Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

In my last blog post on improving your workplace documentation practices, I 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 to win your employment case. What employers need is effective workplace documentation. Effective documentation gives you (the employer) credibility, allows you to demonstrate that you followed the law, and serves as "Exhibit A" if you go to trial.

Here are some dos and don'ts of effective workplace documentation.

Dos:

• Do record specific objective and factual information. Specific information (who, when, where, why, etc.) allows you to recall and support workplace events and decisions.
• Do follow consistent documentation practices. Similar situations should be treated and documented in a similar manner to avoid claims of retaliation or discrimination.
• Do reference or include relevant back-up information. Reference past relevant events, specific workplace policies, procedures, and rules that are involved in the situation.
• Do allow for employee acknowledgment and feedback where appropriate. It demonstrates the employee was given information; it also describes the employee's reaction and rebuttal to the information conveyed.
• Do proofread the document.  Is the document clear, objective, and complete? Beware the perils of e-mails and texts where the casual nature of the medium often leads to inadvertent, but costly, mistakes.
• Do sign and date the document. If the document is worth preparing, it should be legible and the author of the document and the date should be noted.

Don'ts:

• Do not include personal feelings, impressions or opinions. Stick to the facts. Inflammatory or judgmental comments will not help your case.
• Do not use legal or technical terms and conclusions. Ask yourself whether a person outside your organization will understand the information the document is intended to communicate.
• Do not write personal notes on company documents. It might help you to remember the candidate if you jot down notes of race, gender, etc., but such a notation can wreak havoc in a discrimination case.
• Do not use "always" or "never." Most employee conduct is not absolute. The use of these terms can affect your credibility.
• Do not "embellish" or "sugarcoat." Inflation of employee performance makes it difficult to support disciplinary action. Telling the good and the bad, allows employees to accurately gauge their performance and conduct.
• Do not backdate documents. This practice is dangerous and in some cases, illegal.

Consult your legal counsel if you have questions on how to document a workplace event or observation.

Next post in this workplace documentation practices series:  When to document? Immediately!

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Yesterday, April 16, 2013, the United States Supreme Court rendered a significant decision within the FLSA arena that will surely change the strategy of many employers facing potential collective action claims.

For the three hundred or so of our readers who attended our HR Law & Solutions Seminar last month at the Sanibel Harbour Resort, you may recall a case Bob Shearman and I briefed in the case law update portion of our seminar, Genesis HealthCare Corp. v. Symczyk. The case was in the "on the horizon" portion of our presentation, as it was on appeal to the U.S. Supreme Court and oral argument had occurred in December 2012, but no decision had yet been rendered. That decision is now in, and it's a rare breath of fresh air to employers, who do not very often hear "good news" and "FLSA" in the same sentence.

Case Background

As a recap, Symczyk sued under the FLSA on behalf of herself and all others similarly situated. This was a Section 216(b) collective action. Prior to any additional plaintiffs opting into the suit, Genesis extended an offer of judgment to Symczyk under Federal Rule of Civil Procedure 68, in full satisfaction of her alleged damages, fees, and costs and did so prior to other potential plaintiffs opting in.

After tendering the offer and Symczyk not accepting it within the window provided, Genesis moved to dismiss the claim, arguing that since Symczyk was being offered everything she demanded in her complaint, there was not lawful reason why she should be able to continue her case. Over the objection of Symczyk, who arguedthe suit should continue since the offer of judgment did not also offer to pay all the claims of those potential opt-in plaintiffs who are similarly situated, the U.S. District Court dismissed the lawsuit.

The Supreme Court's Decision

Although the Third Circuit Court of Appeals reversed the trial court's decision, the U.S. Supreme Court held the trial court got it right. Specifically, the Court held that with total relief being offered to Symczyk and no other individuals having joined the suit as of that time, Symczyk no longer had an interest in the outcome of the lawsuit. Accordingly, since the dispute was rendered moot, the trial court no longer had jurisdiction to hear the claim and necessitated its dismissal.

