented, it will be interesting to see whether the graduation numbers in Florida, and South Florida in particular, will see an increase. Ironically, an increase in high school enrollment may play a role in how local businesses enforce the State of Florida's Child Labor Laws.

If you have questions about child labor laws and how they are enforced in our community, contact a Miami employment lawyer.

Related Links:

Limits on Teens Working

We reviewed the Miami-Dade and Broward County Wage Theft laws in February. Right now the Florida legislature is looking at a statewide wage theft bill.

The current Miami-Dade and Broward Counties wage theft laws have a process that is outside of the court system. They require an employer to pay two to three times the wages owed if an employee is successful in their claim. The current Florida state bill is a bit different.

The Florida Bill
The Florida bill assigns wage theft complaints to the county courts so long as the amount does not exceed $15,000. The bill defines wage theft as "an illegal or improper underpayment or nonpayment of an individual employee's wage, salary, commission, or other similar form of compensation within a reasonable time from the date on which the employee performed the work to be compensated."

The state bill requires employees to notify the employer they have not been paid and will be filing a lawsuit. The notice must tell the employer how much the employee is owed, the dates and hours of work not paid, and the total amount owed as of the date of the notice. The employer will then have 15 days to respond after receiving notice.

If the employee is not satisfied by the employer's response to the notice, then the lawsuit will go before the court. The court is limited to awarding the actual compensation owed. The new law prohibits awarding any punitive damages.

A county or municipality can set up an administrative process to assist employees in filing wage theft suits under this new law. The county or municipality cannot resolve any claim, but only assist in the filing of the claim. If a county or municipality sets up an administrative process, it must include an opportunity for the employer and employee to negotiate a resolution.

This bill will preclude any county wage theft laws except for Miami-Dade's current law. But, the Miami-Dade law will only cover businesses that annually gross less than $500,000. Businesses that make over $500,000 would be covered by the new state law.

Lobbying Efforts
Businesses are lobbying for the bill, arguing that having uniform state standards would be beneficial to both employees and employers. The Florida Retail Federation says this bill is a necessity to prevent a patchwork of county ordinances. The federation challenged the Miami-Dade law, but lost.

Employee associations are not happy with the bill. They argue that going through the court system will be onerous. News Channel 5 noted that opponents of the law say "many workers at low-paid jobs live paycheck to paycheck and cannot afford an attorney nor take time away from work to be in court."

The Miami Herald printed an editorial arguing against the proposed wage theft bill. They state that wage theft "happen[s] often in the construction business and the agricultural industry, where workers have little time or clout - and even less money - to pursue compensation through the courts." A wage theft bill was introduced in the Florida legislature in 2012, but it failed. This year's bill is getting more attention. If you have questions about wage theft and how to work with the Miami-Dade or Broward County wage theft systems, talk with an attorney to make sure your rights are protected.

Pension and health plans provided by employers are governed by the Employee Retirement Income Security Act of 1974. We commonly know it as ERISA. ERISA sets minimum standards for how these plans are to be run to protect employees who are part of the pension or health plans. This, and many other Department of Labor laws influence your health plan rights - let's explore the range of laws that are relevant.

ERISA

ERISA makes sure that employees who join a pension or health plan are provided with information on the plan. This information must include the plan rules, financial information, and how the plan is operated and managed. It must also explain "when an employee can begin to participate in the plan, how service and benefits are paid, and how to file a claim for benefits." U.S. Department of Labor. ERISA requires all plans to have grievance procedures for participants and guarantees the right to sue for benefits and breaches of fiduciary duty.

The plan manager is required to protect the plan's assets under ERISA. These managers have fiduciary responsibilities (http://www.dol.gov/dol/topic/health-plans/fiduciaryresp.htm) to invest for participants and beneficiaries best interests and paying any expenses. All investments need to minimize risk so there are no large losses. And managers must avoid conflicts of interest. ERISA does not require employers to have pension plans. It only regulates how they are to be operated once established.

COBRA

An important part of ERISA is the Consolidated Omnibus Budget Reconciliation Act (COBRA), which allows workers and their families to remain on a former employer's health plan for a limited time after an employee loses or leaves their job. Other instances where employees can remain on the employer health plan are when an employee transitions between jobs, there is a death, divorce, or other life event. While COBRA allows for continued coverage, the employee becomes responsible for the entire coverage premium with no assistance from the employer. It is necessary to note that COBRA coverage is only required of employers with 20 or more employees.

