Henderson, Franklin, Starnes & Holt, P.A.

Dan Schwartz of the Connecticut Employment Law blog posted yesterday about an interesting medical marijuana case in Connecticut. For the first time, a Connecticut court ruled that an employer could not refuse to hire an applicant simply because she was a medical marijuana user, despite the employer’s drug-free workplace program. This applicant, who used medical marijuana for PTSD, had her offer revoked after she tested positive for marijuana on the pre-employment drug screen. She then sued for discrimination. In ruling for the applicant, the court focused on the anti-discrimination provision in Connecticut’s medical marijuana law:

[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

Conn. Gen. Stat. § 21a-408p(b)(3) (emphasis added).

Does this decision have any impact on Florida employers?

Continue Reading Connecticut Court Finds Employer Discriminated for Refusing to Hire Medical Marijuana User: What Does This Mean for Florida Employers?

The Department of Labor just issued updated FMLA forms, good through August 31, 2021. No more using “expired” forms!  For anyone who was expecting “updated” to mean changed or improved…well, we are sorry to disappoint you – the only thing that was updated was the date! The forms are otherwise identical.

Continue Reading Department of Labor Releases Updated FMLA Forms

Property Right

Can employers arbitrarily terminate a person’s employment in Florida? Florida is an “at will” state, meaning employers generally can terminate an employee for any lawful reason, just as employees may quit for any reason. Certain public employees, however, enjoy a property interest/right to their employment and may be terminated only for cause.

Both the United States and the Florida Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. In the employment context, this guarantee of due process functions to protect certain public employees from being deprived of a protected property interest in their employment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Indeed, in Roth, the United States Supreme Court held that, where public employees have a property right or property interest in their continued employment, the employer may not terminate the employee without certain due process protections.

Continue Reading Property Rights in Continued Employment for Public Employees: The Basics

We are just TWO WEEKS away from the 26th Annual HR Law & Solutions seminar – where does time go?!  Our HF team is working hard on final preparations, and we are excited to see that so many of our readers have already registered. If you haven’t registered, there is still time! You can register online now by clicking here or by contacting Gail Lamarche at 239-344-1186 or gail.lamarche@henlaw.com.

For those of you who will be attending, we need your help to make the Employment Law Potpourri session as helpful to our audience as possible. During that session, we will go through a general update on some of the employment/HR-related hot topics that we did not otherwise address earlier in the day, then we will answer questions from the audience. If you would prefer not to waive your hand and ask your question in front of your 350-closest HR friends, please email them to me before the seminar. We will keep your name and company confidential, but we will make sure to address the question in that session. Time permitting, we will also take questions from the floor, so don’t be shy! We will take the written questions first, though, so if you have a burning question you’d like us to address, please do send it my way. You can reach me at suzanne.boy@henlaw.com.

If you are like me, you have been focused on all things weather-related the last day or two. In Southwest Florida, we are firmly stuck in the “cone of uncertainty” in the path of Hurricane Irma, a storm the weather-folks keep calling “potentially catastrophic.”  There were even rumors of a Jim Cantore sighting in Fort Myers yesterday…and anyone who has lived in Florida for a hurricane season or two knows what that means!

I know many of you are working on storm preparations, which, with a storm of this magnitude, naturally means you are faced with potential workplace closures. If the number of questions I received yesterday is any indication, there is a lot of uncertainty about when and how to pay employees if your business closes before and/or after the storm.

Impact of Workplace Closure on Payroll

Continue Reading Cone of Uncertainty: Wage/Hour Concerns in the Path of Hurricane Irma

Can you believe it’s been two months since we hosted the 25th Anniversary HR Law & Solutions seminar? Where does the time go?! Thank you so much to the nearly 400 people who attended – it was a record-breaking day! As usual, our Henderson Franklin team had a blast getting to catch up with so many familiar faces at what truly feels like a big family reunion. We loved seeing many new faces as well!

HR Law Room

We had a full day of speakers on various legal topics, a delicious lunch, and great networking opportunities. At the end of the day, we had a celebration for our 25th Anniversary that included cocktails and an AMAZING cupcake tower from our favorite chocolatier Norman Love Confections.

HR Law Cupcakes

Additionally, we inducted Nathalie Galvan, Lucille Ford (not pictured), Cindy Kelberer, Judy Marcucci, and Joanne Lashey in our HR Law & Solutions Hall of Fame (see photo, below). Additional photos from the day can be found on Henderson Franklin’s Facebook page.

HR Law HOF

Special thanks goes to our amazing major sponsors, Lykes Insurance and Gravity Benefits. Our seminar would not be the same without our long-standing partnership with Lunch Sponsor Lykes, and we were proud to welcome Gravity back for the second time, this year as our 25th Anniversary Celebration Sponsor. We look forward to partnering with both groups for years to come.