Why You Should Care

As most of you know, the FLSA requires an award of reasonable attorneys’ fees to the plaintiff(s), if they are successful. As I advised a client earlier this week (and as I have many times before), litigating an FLSA claim is about determining at the earliest possible moment whether a violation has occurred. If we are certain it has not, then we strategize the fight. If, however, a violation has occurred and even $1 of minimum wage or overtime is due, the best strategy is settling as soon as possible, since entrenched fighting will only result in the employer paying thousands of dollars in attorneys' fees to its counsel and also to plaintiff's counsel, in addition to the wages claimed.

Collective actions obviously increase the potential amount of damages at issue, as well as the recovery of attorneys' fees. The Supreme Court's decision in this case allows employers faced with FLSA collective action claims a strategic opportunity to resolve the claims early in the life of the lawsuit, before attorneys' fees begin to rise exponentially. So, if you have the misfortune of being on the receiving end of a collective action suit and an internal determination of liability has been made, you should strongly consider making a quick offer of settlement for all claims of the representative plaintiff, before the plaintiff obtains the right to send notice of the suit to all "similarly situated" employees, soliciting them to join in the action. Doing so could save you tens or hundreds of thousands of dollars or more.

Be mindful, however, that while these potential opt-in plaintiffs will not be provided formal notice of the settled suit or be permitted to join it, the settlement of this case does not foreclose those potential opt-ins from later bringing their own lawsuits (or do nothing at all). This being the case, it will also be incumbent upon us to, simultaneously with the settlement of the case, cure whatever deficiencies created the liability, so that the statute of limitations begins to run on the claims of those similarly situated. Thereafter, each month that passes without suit from any (or all) of those similarly situated is money staying in the bank of the employer.

If you have any questions, feel free to contact me or your regular employment lawyer with Henderson Franklin.

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Our HR Law & Solutions seminar is less than a week away! As we make final preparations, we want to take a moment to thank our sponsors for their support and share a little information about them:

Breakfast Sponsor - CTR Systems

Name of Representative to be in attendance at conference:
Bridget Escobar

What do you feel is the biggest challenge facing employers and HR professionals? One of the biggest challenges that employers and HR Professionals face is how to find affordable yet efficient technology to properly manage their human resources and payroll processes.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? CTR Systems can provide Southwest Florida businesses with a variety of affordable technology solutions to manage their payroll, human resources, and time and attendance business processes. Our solutions will help Southwest Florida businesses manage their employees from recruitment to retirement.

Years in Business or in Southwest Florida: CTR has been in business since 1965.
 

Lunch Sponsor - Lykes Insurance

Name of Representative to be in attendance at conference:
R. Mark Webb

What do you feel is the biggest challenge facing employers and HR professionals? Making informed decisions regarding both human and financial capital to assist H.R. in becoming more credible and impactful in organizational success.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? Education/Training by raising awareness and bringing solutions through education on current issues facing organizations. Proven outcome is increased awareness through education in topics directed toward success in business.

Years in Business or in Southwest Florida: 85 years or since 1925
 

Valet Sponsor - Markham Norton Mosteller Wright & Company

Name of Representatives to be in attendance at conference:
Sandie Peterson, SPHR, and Christi Sarlo

What do you feel is the biggest challenge facing employers and HR professionals? The biggest challenge is finding qualified, motivated employees.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? As a certified public accounting / and business consulting firm our goal is to help businesses grow and be profitable. In addition to traditional accounting functions, such as taxes and financial statements, we can conduct an operational review which would indicate appropriate flow of work both for efficiency and protection from fraud. We are pro-active in guiding clients in making financial decisions throughout the year.

Years in Business or in Southwest Florida? 33 

We also thank our in-kind sponsors:  HRMA of Southwest Florida, HR Collier and Charlotte County SHRM!  Be sure to stop by all our sponsor booths to learn more about them the day of the conference!

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A few weeks ago, the Family and Medical Leave Act (FMLA) celebrated its 20 year anniversary. At a recent speech at the Department of Labor, Former President Clinton, who signed the FMLA into law in 1993, stated "I've had more people mention the family leave law to me, both while I was in the White House and in the 12 years since I've been gone, than any other single piece of legislation I've signed."