HIPPA

ERISA was amended by the Health Insurance Portability and Accountability Act of 1996 (HIPPA). HIPPA prevents health plans from denying coverage to employees who have pre-existing conditions. Health plans cannot discriminate due to a person's health status, genetic information, or disability. HIPPA also requires a new employer's plan to give credit to new employees if they had prior health coverage, thereby eliminating the standard 12-month exclusion period. This credit is only available if the employee had less than a 63-day break in previous coverage. Another facet of HIPPA that is most visible is the requirement that doctor's offices and hospitals remind patients that all medical records are private and the patient must give written consent prior to records being released to another person. There are some pending changes to HIPPA coming later in 2013 that we will be tracking.

Additional Laws

Additionally, there is the Newborns' & Mothers' Protections Act (1996) that requires health plans to pay for at least a 48-hour hospital stay after childbirth. The hospital stay must be at least 96-hours if delivery was by Cesarean section.

Finally, ERISA includes the Mental Health Parity Act (MHPA). This requires health plans that have no annual or lifetime dollar limits on medical benefits to not impose limits on mental health benefits. The MHPA does not require plans to offer mental health benefits.

This blog post covered a range of details on laws influencing pensions and health insurance coverage. If you have questions or need assistance understanding your benefits, contact our employment lawyer.

Florida is well known for its extensive agriculture and winter growing season. Florida citrus is known worldwide and South Florida (plant hardiness zones 10a and 10b) is home to not only citrus, but many other fruits and vegetables. With all of these row crops to harvest, most growers hire temporary workers to assist them. These temporary workers are known as migrant or seasonal workers and Miami sees its fair share during the harvest.

Federal Law

Migrant and seasonal workers are covered by the federal Migrant and Seasonal Agriculture Workers Protection Act (MSPA). This law covers wages, housing, transportation, disclosures and recordkeeping. What is the difference between a migrant worker and a seasonal worker? Seasonal workers sleep in their permanent place of residence while migrant workers are ones who are away from their permanent place of residence overnight.

People who hire migrant or seasonal workers for harvesting on a farm or ranch are called agricultural employers. Agricultural employers also include canneries, packaging plants, plant nurseries, or other processing establishments. Individuals who hire, employ, transport, or provide housing to migrant workers are known as Farm Labor Contractors. FLCs must register with the U.S Department of Labor and have a certificate of registration.

Agriculture employers do not have to use a Farm Labor Contractor, but even if the employer does, the employer will be considered jointly responsible for any agricultural workers supplied by an FLC. If the FLC is the person paying the agricultural worker directly, the agricultural employer is still responsible for assuring the workers are paid their proper wages on time.

Records Requirements

Both agricultural employers and farm labor contractors must keep accurate records. The records must track each employee and their individual work hours. While this may seem to be standard procedure for most businesses, this law is in place to protect migrant and seasonal workers who may have been taken advantage of historically. Workers must be paid all wages owed to them at regular pay periods. Wages must be accompanied by written earnings statements as well.

For every hire, the agricultural employer must provide each employee with a written disclosure of the terms of employment. This disclosure must list the work the employee is being hired to perform, the wages that will be paid for the work, how long the employment will last, and whether the employer will provide workers' compensation insurance or state unemployment insurance. Under the MSPA, this disclosure must be written in the employee's native language.

Housing and Transportation

Agricultural employers or FLCs can provide housing for migrant workers. Any housing that is provided must meet all federal and state safety and health standards. Florida's Commission on Human Relations manages fair housing laws for farm labor at the state level. Migrant housing must also be inspected and the certification must be visibly posted.

For transporting seasonal and migrant workers, all vehicles must be well maintained. The vehicles must meet all federal and safety standards. Vehicles must be operated by licensed drivers and be properly insured.

The MSPA is enforced by the Wage and Hour Division of the U.S. Department of Labor. If you have questions about your seasonal or temporary employment under the MSPA, contact our employment lawyer.

Related Link:

Understanding Miami-Dade and Broward County Wage Theft Laws

Some employees have computer and Internet access at their workplaces. There are workplaces that do not have employee-accessed computers, but supply WiFi hotspots for clients and customers to use with their personal devices. With all these possible Internet access points, what is and what is not acceptable for employees to access on the Internet? This is where employer Internet Use Policies (IUP) come into play.

