photo of HR Policies and ProceduresAs the nation begins the slow recovery from the COVID pandemic, businesses will start to return to some level of “normalcy.” But that normalcy will be in a vastly different governmental environment. During the Trump years, businesses benefited from the administration’s pro-business attitude. The Biden administration has made it clear it intends to adopt a pro-employee, pro-union stance. In its first 100 days, the administration has begun to set the pieces for its long-term goals.

What impact will the Equality Act, if passed, have on employers?

One of the more visible areas of change is coming in the civil rights arena. President Biden fired the Equal Employment Opportunity Commission’s general counsel in March when she refused to resign. The EEOC general counsel, who sets the tone for the number and types of cases the Commission pursues, had been relatively modest in her enforcement efforts during the Trump administration. That should be changing. One area that will likely be a red flag issue with the Biden-era EEOC is LGBTQ+ rights.Continue Reading Employers need to pay attention to sexual orientation and gender identity protection policies

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.

New Protections

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.Continue Reading Supreme Court Holds that Civil Rights Law Covers LGBT Employees

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

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, we 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. We 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

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We are so excited to announce that registration is now open for the 2016 HR Law & Solutions Seminar. Now in its 24th year, this full-day seminar is a fantastic opportunity for both new and experience HR professionals and other business executives to learn about important employment laws, network with their peers, and, of

IMG_3428We want to send a special THANK YOU to the more than 300 of you who attended HR Law & Solutions last week. It is always such a pleasure for all of us – it feels like an annual reunion! Congratulations to all of our raffle winners, and especially to our new HR Law & Solutions Hall of Fame recipients (pictured left to right): Patti Reigle (of Digestive Health Physicians), Fran Barker (of Physicians’ Primary Care), and Kim Hopkins (of McGregor Baptist Church.

As we mentioned during our What Would You Do? session, the National Labor Relations Board (“NLRB”) recently issued a report on employer handbook policies. It is…interesting, to say the least. The report gives examples of (supposedly) lawful and unlawful handbook policies on issues like confidentiality, conduct toward supervisors and fellow employees, conflicts of interest, and employees leaving work. Generally, “lawful” vs. “unlawful” turns on whether the NLRB thinks the particular policy infringes upon employees’ Section 7 right to engage in concerted activity regarding terms, conditions, or privileges of employment.Continue Reading Seminar Wrap-Up and NLRB Report on Handbook Policies

Time to test your Employment Law IQ again! Consider this scenario:employee handbook

Mike R. Clean hired Tommy as a night-time janitor at Squeak E Clean, Inc. During the first month of his employment, Tommy was a super star, but his performance went downhill quickly after that. Mike tried to coach Tommy, but Tommy just could not get it together. At the end of Tommy’s second month at Squeak E Clean, Mike terminated Tommy’s employment. A couple of weeks later, Mike was shocked when he found out Tommy would not only get unemployment, but it was going to be charged to Squeak E Clean’s account.

Why are Tommy’s unemployment benefits being charged to Squeak E Clean’s account?

A.  Because Tommy was not terminated for gross misconduct.

B.  Because Squeak E. Clean did not notify Tommy of the probationary period within the first 7 days of his employment.

C.  Because Mike did not write Tommy up before he was terminated.

D.  None of the above.


Continue Reading Employment Law IQ: Unemployment Benefits and Handbook Headaches