Political proponents marked the anniversary by advocating their calls for enhanced leave benefits. Clinton, President Obama, Representative Nancy Pelosi, and Senator Tom Harkin all recently introduced or advocated for legislative measures aimed at, among other things (i) mandating paid family and medical leave; (ii) dropping thresholds so that the FMLA applies to smaller employers; (iii) making job protected leave available to part-time employees; and (iv) redefining what qualifies for protected leave to include, for example, recovery from routine illness like the flu.

Senator Harkin is poised to re-introduce the Healthy Families Act, which would require companies with 15 or more employees to allow workers to earn up to an hour of paid sick leave for every 30 hours worked. Moreover, House Democrats recently introduced the "Federal Employees Paid Parental Leave Act," a bill which would provide all federal employees four weeks of paid parental leave upon the birth or adoption of a child. Other measures are being debated and considered, and Republican opposition is expected.

Suffice to say that the next four years should be interesting for employers on the leave and benefits front. We will keep you informed as these events, sure to impact most employers, play out in Washington.

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In my last blog post, I challenged employers to resolve to improve their workplace documentation practices in 2013. This post is the first in a promised series of practical tips for achieving your resolution.

How many times have you heard the phrase: "If it's not in writing, it didn't happen."? That saying has special meaning in the workplace context. Judges, jurors, arbitrators, EEOC investigators, unemployment referees, employees, and last, but not least, ME as the attorney retained to defend your company, expect employers to keep good records, and to be able to produce them when a question arises about a workplace complaint, incident, or employment decision. 

Documentation comes in many configurations. Employers can document through formal reports, printed forms, memoranda, performance evaluations, disciplinary memos, phone notes, day planners, post-its, and even on the back of cocktail napkins. In future blogs, I will discuss how, when, and where to document or record workplace events, observations, communications, but first things first: WHAT SHOULD BE DOCUMENTED?

Here is a list of the many "documentation worthy" workplace activities.

• Recruiting materials and employment applications. (Necessary to establish compliance with Title VII, ADA, ADEA, OFCCP, Affirmative Action Regulations, and many other laws recognized by their acronyms.)
• New hire information. (Critical to demonstrate terms of employment and compliance with federal and state laws. Includes employment application and references, criminal background check, required certifications and licenses, drug tests results, driver's license checks, I-9s, etc.)
• Payroll.  (Required by law and must be retained under the IRC, EPA, FMLA, FLSA.)
• Performance evaluations. (Essential to ensure clear communication of employer's expectations, support employment decisions, track progress, correct deficiencies and defend lawsuits.)
• Misconduct and discipline. (Important to address employee behavior and violation of workplace rules and standards of conduct, establish patterns of behavior and administer progressive discipline in a fair and consistent manner.)
• Employee incidents, complaints, and investigations. (Necessary to establish a precise accounting of events that are critical to legal disputes and to promote better decision making.)
• Leaves of absence. (Key to calculating, tracking, and coordinating leaves of absence under FMLA, workers' compensation ADA, USERRA, Florida domestic violence leave law, and voluntary employer policies.)
•  Absenteeism and tardiness. (Necessary to track hours of non-exempt employees and to ensure the fair and consistent administration of employer's absenteeism policy.)
• Accommodations. (Convenient to demonstrate employer's participation in the required interactive process of accommodating disability, religious practices, etc.)
• Employee acknowledgments. (Valuable to prove that employee attended training sessions and received policies, write-ups, performance evaluations, and required notifications.)

While this list is not exhaustive, it gives you an idea of the diverse workplace activities that should be documented and why proper documentation is important.

Next post in this workplace documentation practices series: How to document? Carefully.

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We are so excited to announce that registration for the 2013 HR Law & Solutions seminar is now open!  The seminar is set for March 19, 2013, at the Sanibel Harbour Resort & Spa.  Topics and speakers include:

• Legislative and Case Law Update presented by Robert Shearman, Esq. and John Agnew, Esq.
• Strategies and Best Practices for Handling Workplace Investigations presented by John Potanovic, Esq.
• Breakout Session #1, Latest Developments in Immigration Law presented by Tulio Suarez, Esq.
• Breakout Session #2, What’s New in the Workers’ Compensation Arena presented by Cora Molloy, Esq., David Roos, Esq., and Michael McCabe, Esq.
• HR – Keepers of the Culture:  Creating a Workplace of High Performance, Quality and Excellence, presented by Guest Speaker Chip Madera
• Employment Law IQ:  Test Your Knowledge and Issue Spotting Abilities presented by Vicki Sproat, Esq. and Suzanne Boy, Esq.