Many employers have an Internet Use Policy in place to inform employees with Internet access what their limits are. IUPs can be written with very strict limits and employees are required to formally acknowledge they have received and read the IUP. Some employers don't bother with an IUP. Most employers fall between the two extremes.

What are the rules?

IUPs are employer specific. Each employer can decide what should be in an IUP depending on the business and location. Internet accessibility for the general public has been in place for only about 20 years. The laws enacted to deal with the Internet are varied and application depends on where in the world you are accessing and where in the world the accessed information is located. Internet source reliability is highly varied as well. There are many on-line Internet law sites that you can explore to learn about the law like Law.com and FindLaw.com. While not specifically endorsing these sites, it is useful to know that pertinent resources are available on the Internet.

Even with some knowledge about the law, we still have our issue about whether accessing the Internet for personal benefit at work is acceptable. Can you watch LeBron James and the Miami Heat do the "Harlem Shake" on YouTube from your workstation? A recently published current-events article linked off of Law.com included a review about not only viewing videos of the "Harlem Shake", but also issues of making such a video while at work, during work hours. There is currently a Federal Aviation Administration investigation underway for a "Harlem Shake" video that was recorded on an airplane in mid-flight. This particular situation is considered a serious breach of safety protocol.

Can an employee view workplace acceptable Internet sites during their lunch break to catch up on local news on the MiamiHerald.com or CNN.com? Can an employee check these sites at other times? What about during a mid-afternoon break? What about a commercial interpretation of the Pirate's Code from Pirates of the Caribbean that says "the code is more what you'd call 'guidelines' than actual rules."

Common Policies

Some common items in Internet Use Policies are:

What is covered and what is not;
Clear notice that all content that is created and accessed from an employer's computers is the property of the employer;
Whether outside websites can or should be accessed;
That the employer has the right to monitor/search computers and Internet use records of all employees;
That all employee access to the Internet is public use and there is no confidentiality of information;
What the penalties are is an employee is caught accessing Internet sites or information forbidden by the IUP.

Just as doctors, lawyers, and teachers are required to take continuing education courses to remain up-to-date with the latest medical advances, newest laws and court decisions, and school rules and policies along with new teaching tricks, it is important for employers and employees to review the workplace code of conduct, Internet Use Policy, and other relevant materials to make sure both the employer and employees understand what is expected of each individual.

If you have questions about your employment and internet usage, contact our employment lawyer for a consultation.

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Employment Contracts

Employee Expectation of Privacy

So, your teenager is applying for after school jobs at the local pizza parlor or fast food restaurant to make money to buy clothes or save for a car without relying on the "bank of Mom and Dad". Your teenager tries very hard to persuade you to let them get a job arguing how children worked on family farms and in factories during the industrial revolution, or more likely, because their friends' parents agreed to let them work. But it is important to point out that the U.S. federal government has imposed limits on what work a child can do according to age and how many hours a week. Overall, it is important for you to know that there are laws governing child labor at both the federal and state of Florida levels.

Federal Rules

The Fair Labor Standards Act (FLSA) contains the federal child labor law. The age categories are divided into Under Age 14, Ages 14 & 15, Ages 16 & 17, and Age 18.

Under Age 14
If a child is under the age of 14, they can perform in radio, television, movies, or theatrical productions. They can also deliver newspapers; work in a business owned by their parents; babysit; or perform minor chores around a private home, so long as they have parental permission. Federal law also allows children under age 14 to gather evergreens and make evergreen wreaths.

If the parents of a child under the age of 14 have a business, the child cannot work for the business if it involves mining or manufacturing. Under federal law, children are prohibited from working with explosives, using motor vehicles or power-driven machinery, excavating, or working on roofs. Children under 18 cannot make bricks, tiles, or related products; fight forest fires; work in the logging industry; or use radioactive materials. For those in Miami-Dade County, the good news is that there are few of those opportunities in the immediate neighborhood.

