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:

  1. The Emergency Paid Sick Leave Act; and
  2. The Emergency Family and Medical Leave Expansion Act.

Continue Reading President Signs Emergency Coronavirus (COVID-19) Employment Laws

If you are an employer wondering what’s going to happen as a result of the coronavirus, be prepared for some potentially big changes.

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.

Continue Reading Employers – Get Ready for Emergency Coronavirus Employment Laws

In light of the developing situation with the coronavirus (COVID-19), we have decided to postpone the 28th Annual HR Law & Solutions, originally scheduled to take place on Thursday, March 26, 2020.

We believe this is a prudent decision to keep our friends, clients, and colleagues safe and healthy. The program will be rescheduled to Thursday, September 10, 2020, and will take place at the Sanibel Harbour Marriott Resort & Spa with all of the same speakers and agenda. Click here to download the seminar brochure. We will, of course, update the agenda with any additional cases/topics that arise in the interim.

Registered Attendees

If you are currently registered for the seminar, your registration (and payment) will be automatically carried over to the new date of September 10. If you cannot make the new date, please let me know as soon as possible.

COVID-19 Resources

There are numerous resources available to help employers in numerous industries, including:

If you have any questions or concerns or need to change your registration, please email me at gail.lamarche@henlaw.com or call 239-344-1186.

If you should have any HR or employment law questions concerning the impact of COVID-19 on your business, please feel free to contact Scott Atwood, Chair of the firm’s Employment Law Group at scott.atwood@henlaw.com.

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 Act. The employer, a small law firm, alleged that she was exempt from overtime based on the FLSA’s administrative exemption. Under this exemption, an employee who is paid a certain minimum salary, whose primary duty is to perform office work directly related to management or general business operations,  and who exercises “independent discretion and judgment” in the performance of work duties is not entitled to overtime.

FLSA’s Independent Discretion and Judgment Test

At issue was the “independent discretion and judgment” part of the test. After listening to the evidence about the specific job duties the paralegal performed, the jury concluded that the paralegal did exercise independent discretion and judgment, and found her exempt from overtime.

This jury finding is significant because standard wisdom in the employment world, based on the Department of Labor opinions and case law, has been that paralegals are generally considered non-exempt employees entitled to overtime.  What this case demonstrates is that actual job duties, rather than job titles, are what is most important in analyzing entitlement to exemptions under the FLSA. So, just calling your receptionist the “front office supervisor” is not going to suddenly transform that person into an employee exempt from overtime.

HR Law & Solutions Seminar

Please join us at our 28th Annual HR Law & Solution seminar on March 26 at Sanibel Harbour Resort, where we will discuss the tricky area of FLSA exemptions, in addition to a variety of other practical subjects, including:

  • A Day in the Life: Practical Tips for Today’s Employers. Katherine Cook and Sara Qureshi will join me to share pointers and updates on relevant case law, to help find solutions to daily challenges
  • 2020 Litigation Trends and EEOC Updates. Robert Shearman will be joined by Kyle Dudek, and guest panelists Robert Weisberg (Regional Attorney for the Miami District Office of the U.S. Equal Employment Opportunity Commission) and Benjamin Yormak (Florida Bar Board Certified Employment Lawyer) who will discuss litigation trends, recent case law and issues employers should expect in 2020 — not only from a management viewpoint but also from the perspective of the Equal Opportunity Employment Commission and from the plaintiff’s bar.
  • Preparing Today’s Employer for 2020 Workers’ Compensation Claims. David Roos, Spencer Shaw, Russell Whittle, and guest speaker Anna Evans (BKS-Partners) will share common defenses, recent case law and real-world strategies to minimize risk and exposure so employers can be fully prepared to defend claims at every stage.
  • Soar to Success. The keynote speaker is the former United States Army Black Hawk pilot Elizabeth McCormick. She will share professional and personal development secrets for success and the key to boosting your confidence and effectiveness in and outside the workplace. Elizabeth will also share prioritization and delegation strategies so you can soar to a higher level of advancement by helping others take the lead. She will also be available for pictures, autographs and book signings at the conclusion of the event.

Click here to download the seminar brochure.

Click here to register online.

The cost is $65 per person and includes a continental breakfast, plated lunch, valet parking and seminar materials.

Continuing Education

The 28th Annual HR Law & Solutions seminar is approved by SHRM for 4.25 PDC and by HRCI for 4.25 (HR) General continuing education credits.

The course has also been approved by The Florida Bar for 5.0 General CLE or 5.0 Labor and Employment Law Certification Credits.

Sponsors

We are so grateful for the support of our sponsors:

If you have any questions you would like the presenters to address, you may email them ahead of time to Gail Lamarche, the firm’s Director of Marketing and Business Development at gail.lamarche@henlaw.com.

We hope to see you soon.

There is a significant increase in businesses receiving letters from the Ogden, Utah, office of the Internal Revenue Service (the “IRS”). Whether you are a business owner, member of the c-suite or HR professional, this notice is not a scam and should be taken seriously.

Below is a brief overview to help address this letter and the potential significant penalties.

Typically, the letter states the following:

“Dear [Employer],

We have made a preliminary calculation of the Employer Shared Responsibility Payment (ESRP) that you owe.

