Southwest Florida Employment Law Blog

Yikes…Uber Drivers are Employees, Not Independent Contractors?

Posted in Department of Labor

Uber_app_icon - wikimedia commonsRonald Reagan famously once said: “The nine most terrifying words in the English language are ‘I’m from the government and I’m here to help.'”

On January 13, 2015, the State of Florida entered into an agreement with the U.S. Department of Labor (“DOL”) with the goal of preventing the misclassification of employees as independent contractors. It is part of DOL’s “Misclassification Initiative.” Nationally, this initiative has meant a significant increase in the number of investigations undertaken by DOL, and Florida employers can expect greater scrutiny in light of the agreement with DOL.

How’s the initiative going so far? Two very recent cases caught my attention. Just a few days ago FedEx settled with the DOL by agreeing to pay $227 million to delivery drivers in California that were classified as independent contractors. FedEx will bounce back – aren’t drones going to be delivering packages soon anyway?

Continue Reading

USCIS Clarifies Agency Policy on Amended H-1B Petitions

Posted in Immigration, Visas

The H-1B visa category applies to foreign workers performing services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. Prospective specialty occupation and distinguished fashion model employers must obtain certification of a Labor Condition Application for Nonimmigrant Workers (LCA) from the U.S. Department of Labor (DOL) prior to filing a petition for an H-1B worker. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.

On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), holding that a transfer of an H-1B employee to a worksite location within a geographical area which would require the posting and certification of a new LCA, may affect the employee’s eligibility for H-1B status; and is therefore a material change in the terms and conditions of employment requiring the filing an amended or new H−1B petition with corresponding LCA. Despite the AAO’s assertion to the contrary, this decision represents a significant change to previous agency interpretation and practice regarding the need for an amended H-1B petition in cases where an H-1B worker is transferred from one worksite to another.

Continue Reading

Workers’ Compensation Update – 2015 HR Law & Solutions

Posted in HR Seminars, Workers' Compensation

hurted hand and work injury claim formAttorneys David Roos and Michael McCabe met with several attendees at the HR Law & Solutions seminar last month, in a question and answer session to address specific issues from a workers’ compensation perspective. A major focus of the questions centered around the extent to which HR policies, practices, and procedures would be affected by a pending workers’ compensation claim. Questions also addressed how much control an HR manager or employer has over issues that would normally result in disciplinary actions, including termination.

Have Consistent Policies and Procedures

David and Mike explained that an employer retains the same level of control over employee conduct regardless of a pending workers’ compensation claim, and that an employer could exert that control through consistent implementation of HR practices and procedures. According to David and Mike, this would eliminate potentially expensive employment law actions such as retaliatory discharge. HR professionals need to maintain the same practices and procedures that apply to all employees, and need to keep in close contact with their insurance company adjuster and defense attorney (if one has been retained) to make sure that the employer is aware of how an HR decision affects the pending workers’ compensation claim. Understanding how HR decisions, such as termination, affect the underlying injury claim allows the employer to understand how those decisions will increase (or decrease) the costs of a workers’ compensation claim – and ultimately future insurance premium increases.

When Does Termination Affect Workers’ Compensation Benefits? Continue Reading

Intermittent FMLA Leave: A Chronic HR Headache (Part II)

Posted in Family Medical Leave Act (FMLA)

7K0A0129This blog is a sequel to my previous post summarizing the rules and regulations governing an employee’s use of intermittent FMLA leave, which you can find here.

Managing employees’ requests for intermittent FMLA leave can be complicated and frustrating. Intermittent leave is difficult to track. It is often abused (or is it merely coincidental that leave is most often requested for a Friday, Monday, or the day before a holiday?!). Intermittent leave causes workplace disruption—especially when it is unforeseeable. Employee morale is often affected when co-workers are forced to pick up the slack for an absent co-worker. Although employees on intermittent leave may be temporarily reassigned to a different position, they must still be restored to their original position at the end of the approved leave period. No wonder that FMLA leave is a chronic HR headache!

Here are a few tips for treating this chronic headache: Continue Reading

Intermittent FMLA Leave: A Chronic HR Headache (Part I)

Posted in Family Medical Leave Act (FMLA)

clock flickr katerhaAt HR Law & Solutions last month, attendees asked tough questions about handling requests for intermittent leave under the FMLA. I promised to write a blog post summarizing current rules and regulations, so here goes:

Intermittent leave is FMLA taken in periodic short blocks of time for a single FMLA qualifying reason. Common reasons for intermittent leave include time off for an employee’s occasional medical appointments, flare-ups of a chronic condition (ex. migraines), or periodic treatment of an ongoing disease (ex. chemotherapy). Intermittent leave can also be taken for a family member’s serious health condition or for military caregiver leave. Employers must also grant intermittent leave to an employee whose spouse, parent or child is called up for active military duty.

