COVID LawIn response to the U.S. Supreme Court’s recent ruling that stopped OSHA from enforcing its mandatory COVID vaccination Rule for large employers, OSHA announced on January 25, 2022, that it is withdrawing the Rule. OSHA introduced the Rule as an emergency temporary rule in October 2021. The Rule applied to all employers nationwide with 100 or more employees, with only extremely limited exceptions. It was set to go into effect in December 2021, but a federal judge issued a nationwide injunction prohibiting OSHA from implementing the Emergency Rule.

After procedural moves resulted in the Sixth Circuit Court of Appeals being assigned the case, a three-judge panel in late December 2021 lifted the injunction. That opened the door for OSHA to begin implementation of the Rule in early January 2022, with enforcement to begin in February 2022.

Instead, the U.S. Supreme Court heard the matter on an expedited basis, taking oral arguments on January 7, 2022. The following week, the Court reinstated the injunction and blocked OSHA from implementing the Rule while the matter was being decided on its merits in the courts. Taking its cue from the Supreme Court’s written decision reinstating the injunction, OSHA apparently concluded that its argument was unlikely to prevail before the lower courts. Hence the withdrawal of the Rule, effective Wednesday, January 26.

What’s next

Continue Reading OSHA COVID Rule for Large Employers Withdrawn

Henderson Franklin’s legal team returns to Sanibel Harbour Resort & Spa on Friday, February 25, 2022 with a new twist. The main room will offer the firm’s most popular workshop, HR Law & Solutions.

New for 2022, attendees will have the option to attend breakout sessions focusing on niche corporate matters and contracts, family businesses, startups and how to make informed real estate decisions. Click here to download the brochure.

Topics and speakers

General Session #1, Lingering Effects of COVID on Florida Employers, presented by Scott Atwood, Esq.

From business shutdowns and PPP loans to vaccinations, COVID has presented unique challenges to Florida businesses. Henderson Franklin’s employment group chair Scott Atwood will address the multi-faceted employment issues that employers may face, including: current obligations over masks and mandatory vaccinations; how to deal with possible long-term disability claims and leave issues arising from COVID; increased union activity; and the pros and cons of a remote/hybrid workforce.

General Session #2, Saving a Buck can Cost you a Million. Update on Recent Employment Cases and Mistakes that Employers Keep Making, presented by Scott Atwood, Esq. and Robert Shearman, Esq.

Continue Reading Registration is Open: Southwest Florida Legal Summit

You’re a business manager, or maybe even a business owner. You work hard: your work day rarely runs from only 9 to 5; your work week usually runs longer than Monday through Friday. The last thing you need is a subpoena: who wants to get dragged into court for someone else’s dispute?

But the business gods have different plans . . . .

Your office manager calls you to say a sheriff’s deputy just served your company with a subpoena and wants to do what needs to be done. As a savvy business manager or owner, you already know that a subpoena is a court paper requiring the recipient to appear or produce information, or both, so you’re already in a position to effectively address this situation.

First Things First

First, you thank your office manager for notifying you immediately (and congratulate yourself for hiring a stellar professional and providing good training). Second, you refer to your Subpoena Policy, which is your written game plan for this situation.Continue Reading Our Office Manager Received A Subpoena—What Should My Company Do Now?

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

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

social media iconsApple Blue Ivy Moonbeam, a Generation X HR Director who considers herself super savvy when it came to all things Interweb, drafted a social media policy to include in FacePlace, Inc.’s employee handbook. FacePlace is a non-union workplace with over 300 employees, most of whom work from various “virtual” offices away from FacePlace’s home office. Convinced she created the best social media policy ever, Apple submitted the policy to the NLRB for review.

Which of the following policies do you think the NLRB found lawful?

A. You should never share confidential information with a team member unless the person has a need to know the information to perform their job.

B. Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.

C. Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between team workers online, even if it is done after hours, from your home network.

D. The NLRB found all three unlawful.Continue Reading Employment Law IQ: Social Media Policies and Handbook Headaches

National_Labor_Relations_Board_logo_-_colorContinuing in our series of Employment Law IQ, what would you do?

Scenario:  Valerie recently graduated from FGCU and got her first job, a position as HR Director for Hire You Too, a local, non-union staffing agency. Though Hire You Too has been in business for a number of years, Valerie is the company’s first dedicated HR employee. Eager to establish herself as an important member of the Hire You Too team, the first thing Valerie does is review Hire You Too’s Employee Handbook. While most of the Handbook looks good, Valerie wants to revise the Acknowledgement, because she remembers from her “Labor 101 Class” that the NLRB has cracked down on at will employment disclaimers.

Which of the following statements should Valerie avoid for the Acknowledgement?

A. I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.

B. The relationship between you and Hire You Too is employment at will. This means that your employment can be terminated at any time for any reason, with or without cause, by you or Hire You Too.

C. Employment with Hire You Too is employment at will. Only the CEO of Hire You Too has the authority to alter the at will employment relationship, and then only in writing.

D. Valerie can choose any one of the three, since Hire You Too is a non-union workplace and does not have to worry about the NLRA.Continue Reading Employment Law IQ: At Will Employment Disclaimers – A Violation of NLRB?

Employee handbooks…every employer should have one, but does yours include policies that are unlawful? Test your employment law IQ and let us know what would you do.

Scenario: Dickie V., the HR Director for Bracketology Secrets, Inc., has asked Bracketology’s employment law counsel, Billy B. Ball, to review Bracketology’s Employee Handbook, which was last revised in 2007. Since then, Bracketology has grown to25 employees, all located at one central location. When Dickie V. receives Ball’s written analysis of Bracketology’s Employee Handbook, he is shocked to see so many suggested revisions.

Which of the following policies do you think Billy B. Ball left unrevised?

A.  Bracketology Secrets, Inc. compensates its employees on a merit-based system. To avoid creating hostility or other issues in the workplace, Bracketology employees are not permitted to discuss their individual compensation packages with other Bracketology employees.

B.  Employee personnel files are property of Bracketology Secrets, Inc., and will not be released to any employee or third party without a subpoena or similar court order.

C.  Bracketology Secrets, Inc. desires to keep all of its employees, customers, vendors, and the general public safe on its premises. As such, any employee who brings a weapon to Bracketology premises, whether on their person, in a bag, or in a vehicle, may be subject to immediate termination.

D.  All three policies are acceptable as written.


Continue Reading Employment Law IQ: Outdated and Unlawful Policies in Employee Handbooks – What Would You Do?

In our last blog post on improving your workplace documentation practices, we discussed best practices for effective documentation. This post addresses when to prepare documentation of a workplace event, observation or communication.

To be effective, documentation needs to be accurate, objective, specific, and clear. But, it also needs to be TIMELY! In this fast

In our last blog post on improving your workplace documentation practices, we discussed the type of workplace events and communications that should be documented by employers. This post provides practical tips on how to document.

Although sufficient workplace documentation is crucial, poor workplace documentation can actually hurt an employer and weaken your attorney’s ability