I also want thank EEOC Regional Attorney Robert Weisberg and plaintiff’s attorney Ben Yormak for braving the HR/employer-filled crowd to offer great advice and tips for employers to avoid ending up on the wrong side of a lawsuit! Kudos to the crowd for not peppering these “bad” guys with anything but great questions (I warned them to watch out for flying food!). Over the next several weeks here on the blog, I will be answering some of the pre-submitted questions we were not able to address on the panel. As always, if you have additional questions you’d like me to tackle in a blog post, feel free to reach out to me at any time.

On behalf of our entire employment law team, thank you all so much for making our 25th Anniversary so wonderful. It truly is such an incredible day, and one we all look forward to every year.  We couldn’t do it without your support year after year.  Now, here’s to the next 25!

I can’t tell you how many times I’ve been asked in the last few weeks:  is there any chance the new overtime rule will go away or at least be postponed to sometime after December 1?  Well, apparently the answer is…

YES!  Yes.  Yes.  The answer — much to my surprise — is YES, the overtime change is NOT happening December 1.

A federal court in Texas just entered a nationwide injunction, enjoining the Department of Labor’s Final Rule, which was set to make sweeping changes to the white collar exemptions beginning December 1.  Yes, nationwide.  Injunction.  December 1 change, done.  Gone.  If you want to read the opinion, click Nevada v DOL Injunction.

So what does this mean for employers?  For employees?  It means there is no change happening December 1.  For now, the salary level remains at $455/week, or $23,660/year.  Will it happen someday?  Who knows.  The likelihood of it happening under a Republican White House, Senate, and House is, in my opinion, quite slim (at least in its current form).  Once we have had a chance to digest the decision and its effects, we will be back with more information.

I’m not sure what to say right now other than WOW.

addict-1032371_1280Editor’s Note:  At the time of publishing, there was a typographical error in the title of “Wedding.” We apologize for any confusion.

Amendment 2 has passed – it’s no longer a pipedream (no more puns, I promise). So now what for employers? Will it gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use? There are sure to be other questions and issues arise, some of which may take court cases to fully answer, but let’s take a look at what we know:

  • A Constitutional Amendment takes effect the first Tuesday after the first Monday in January. That would be an effective date of January 3, 2017;
  • The Florida Department of Health will then have six months to pass implementing regulations;
  • The Department must begin issuing patient and caregiver identification cards, and registering MMTC’s (Medical Marijuana Treatment Centers) a/k/a/ “dispensaries”, within nine months from that effective date.

While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law. Consider these facts:

  • The Amendment specifically states that it shall not require accommodation in a place of employment.
  • It specifically states that it does not purport to give immunity under federal law.

Why are these facts important?

Continue Reading Weeding Out Workplace Impacts of Medical Marijuana Legalization

Last week, the Defense of Trade Secrets Act (“DTSA”) was signed into law. The DTSA creates a federal legal scheme for the protection of trade secrets. Previously, protection of this form of intellectual property was solely a matter of state law, unlike patent, trademark and copyright, which have always been matters of federal law. The DTSA has a number of unique provisions, one of which immediately impacts employers who use confidentiality agreements with their employees. My colleague Mark Nieds and I offer the following summary of this new law.

Whistleblower Protection

Due to concerns over the impact that confidentiality agreements might have on employees who might otherwise report their employer’s wrongdoing to the government, an amendment was tacked on to the DTSA to provide civil and criminal immunity to whistleblowers under state and federal law for disclosing confidential or trade secret information to the government as part of whistleblowing activity.

Continue Reading Why Employers Need to Review Employment and Confidentiality Agreements in Light of the Newly-Enacted Defense of Trade Secrets Act

The moment we have all been waiting for (dreading?) has arrived — the Department of Labor issued its “Overtime” Final Rule.  The details are available on the DOL’s website, with the “official” Final Rule to be published in the Federal Regulations tomorrow.

As anyone who follows HR or employment law knows, this Final Rule has been highly anticipated — not to mention hotly debated — due to what is essentially a complete overhaul of the salary basis portion of executive, administrative, and professional overtime exemptions.  We now know:

  • The new minimum salary basis is $913/week or $47,476/annually.
  • The highly compensated employee salary basis jumps to $134,004/annually.
  • The salary basis will be “automatically” updated every three years, beginning January 1, 2020.
  • Employers may now use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the salary basis.
  • Perhaps most importantly, the effective date of the Final Rule is December 1, 2016.

To me, what stands out the most is the effective date — it gives employers much more time to adopt the new regulations than most people anticipated (some suspected it would be as few as 30 days).  So, that’s good news for the thousands of employers who will be impacted by these changes.  Also notable? The DOL did not make any changes to the duties test for any of the exemptions.

Once we have a chance to fully digest the Final Rule, we will be back with additional updates.   In the meantime, check out the DOL’s Questions and Answers section and Fact Sheet for additional information.  You can also comment on this post or email me directly if you have questions.  Stay tuned!