Ages 14 & 15
Children ages 14 and 15 can do the same jobs as those under 14, but they can also do computer programming, tutoring, work in retail stores, or run errands by foot, bicycle, or use buses or subways. While 14 and 15-year-olds can pull weeds and rake leaves as part of yard work, they are still prohibited from operating motorized equipment such as lawnmowers, weed-whackers, or leaf blowers. This age group can wash dishes and clean equipment in kitchens. They can also clean and prepare fruits and vegetables in kitchens only if they aren't working inside a freezer or meat cooler. Fifteen-year-olds can also serve as lifeguards at swimming pools and amusement parks too.

Even if a child works, federal law requires school-age children to attend school. Work hours are limited to after school on school days and during weekends. Hours are further broken down to on 3 hours per day on school days with a limit of 18 hours per week. Work hours can only be between 7 a.m. to 7 p.m. If school is on break, then 14 and 15-year-olds can work a standard 40-hour week.

Ages 16 & 17
When your teen hits the ages of 16 and 17, there are no federal limits on how many hours they can work. But they cannot work in any job that the Secretary of Labor has deemed hazardous. Dangerous jobs are listed above in the Under 14 section.

Age 18
Any and all limits on specific jobs or hours limits are removed once a child turns 18.

The U.S. Department of Labor has set up a Youth's Rules! Website to give teenagers more information on federal limits as well as what possible hazards might exist. If your teen, or you, has a problem with their after school job, then you should consider contacting one of our attorneys.

So, we just walked through the Federal rules. But honestly, what you care about is what is legal and acceptable in Florida, and Miami-Dade County. Well, the quick answer is that all of these rules apply at the state of Florida level and the Miami-Dade County level.

If you have questions, or are not sure your situation matches those described above, you can contact our employment lawyer in Miami for a consultation.

If you are feeling ill and unable to work, you can call in sick. If your child is ill and needs your care, you can use sick leave as well. What happens if you or a family member is sick for longer than the amount of sick leave you have accumulated? Then you can look to the Family Medical Leave Act (FMLA). This covers employees from Miami, Florida to Seattle, Washington and everywhere in between.

The Family Medical Leave Act was signed into law in 1993. This allows an employee to take unpaid time off for a serious medical condition. The FMLA allows the employee to take up to 12 weeks, or 480 hours, of unpaid leave annually. Either the employee or an employee's immediate family member can be sick. Immediate family members are spouses, offspring, or parents. FMLA leave can also be taken for the birth or adoption of a child. There is also a provision that allows an employee to take up to 26 weeks of leave during a 12-month period if the employee is caring for a service member with a serious injury or illness. The employee must be the service member's spouse, offspring, parent, or next of kin.

FMLA for Everyone?

Not quite. There are requirements for an employer as well as the employee. Employers are covered by the FMLA when:
It is a public agency, including the local, state, or federal governments;
A public or private elementary or secondary school; or
A private-sector employer with at least 50 employees.

For an employee to be eligible for FMLA leave, the employee must:
Work for a covered employer;
Has worked for the employer for at least 12 months; and
Works at a location where the employer has at least 50 employees within 75 miles.

In order to request FMLA leave, an employee must put in a request following the employer's usual practices. Employers commonly request 30 days advance notice if the need is foreseeable. If the need for leave is not foreseeable, the employee must give notice as soon as possible. The employer can require the employee to use all accrued medical and personal leave prior to using FMLA leave. If an employee requests FMLA leave, the employer can request certification from a health care provider of the need for the leave. The employer is also allowed to require a second or third medical opinion, but the employer must pay for such assessments. While on leave, the employer must maintain group health coverage for the employee, though the employer can require the employee to prepay their premiums or to continue premium payments while on leave.

When an employee returns from leave, he must be put back into his same position or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. If the employee leaves his job after the FMLA leave period, the employer can require the employee to pay back the employer's portion of the company health insurance premiums paid during the leave.

If you have questions about Family Medical Leave, contact an employment attorney in our firm today.

Related Links:

Special Leave Considerations for Military Members

Taking Time Off Work

The United States Government guarantees most working people a minimum wage. But in certain areas, the minimum wage does not cover everything needed for a person to live -- this is often referred to as a "living wage". There are some geographic areas that have laws requiring a living wage. Miami-Dade County (population of more than 2.5 million people) is an area with a living wage law to allow a full-time employee to be able to live off of the salary from a single job. Current activity in the Florida legislature may influence how Miami-Dade employers and employees focus on wages.