Continue Reading

Seminar Wrap-Up and NLRB Report on Handbook Policies

Posted in Employee Handbooks, HR Seminars

IMG_3428We want to send a special THANK YOU to the more than 300 of you who attended HR Law & Solutions last week. It is always such a pleasure for all of us – it feels like an annual reunion! Congratulations to all of our raffle winners, and especially to our new HR Law & Solutions Hall of Fame recipients (pictured left to right): Patti Reigle (of Digestive Health Physicians), Fran Barker (of Physicians’ Primary Care), and Kim Hopkins (of McGregor Baptist Church.

As I mentioned during our What Would You Do? session, the National Labor Relations Board (“NLRB”) recently issued a report on employer handbook policies. It is…interesting, to say the least. The report gives examples of (supposedly) lawful and unlawful handbook policies on issues like confidentiality, conduct toward supervisors and fellow employees, conflicts of interest, and employees leaving work. Generally, “lawful” vs. “unlawful” turns on whether the NLRB thinks the particular policy infringes upon employees’ Section 7 right to engage in concerted activity regarding terms, conditions, or privileges of employment.

Continue Reading

HR Law Keynote Speaker Stephen Bienko’s Challenge

Posted in HR Seminars

We are looking forward to hearing from Stephen Bienko, our HR Law keynote speaker on March 24. He will be presenting “Discovering Your WHO: Unifying the Workplace Through Effective Communication and Leadership.” Stephen has quite an accomplished and varied career – he is the founder and President of 42 Holdings, the majority owner of the College Hunks Hauling Junk and Moving brands. In the past, he was a professional athletic trainer and sports agent, and a New Jersey State Trooper. In 2013, Stephen testified on Capitol Hill before the House Small Business Subcommittee on Health and Technology on the impact of Obamacare on small business, and he has been featured on Fox News, Fox Business, Bloomberg TV, and the Wall Street Journal.

In preparation for the seminar, Stephen prepared a short video message.  Be sure to listen to the whole video so you can learn about Stephen’s challenge for attendees — the winner will receive a special prize from Stephen!

Big thanks to Stephen for putting together the video.  Registration for the 23rd Annual HR Law & Solutions seminar will be closing shortly so be sure to sign up soon!

HR Law & Solutions 2015: Counting Down, Questions for the C-Suite?

Posted in HR Seminars
csuite panelists

Top Row (left to right): Samira Beckwith and Peter Dys Bottom Row (left to right): Larry Hart, Gail Markham, Sara Stensrud

We are in the final countdown to the 23rd HR Law & Solutions seminar! On March 24, over 250 HR professionals, business owners, and managers will gather to learn about new employment case law and legislation; to analyze thought provoking real-life scenarios involving disability/medical leave, wage/hour, retaliation, and LGBT related matters; and to get answers to common employment questions that plague their workplaces.

One session we’re particularly excited to offer this year is “A View from the C-Suite,” which will bring together several leading CEOs and other C-Suite professionals as they share insight on key HR issues, strategies, and best practices for dealing with tough workplace issues. We are so grateful to our amazing panelists, including Samira Beckwith, President and Chief Executive Officer, Hope Healthcare Services; Peter Dys, President and Chief Executive Officer, Shell Point Retirement Community; Larry Hart, Lee County Tax Collector; Gail Markham, President, Markham Norton Mosteller Wright & Company; and Sara Stensrud, Executive Vice President and Chief Human Resources Officer, Chico’s FAS Inc. (pictured above).

Continue Reading

23rd Annual HR Law & Solutions Seminar: Registration is Open!

Posted in HR Seminars

31888_512617998779865_1414674982_nHenderson Franklin’s Employment Law Group will present its 23rd Annual HR Law & Solutions seminar on Tuesday, March 24, 2015 at Sanibel Harbour Resort & Spa. This year’s conference will provide a fun day of learning for human resource professionals and business owners.

Topics and Speakers

Legislative and Case Law Update presented by Attorneys Robert Shearman and Vicki Sproat

A View From the C-Suite panel discussion moderated by Attorney John Potanovic, with panelists: Samira Beckwith, President and Chief Executive Officer, Hope Healthcare Services; Peter Dys, President and Chief Executive Officer, Shell Point Retirement Community; Larry Hart, Lee County Tax Collector; Gail Markham, President, Markham Norton Mosteller Wright & Company; and Sara Stensrud, Executive Vice President and Chief Human Resources Officer, Chico’s FAS Inc.

What Would You Do? This interactive session presented by Attorneys Suzanne Boy and John Potanovic will share thought provoking real-life scenarios and help attendees identify and resolve issues involving disability/medical leave, wage/hour, retaliation, and LGBT related matters.

Discovering Your WHO: Unifying the Workplace Through Effective Communication and Leadership presented by keynote guest speaker Stephen Bienko.

Breakout Sessions with Employment Law Attorneys John Potanovic, Suzanne Boy, Vicki Sproat, and Bob Shearman; Immigration Attorney Tulio Suarez and Workers’ Compensation Attorneys David Roos and Michael McCabe.

Continuing Education

Continue Reading

Employee Retaliation Claims Continue to Rise

Posted in Discrimination, Harassment, Retaliation, Sexual Harassment

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 my colleague Suzanne Boy 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