Regardless of who you supported in the recent Presidential election, one thing both candidates agreed on was that the Fair Labor Standards Act, or FLSA, is not going away. The FLSA is a Depression-era law that has seen relatively little change in nearly 90 years. It created a federal minimum wage and required that most employees be paid overtime of 1.5 times their regular hourly rate when an employee works more than 40 hours in a workweek. So why, after so many years, do employers regularly trip up on this law, sometimes costing them in the hundreds of thousands of dollars?
From complex labor and employment counseling and litigation to general business matters, Scott has been representing the interests of entrepreneurs, public entities, and businesses of all sizes throughout the United States, including Florida and Georgia, for nearly 25 years.
More specifically, Scott has extensive experience in all aspects of employment law, including Title VII, ADA, ADEA, and Section 1983 discrimination, harassment, and retaliation matters, FMLA leaves issues, and FLSA and state law wage situations. He also assists his clients in whistleblower claims and non-compete, non-solicitation, trade secret, and contract disputes. With regard to general corporate matters, he prepares employment agreements, operating and shareholder agreements, restrictive covenant (non-compete, non-solicitation, confidentiality) agreements, and business contracts.
Scott also brings his expertise as a Florida Supreme Court Certified Circuit Civil Mediator to facilitate a resolution as an alternative to lengthy and expensive litigation. As a member of the Executive Council of the Florida Bar's Labor and Employment Section, Scott is extremely active in helping formulate and implement legal policy on both the state and local level. He is admitted to practice in all state and federal courts in Florida and Georgia, including U.S. District Courts for the Southern and Middle Districts of Florida.
Scott has been recognized as a Florida Super Lawyer in labor and employment law. Previously, he was recognized by Atlanta Super Lawyers as a Rising Star in labor and employment law. While attending law school, Scott was elected Editor-in-Chief of the Florida Journal of International Law and was awarded the President's Award for outstanding service to the University. He now serves on the College of Law's Alumni Council.
Scott has two children, Caroline and Laura. They both attended Fort Myers High School’s IB program, and Caroline is now attending Scott’s alma mater, Dartmouth. Scott is married to Kristalyn Loson Atwood, who is also an attorney. When not working, Scott enjoys spending time with his family, traveling, and watching New England sports.
In one of the most significant Supreme Court cases for Florida employers in many years, the U.S. Supreme Court held by a 6-3 margin that Title VII of the Civil Rights Act of 1964 (commonly known as “Title VII”) protects gay and transgender individuals from discrimination in the workplace. In the anxiously anticipated decision, which is a consolidation of three cases, the Court held in Bostock v. Clayton County, Georgia, that Title VII’s prohibition against discrimination on the basis of sex includes discrimination because of an individual’s sexual orientation and gender identity. While the decision only addresses traditional claims of discrimination (plaintiffs were all fired from their jobs), employers should expect that the ruling will extend to claims of harassment as well. If you are a Florida employer, this decision likely means that you need to update, review, and discuss your employment policies with your employees.
Until recently, the lower courts that had ruled on the issue routinely held that Title VII’s protections did not extend to discrimination against individuals who had adverse actions taken against them merely because they were gay or transgender. In fact, one of the consolidated cases came from the Eleventh Circuit, which had cited a long-standing lower court precedent in rejecting the claim of a gay male who was fired from his job in Georgia solely because his employer learned that he was gay. Florida is part of the Eleventh Circuit, and so gays were not protected under Title VII’s coverage in Florida until today.
On March 24, 2020, the Department of Labor (“DOL”) issued the first guidance related to the new Families First Coronavirus Response Act. It answered a few questions of general interest, but a lot of questions that relate to small businesses (by that, I’m talking about businesses with under 50 employees) are still up in the air. The DOL further indicated that we should not hold our breath for any regulations before the enactment date. Instead, regulations are promised sometime in April.
New effective date
The biggest surprise was the DOL announcing that the law is now going to become effective on April 1 rather than April 2. Taking advantage of some flexible language in the Act, the DOL obviously decided that it made the most sense to make a pay-related law effective on the first day of most employers’ pay periods, rather than on the second day, which was likely to create payroll nightmares. So, April 1 it is.
Benefits are not retroactive
Grab a cup of coffee, login in and join me for a complimentary webinar on Monday morning, March 23, at 10:00 a.m., as I share information on:
- Families First Coronavirus Response Act
- Emergency Paid
It took a little longer than expected, but the Families First Coronavirus Response Act (the “Act”) is now law. Initially expected to go before the Senate on Monday, the House bill met with much industry resistance. The House then made some “minor technical corrections” (if 75 pages of corrections is minor) on Monday before sending it to the Senate on Tuesday. On Wednesday, March 18, the Senate approved the Act 90-8 (two Senators, one of whom was Sen. Rick Scott, were missing from the vote — self-quarantined due to possible exposure) and the President signed the Act into law a few hours later.
The final Act differs quite a bit from the initial House bill. Below is a summary of the major provisions that apply to employers.
March 20, 2020 Update
On March 20, 2020, the U.S. Treasury Department, IRS, and the U.S. Department of Labor officially announced that small and midsize employers can begin taking advantage of the two new refundable payroll tax credits immediately. This relief would allow these employers to be fully reimbursed, dollar-for-dollar for the cost of providing Coronavirus-related leave to their employees.
The Act becomes effective April 2, 15 days from the date it was signed into law. There are two subsets of the Act:
- The Emergency Paid Sick Leave Act; and
- The Emergency Family and Medical Leave Expansion Act.
On Monday afternoon, March 16, the Senate will consider the House’s emergency bill to temporarily expand the Family Medical Leave Act (FMLA). If passed — and the general consensus is that it will pass with minor modifications on March 16, and be signed into law the same day – it will significantly expand FMLA coverage for the short term.
Please remember this is only a bill, not a law yet. We will update you when the President actually signs the bill into law (likely tonight), and let you know the final provisions of the law.
Sometimes, what seems obvious in employment law, actually isn’t. Last week, a Florida federal jury found in favor of a law firm in its former paralegal’s overtime lawsuit against it. The former paralegal, who was a title agent performing real estate transactional work, alleged that she was improperly denied overtime under the Fair Labor Standards…
New DOL Rule Increases Salary Basis Threshold
Employers may need to give some exempt employees a raise come 2020. This week, the federal Department of Labor (“DOL”) released its new Final Rule on the minimum salary an employer needs to pay an exempt employee in order to satisfy the “salary basis” test.
Currently, an employer must pay an exempt employee a salary of at least $455 per week ($23,660 annually). Effective January 1, 2020, that level increases to $684 per week ($35,568 annually). That’s nearly a $12,000 increase, which would be about a 50% raise for an exempt employee who current makes the minimum threshold salary.
The new Rule, however, pales in comparison to what the DOL proposed, and was about to implement in 2016, before a court put a hold on that Rule (the DOL ultimately withdrew the Rule). That Rule sought to more than double the current threshold, and increase the minimum salary to $47,476.
Critics (mostly on the employer side) argued that the rationale used to justify such a significant jump in the salary basis was flawed, and that its effect would be to hurt businesses and employees alike. The new Rule took most of those concerns into account, inasmuch as there is much more consensus among business and employee advocates as to the propriety of the new Rule. To that end, although there is certainly a possibility that a court could hold up implementation of the Rule, there is less chance that an advocacy group will seek to stop this Rule.