Minimum Wage
A minimum wage is the amount of money per hour that an employer is required to pay the lowest-paid employee. Does everyone get paid the same amount? Not quite. If an employee is paid hourly and receives benefits from the job, then the minimum wage can be less than that for an employee who does not receive benefits from the job. Benefits refer specifically to health insurance. But what if the employee has to contribute to that health insurance? Because the job is paying into the health plan, the employee is not paying the whole freight and receives the lower minimum wage amount. The federal law is commonly known as the Fair Labor Standards Act.

While the federal law is the absolute minimum an employee can be paid, individual states have the option to create their own minimum wage as long as it is higher than the federal minimum wage. Florida has its own minimum wage act.

What if you are a waiter/waitress/bartender/pizza delivery person/shampooer and make most of your money from tips? Then your wage isn't the same as the minimum wage. There is a minimum wage for those who receive tips, but with the expectation that the tips will make up the difference between the "tipped" wage and the minimum wage. See the blog post "The Trouble with Tipped Employees" from January 9, 2013 for a breakdown of how this wage process works.

Living Wage
What is a "living wage" as opposed to a "minimum wage"? Merriam-Webster defines a living wage as "a wage sufficient to provide the necessities and comforts essential to an acceptable standard of living." Miami-Dade County passed a living wage ordinance in 1999. This ordinance applies to all county and municipal workers, employees of contractors to the county and employees of county licensees. This living wage is higher than the Florida state minimum wage and requires employers to provide health insurance as well.

In high cost-of-living cities like Miami, the federal or Florida state minimum wage just can't provide for a person to cover the basic costs of living like housing, clothing, and food. And this doesn't include phone, TV, car, gas, or anything else.

In February, 2013, lawmakers in Tallahassee have introduced House Bill 655 to prevent localities from imposing any additional payment or benefit requirements on contractors. If this bill ultimately becomes law, it will invalidate the current Miami-Dade living wage law as it applies to all contractors. Proponents of HB 655 argue that it will bring uniformity to the state's economy. Opponents argue that lowering wages in a higher cost area like Miami-Dade hurt the state's economy by having more employees unable to pay their current bills. As of March 7, the bill passed the State Affairs Committee by a vote of 12-5. Next stop for this bill is a vote by the full Florida House. You can track the status of this proposed legislation HERE.

To the many disabled people nationwide, the Americans with Disabilities Act ("ADA" or "the Act") is a promise of access that allows them to live productive lives defined by what they can do rather than by what they cannot. To the employers covered by the ADA, it can be a source of confusion and one ripe with pitfalls for even the most well-meaning employers. Our Miami ADA law firm understands how complex the ADA can be and provides advice to employers on their duties and employees on their rights. While it is no substitute for specific legal advice, the following is a brief discussion of the act as it applies to employment matters.

What Is the ADA and What Employers Are Covered?
Title I is the portion of the ADA focused on the employment relationship. The original Act was signed into law in 1990 and it was amended in 2008, largely to clarify disputed issues and express disagreement with certain court rulings. The Act makes it illegal for private employers, government entities, labor unions, and employment agencies to discriminate against a qualified person with a disability in the employment arena. It applies to those employers with fifteen or more employees (note: state laws may apply to smaller employers).

Note: While this discussion focuses on Title I, other portions of the Act may apply to a particular employee in their relationship with customers and other individuals.

What is a Disability?
A wide-range of conditions can render someone an individual with a disability under the ADA. The primary definition of a disability is a physical or mental impairment which substantially limits at least one major life activity. Per the 2008 Amendments, the definition is read broadly to favor coverage. The Amendments also provide a list of major life activities including seeing, hearing, walking, standing, learning, communicating, and major bodily functions (ex. respiratory or circulatory functions). Except for ordinary glasses or contacts, impairment must be measured without regard for mitigating measures. For example, a person with a hearing impairment can qualify as an individual with a disability even if a hearing aid allows the person to hear as well as an average person.

An important note: Employers may not ask about disabilities during the interview process, but may ask if the person can perform the job duties with or without a reasonable accommodation. In general, the employee is responsible for notifying the employer of his/her need for an accommodation and employers are only held responsible for accommodating a disability of which they are aware.

