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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.

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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

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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

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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

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The Americans with Disabilities Act (the “ADA”) has been a tremendous source of litigation since its passage nearly thirty years ago. The ADA was originally put in motion to provide equal access to physical locations and services. It generally requires establishments to provide people with disabilities easy access to a business. But in 2016, the ADA began to include websites. The ultimate goal of the ADA is to eliminate exclusivity and offer an equal experience to all people. Thus, the logic goes, businesses should be inviting to everybody via physical location and website.

Over the past year, plaintiff attorneys have developed a cottage industry by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired. From 2017-18, lawsuits targeting website compliance have increased by 177%, with more than 2,000 filed in 2018. Often times the same disabled individual (with the same attorney) will file these claims. They seek an injunction to make the company’s website ADA accessible and attorneys’ fees. A nominal settlement will quickly follow (typically a few thousand dollars) with the vast majority of this going to the attorney. Florida is a breeding ground for this drive-by litigation, and it is frustrating the federal courts. See Price v. Escalante – Black Diamond Golf Club LLC, No. 5:19-CV-22-OC-30PRL, 2019 WL 1905865, at *1 (M.D. Fla. Apr. 29, 2019).

Lack of Guidance

Continue Reading The Latest ADA Shakedown: Website Compliance

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It is not uncommon to see your fellow Florida motorists, head tilted downward and not on the road, utilizing their mobile device to text while their vehicle is in motion. Florida is now catching up to the rest of the country in one important area:  giving teeth to our texting while driving law. Enacted in 2013, Florida Statute 316.305, known as the “Florida Ban on Texting While Driving Law”, is intended to improve roadway safety by preventing crashes related to the act of text messaging.

Secondary Offense Not Enough

This statute, however, only authorized law enforcement officers to stop motor vehicles and issue citations as a “secondary” offense to persons who were texting and driving. In other words, police were only able to cite motorists for texting if they were pulled over for other reasons, such as speeding or failure to yield. This law did little to curb accidents caused by “distracted driving”, which were numerous, and often deadly.

Continue Reading Florida Drivers Be Aware: Texting and Driving is a “Primary” Concern

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Title VII Requires Administrative Exhaustion

Before an employee alleging employment discrimination under Title VII may file a lawsuit in federal court, she must first exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency. This administrative-exhaustion process is designed to allow the EEOC to step in, and also gives the parties an opportunity at early settlement. If the EEOC decides not to take the case, it must issue a “right-to-sue letter,” which is evidence that the administrative exhaustion requirement has been satisfied. The employee then has 90 days to file suit.

There has long been a circuit split on how to treat discrimination claims that were never raised with the EEOC but later find their way into a plaintiff’s lawsuit. Several appeals courts treated this failure as an affirmative defense that could be waived by the employer if not timely asserted. The competing approach was to treat administrative exhaustion as a jurisdictional requirement. Meaning the defense could not be waived, thereby permitting employers (and the court) to raise the issue at any time. Prior to the Supreme Court weighing in the on the matter, the Eleventh Circuit fell into the latter camp. See, e.g., Bloodworth v. Colvin, 17 F. Supp. 3d 1245, 1250 (N.D. Ga. 2014) (“[I]n the Eleventh Circuit, administrative exhaustion is a jurisdictional prerequisite to Title VII actions.”) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.1999)).

Background – Fort Bend County v. Davis, No. 18-525

Continue Reading Supreme Court Decides Important Procedural Question under Title VII

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In 1966, the EEOC began requiring companies with 100 or more employees to compile employment data by race/ethnicity, gender, and job category. Dubbed EEO-1 Reports, these surveys were meant to provide a snapshot of how many racial and ethnic minorities and women were working in a company.

EEO-1 Reports Expanded

During President Obama’s tenure, the EEO-1 Report was broadened into two components. Component 1 would include the same information always collected, while Component 2 would include W-2 wage information for employees by race, ethnicity, and sex. Although designed to target pay discrimination, Component 2 was viewed as overly burdensome. Data compilation would take countless hours, while the human error rate was sure to increase on account of the significantly expanded form.

Continue Reading Federal Judge Rules that EEOC Must Collect Expanded Data on EEO-1 Forms – Current Deadline September 30, 2019

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Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “sex.” Most federal courts have interpreted Title VII to exclude sexual orientation discrimination. The Eleventh Circuit falls into this camp. Since its predecessor’s 1979 decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 937 (5th Cir. 1979), the Eleventh Circuit has steadfastly held to its view that “discharge for homosexuality is not prohibited.” Id. The rationale being that Title VII speaks only of a person’s sex and not sexual orientation. Against this textual backdrop, it is the legislature’s job to extend Title VII if it sees fit. See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017) (discussing view that sexual orientation is not a cognizable claim under Title VII.

Circuit Split

Continue Reading Supreme Court to Settle Dispute on LGBT Bias in the Workplace

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A plaintiff asserting a discrimination claim under Title VII must make a preliminary showing that her claims have merit. She can do so in a variety of ways, one of which is by navigating the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual. The Eleventh Circuit has long grappled with the question of just how “similarly situated” a plaintiff and her comparators must be – waffling between a standard of  “nearly identical” and “same or similar.”

This confusion came to an end last week in Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019), when the Eleventh Circuit sitting en banc held that a plaintiff must demonstrate she and the comparators are “similarly situated in all material respects.” Although the nomenclature is new, the court’s analysis of this standard is a win for employers. As the dissenting judges proclaimed,

[t]oday, the Majority Opinion drops an anvil on the employer’s side of the balance.”

The Facts

Continue Reading Eleventh Circuit Clarifies the Test for Comparator Evidence under McDonnell Douglas