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Vaccine PassportAt the start of summer, Governor Ron DeSantis declared that Florida is “no longer in a state of emergency.” This statement preceded a bill banning vaccine passports, and two executive orders suspending local government COVID-19 restrictions.

For employers, this doesn’t mean you should rush to discard your face marks requirement, nor should it impact your decision to mandate vaccines. Employers remain free to implement safety features they feel needed.

New York vs. Florida

Many Northeastern states have begun experimenting with COVID passports. For instance, New York City now requires at least one dose of a COVID-19 vaccine for entry to indoor dining, gyms, and entertainment performances. For better or worse, Florida has gone in the opposite direction. Florida law now prohibits businesses from implementing these measures with respect to customers. Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business.

EEOC’s View

Continue Reading What Florida employers need to know about the vaccine passport ban

COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?

Continue Reading Coming Back to Work – Common Coronavirus Questions by Employers

On Tuesday, January 26, 2021 (at 9:00 a.m.), Labor & Employment Attorney Scott Atwood will provide an update for business owners and HR professionals on the state of employments laws.

With the introduction of COVID vaccines resulting in many employers returning their workforces to the office, they will likely face a multitude of questions. In this one-hour webinar, attendees will learn:

  • the most recent EEOC and CDC guidance on COVID return-to-work and discrimination issues;
  • the fate of the Families First Coronavirus Response Act; and,
  • the general status of employment laws under the new Biden Administration.

Continue Reading Webinar: 2021 Back to Work HR Law Update

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

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

Today’s guest post comes from Susan Smith Erdelyi, Esquire, Marks Gray, Jacksonville. She will be presenting at the Florida Law Alliance Fall Employment Law Conference taking place on Friday, November 10, 2017 with EEOC District Director Michael Farrell:

Did you know that the Equal Employment Opportunity Commission is becoming paperless? That’s right. The agency now uses a portal for employer position statements and no longer accepts paper documents from employers. So, if your employer/client is still mailing paper documents to the EEOC, it’s time to step aboard the EEOC Respondent Portal.

How Does It Work?

Continue Reading HR Seminars: Transparency, Efficiency and the EEOC Portal System

radical color copyWe are excited to announce that Suzanne Boy will be presenting at the Florida Law Alliance Employment Law Conference, taking place on Thursday, November 12, 2015 at the law offices of Hill, Ward & Henderson in Tampa, Florida. Henderson Franklin is a member of the Florida Law Alliance, a group of six independent law firms practicing throughout Florida. The firms have combined their knowledge, efforts, and resources to increase efficiency, lower costs, expand the scope and improve the quality of legal services each firm provides to its own clients.

Topics and Speakers

Avoiding and Defending Wage and Hour Class and Collective Actions presented by Attorney Craig Salner from the Clarke Silverglate firm in Miami. Employers know that the only lawsuit you win is the one that never gets filed. In the case of wage and hour litigation, this is particularly true of collective actions under the Fair Labor Standards Act (“FLSA”) and class actions under State law counterparts. This presentation will focus ways to defend class and collective actions or better yet, avoid them altogether.
Continue Reading LGBT, Social Media and EEOC Charges to be addressed at Fall Employment Law Conference

Eeoc_logo2Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?Continue Reading Employee Retaliation Claims Continue to Rise

self driving car by Steve Jurvetson flickrHere’s a novel question for you: What do so-called “autonomous” cars have in common with class action federal employment discrimination lawsuits?

As an admitted car guy, I am often taken to drawing parallels between the automotive world and the legal profession (and just about everything else in life). So when I recently came across a lawsuit filed by the EEOC, my mind wandered from the courtroom to the road. Let me explain.

First, as you may know, an autonomous car is a car that literally drives itself — a “self-driving” car. If you’ve been reading too many car magazines like me, you’ve probably read about ongoing research and development efforts by various car manufacturers to develop a truly self-driving, pilot-less vehicle. Many automotive experts predict that in a relatively short period of time — say 10 years from now, perhaps sooner — such vehicles will be commonplace on roads in the U.S. and elsewhere.

EEOC v. Bass Pro Outdoor WorldContinue Reading Self-Driving Lawsuits?