What is a Qualified Person and What are Reasonable Accommodations?
The Act prohibits discrimination against a qualified person with a disability. A qualified person is defined as someone who can perform the job's essential functions with or without reasonable accommodation. Reasonable accommodations are changes provided by the employer to make it possible for the covered individual to have equal employment opportunities. Specific accommodations can include (but are not limited to) making currently used facilities readily accessible, restructuring/modifying jobs and work schedules (such as allowing time for medical appointments or a break for medication needs), and acquiring/modifying job-related equipment. The exact accommodation required is specific to the needs of the individual involved. Employers do not need to make accommodations that would cause the employer an undue hardship. An undue hardship is measured in light of the employer's size, resources, and other factors relating to the operation.

No general overview can replace individualized legal counsel, especially in the case of a fact-specific issue such as ADA coverage or compliance. Our Miami employment lawyer represents both employers and employees and can provide legal advice tailored to your specific needs as covered employer or as an individual with a disability. Call our office at (305) 358-1949 or contact us online to schedule a consultation.

Many local residents may not be familiar with the term, but "wage theft" is an important concept that may apply in situations where you are not treated properly by your employer. Believe it or not, our area (Miami-Dade County) was actually the first in the country to pass a wage theft ordinance. Since its passage, others have considered passing similar measure to protect employees. Feel free to click here to view the public page discussing the ordinance and its purpose.

According to the county website discussing the matter, the purpose o the law is to protect employees from underpayment or nonpayment, get rid of unscrupulous practices leading to unfair economic competition, and buffer public budgets which now are forced to subsidize violations of these rules. In short: the purpose is to ensure employers are fair and pay what is owed. The truth is that they fall short time and again.

So what does this ordinance require?

At a general level, the law demands that wages be paid within two week (14 days) of services rendered. There are exceptions to this rule if an alternative pay schedule was already established. But the basic idea is that an employer cannot wait an extended period of time before providing payment. In addition, as seems obvious, the employer must actually pay the full and fair amount. There are many cases of employees being shortchanged. Often, assuming that it would be too costly or stressful to fight it, they let it go.

That is unfortunate, because as our Miami employment attorney often explains to local clients, there are many legal tools available to hold employer accountable for their unfair conduct.

So what can be done?

As a general rule, it is important to speak with an experienced attorney to get advice tailored to your situation. But wage theft ordinances usually outline the basic process to ensure accountability. One good thing is that some of the complex an costly aspect of traditional claims in the civil justice system are streamlined or eliminated here (i.e. service is usually provided by the county). In general there is a one year max for recouping lost funds. In addition, a "demand letter" must be completed within two months of the date that the wages were due in Broward county--there is no similar requirement in Dade County. In all cases though, it is important to act in a timely fashion to secure your claim.

Beyond acting in an efficient way, it is also helpful to ensure you maintain proper documentation to prove your claim. While the exact process is slightly different depending on the ordinance, in all cases you will be required to provide the documentation to be assessed by those making decisions in the matter. Your employer will have an opportunity to asses the information as well and rebut if desired.

While the rules for these claims are a bit more streamlined than traditional civil lawsuits, they are not without their legal procedural requirements. Specific information must be made in demand letters, and employers have a set deadline to respond (usually referred to as "answering.") After this initial process a hearing is schedule to resolve the matter, where parties will present their sides and a decision is made. If the employee wins, then the employer may be required to pay two to three times the wages owed. This increased damage amount is to encourage employers form avoiding this process altogether and paying what is owed on time, every time.

Important: While the above process seems helpful there is one huge caveat--these counties prohibit lawsuits (i.e. the traditional way of using the civil justice system) for pursuing wages. This can be a huge downside, particularly when there are problems with the performance of the wage theft system. For this reason, it is absolutely critical to first talk with an attorney about these issues before making any decision on your own.

Chances are if you find a news story today discussing any employment law issue, it will be on one topic: privacy. In particular, there has been a boom in interest in privacy concerns as they relate to new technology and social media. We use computers for everything these days, for conference calls with other offices, internal messaging systems, and company email accounts. Employer monitoring of these activities is common, and many employees may be unfamiliar of the rules, rights, and obligations as it relates to these issues.

As an initial matter, most of this employer monitoring of of employee conduct using office services is allowed. However, that does not mean that employers can monitor you in every way imaginable while on duty or using company tools. It usually depends on the reasonable expectation of privacy. For example, locked office equipment, personal belongings, or quite conversations with co-workers might come with different privacy expectations when compared to something like company email.