Proposed ESRP                    $X,XXX,XXX.XXX …”

When you look at the notice and realize that the amount of the proposed ESRP quite high, questions of “how” and “why” begin to formulate in the midst of unleveled anxiety. In our experience, we have found that the proposed ESRP penalties are a result of filing incorrect or incomplete Form 1094-C (“Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns”) and/or Form 1095-C (“Employer-Provided Health Insurance Offer and Coverage”).

ESRP Summary Table – Minimum Essential Coverage

Continue Reading Addressing Employer Shared Responsibility Payment Penalties under the Affordable Care Act

Henderson Franklin’s Employment Law and Workers’ Compensation teams invite business owners, HR professionals, in-house counsel and those wanting to stay up-to-date on issues impacting the workplace to attend the 28th Annual HR Law & Solutions Seminar on Thursday, March 26, 2020, at the Marriott Sanibel Harbour Resort & Spa in Fort Myers, Florida. For more details, please click here to view or download the seminar brochure.

The day will kick-off with registration and a continental breakfast at 7:15 a.m. sponsored by Sanibel Captiva Community Bank. After the morning session, attendees will enjoy a plated lunch, sponsored by BKS-Partners, and conclude around 3:00 pm after an incredible inspiring session delivered by former US Black Hawk Helicopter Pilot, Elizabeth McCormick, sponsored by Contemporary Business Resources. Topics and speakers include:

A Day in the Life: Practical Tips for Today’s Employers

Continue Reading Registration for Henderson Franklin’s 28th Annual HR Law & Solutions Seminar is Open

Growing companies face all kinds of challenges. From financing to staffing, growth takes effort and attention. Among the many things that both drive growth and need this attention is the company’s intellectual property (“IP”). What follows are a few thoughts about some IP-related issues expanding businesses should keep in mind.

Button Up Protection

As businesses grow they must review their IP assets to ensure they are protected, especially the ones that are driving growth. These assets might include trademarks for new product names or brand extensions, taglines and logos, as well as patents for new technologies. Sometimes growth happens quickly and a business does not want to leave important assets unprotected.

Continue Reading Growing Pains: Intellectual Property Challenges for Expanding Businesses

The past ten years have seen amazing advances in technology and the next ten promise even more. How has the law kept up to ensure intellectual property rights are adequately protected and what are some major driving forces that will shape IP Law over the next decade.

2010-2020

  1. Globalization. With the rise of e-commerce and the Internet, falling borders and widening markets, businesses are now almost instantly global. No matter where a business is located, it must think beyond its borders and where its customers are and must take steps to protect their intellectual property across national boundaries. While only a select few businesses needed to worry about global IP protection during the 2000s, by 2020 the issue has become far more generally applicable. This has required businesses and their IP counsel to consider global issues at all phases of IP development and to devise appropriate global protection strategies.
  2. The Leahy-Smith America Invents Act (AIA). This 2011 overhaul to the United States Patent Act altered the long-standing US rule that the “first to invent” had superior rights to a “first to file” rule. This significant change brought the US patent system in step with the majority global rule. The AIA implemented other changes in the patent system, but the “first to file” change was most significant and just one of several that updated an antiquated statutory regime.
  3. IP as a Business Asset. For decades, the value of a business was primarily represented by its tangible assets — property, equipment, inventories, etc. This has changed, however, and intangible assets, specifically intellectual property assets, now account for significant portions of business valuation. Indeed, according to the IP-oriented merchant bank Ocean Tomo over 84% of the value of the S&P 500 in 2015 was represented by intangible assets. Further, the USPTO has reported that in 2014, “IP intensive industries” accounted for approximately one third of US GDP. With intellectual property becoming such a major component of the value of a business and such a significant element in our national economy during the past decade, businesses have had to adapt and become much more proactive to protect those assets.
  4. Alice. In Alice Corporation v. CLS Bank International, the Supreme Court ruled that merely applying an abstract idea on a computer is not patent eligible. What this effectively meant was that computer software programs that simply took abstract ideas—like hedging currencies—and implemented those ideas electronically could not be protected by the patent laws. This led to invalidation of a significant number of software patents and made it extremely difficult for software designers to patent their software. Designers had to react by resulting to different means to protect their inventions. While very few software patents have been issued since Alice, courts are beginning to interpret the decision in ways that pave the way for at least some wider availability of patent protection for software.

Continue Reading Looking Back, Looking Forward: Significant Intellectual Property Developments and Trends for the Future

Under the Lanham Act, (15 U.S.C. 1051, et seq.), a trademark owner can bring suit against any entity that infringes its trademark.

Among the recoverable damages are disgorgement of the infringer’s profits from the sale of infringing goods, 15 U.S.C. 1117(a). However, where the infringement constitutes counterfeiting, those damages can be trebled or the trademark owner can elect to recover statutory damages, amounting to potentially $2 million per mark infringed, 15 U.S.C. 1117(b), 1117(c).

The Sale of Counterfeit Goods

Continue Reading Holding Landlords Liable for Trademark Infringement by Tenant

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.

What Should Employers Do Now?

Continue Reading Show Me The Money: Some Exempt Employees Due a Raise in 2020