Though we know we have a tall order to surpass last year's 20th Anniversary HR Law & Solutions, we have a great line up and, of course, a few fun surprises as well.  Last year was a record-breaking year with over 300 attendees -- we hope you all will help us exceed that this year!  Click here to download the brochure.  Click here to register.  Looking forward to seeing you soon!

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Yesterday, the Equal Employment Opportunity Commission announced it received 99,412 private sector workplace discrimination charges during the 2012 fiscal year.  In its  press release , the EEOC noted that while the number of charges is down slightly from last year, it recovered $365.4 million dollars for employees, the "largest amount of monetary recovery" through its administrative process.

(Side note:  I'm not sure how that's the "largest" recovery, if EEOC recovered $404 million in 2010, but then again I'm no math major....).

For the third year in a row, retaliation claims were the most frequently filed claim (38.1%), followed by race (33.7%), sex (30.5%), and disability (26.5%).  There was a jump in sex and disability claims over last year. 

A stat I found particularly interesting is that although the EEOC reduced the pending inventory of charges by 10% from the 2011 fiscal year, it still has over 70,000 cases in queue.  So, for those of you who feel like you've been waiting for-ev-er for a determination, don't worry -- you're clearly not alone!

What does this mean for employers?  Be extra extra careful not to take any action that remotely resembles retaliation!  I know we say this every chance we get, but it's SO important, and these statistics prove it.  Remember, even if the employee does not have a valid underlying claim, he/she can have a valid retaliation claim if take adverse action after you learn of the employee's discrimination or harassment complaint. Don't be a statistic!

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So...I never thought I would see the day when I'd blog about Justin Bieber, but when I read he was being sued by his bodyguard for over $400,000 in unpaid wages and assault, I couldn't resist.  That's right, not only did the Biebs** allegedly fail to pay his bodyguard overtime, the 5'7" teen idol also allegedly roughed up his bodyguard during a confrontation last fall.

The bodyguard alleges he was mistakenly told he wasn't entitled to receive overtime despite working 14 to 18 hour days for about a year and a half.  That's a lot of time protecting Bieber from the throngs of screaming fans and crazed paparazzi.  In addition to unpaid overtime, the bodyguard also claims he's owed vacation and other wage benefits, for a grand total of $421,261.

My first thought (after laughing about the thought of JB assaulting a bodyguard) was that none of the typical FLSA exemptions would apply to a bodyguard.  Then I thought more about coverage, etc., and decided it wasn't quite that clear cut.  Does the bodyguard have a valid claim?  Let's take a look at the Biebs' legal woes.

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My #1 recommended resolution for employer clients in 2013? Improve your workplace documentation practices. Why? Because I like to win cases for clients, and most employment lawsuits are often won or lost based on the presence, quality, and accuracy of an employer's documentation.

Experts tell us that understanding the benefits of your New Year's resolution will help you keep it. So, here are five important reasons why proper documentation will improve your workplace and increase my chance of winning your employment lawsuit:

• Proper documentation demonstrates an employer's compliance with federal, state, and local laws.
• Proper documentation leads to better and more objective decision-making.
• Proper documentation lends credence to an employer's explanation of the legitimate business reasons underlying its employment actions.
• Proper documentation provides evidence that similarly situated employees were treated the same.
• Proper documentation helps witnesses remember key events.

Announcing your New Year's resolution also increases the likelihood you will keep it. For my part, I promise to help you improve your workplace documentation practices in 2013 by providing you with specific tips and strategies in future blog posts. To put it in legal terms: 

WHEREAS, proper workplace documentation is critical to minimizing employment disputes and improving an employer's position in litigation. NOW THEREFORE, BE IT RESOLVED that the aforesaid employer/reader and the undersigned attorney/writer will work together to improve workplace documentation practices in 2013.

I will keep my resolution for 2013. Will you?

Next post: What to document? Almost everything. 

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