The first question that is always asked these days related to internet and email use. The basic rule: employers can usually monitor activity while on work computer systems. For example, employers can control internet usage entirely while in the office, from blocking sites to tracking where you search online at any given moment. Along the same lines, if you send an email using work email system, then you cannot expect those communications to remain private. One small caveat here, however, relates to employers purposes. The employer must have a clear business reasons for monitoring emails. As a practical matter though, virtually all employers can likely come yp with some business reasons to keep an eye on these communications. The bottom line: Expect that your employers are viewing all emails. Never put anything in there that you would not want a co-worker or boss to read. Failure to abide by this rule is a common cause of employees being proven to have engaged in misconduct.

The same rules apply, in most cases, to offline communication. Employers can monitor work phone calls and even listen to voicemails in some cases. The best rule of thumb is to be cautious about all communication or work equipment or work time. Falling back on expectations of privacy at these times is a difficult prospect in subsequent legal cases. That is not to say that employers have absolutely no limits; there actually has been legislation passed guiding the conduct. Most notably, the Electronics Communications Privacy Act (ECPA) limits an employer's right to monitor telephone usage at work if the call is a personal one. Even then on a company phone, if the call is personal, the employer is not allowed to listen without consent.

Outside phones, emails, and the internet, when is employee privacy at issue?

While most don't immediately consider drug testing to fall under the rubric of privacy, it does. Many employers require employees to undergo drug testing, and it is reasonable to ask if there are limits on what an employer can demand an employee to do. In general, Florida law allows employers to drug test employees if the position is "safety sensitive" or a "special risk" is present. Yet, without reasonable suspicion, the testing cannot be demanded of a specific employee. Instead, a random and private process for the testing must be in place. Alleged violations of this conduct is very fact specific, so it is important to receive tailored legal help.

If you have any questions regarding these privacy issues, contact the Law Offices of Santiago J. Padilla, P.A. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up an initial consultation, you can contact us through the Internet or call us at (305) 358-1949.

It is hard to believe, but it has been fifty years sine the Federal Equal Pay Act of 1963. That is the law which required equal pay for men and women doing the same jobs in the workplace. However, many believe that the problem is still not resolved. As a result, Congress is looking into additional legislation to further close what many believe is a pay gap between men and women. The measure is undoubtedly important to all of those who are concerned about fair employment in all situations.

The Motivation
Many advocates have been calling for changes for years as a result of discrepancies between genders on pay rate details. For example, a study from the American Association of University Women studied rates for people one year after college, who did not have families or children. The researchers found that "occupation, hours worked and economic sector help us understand the pay gap, but these differences do not fully explain it." Ultimately, they found that sex-based discrimination influences salary, and argued that the proper way to address the unequal pay is through better pay policies. The study indicated that a man and a woman, who had the same college major, career, and work hours have a 7 percent pay gap on average, even after figuring in other possible causes.

Fixing the Problem
Can anything be done to fix the inequity? Some legislators think so, which is the impetus for the Paycheck Fairness Act. Co-sponsored by Senator Tom Udall, of New Mexico, and Senator Barbara Mikulski, of Maryland, the bill is currently under consideration by the U.S. House of Representatives.

The Act's main purpose is to increase enforcement of existing equal-pay laws. In other words, advocates are mostly concerned not with guarantees of equal pay but use of current law to make that guarantee a reality. But that is not the only component of the bill. In addition the act includes a call to create a grant program for young girls and women to help with negotiation. Similarly a program would be created to research pay disparity issues generally.

Fixing the Loopholes
As mentioned, the main thrust of the Paycheck Fairness Act is to fix problems with enforcement of existing laws. How would it do that? For one thing, the proposed law would prevent employers from suing or punishing employees for sharing salary information. As is obvious, if employees compare salaries, then revealing of disparities are far more likely to occur. That doesn't mean that the disparity is automatically based on discrimination, but knowing of its existence is the first step.

In addition, the law calls for limiting employer affirmative defenses. Broad excuses will no long suffice. It will hopefully make it essential for employers to be required to show that the difference is actually caused by something other than sex. The disparity must be based on job performance and consistent with business necessity.

For help understanding these issues as they relate to your situation in the Miami area, please contact the employment lawyer at our firm for tailored advice.