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

As we've mentioned here before, there has been proliferation of FLSA wage cases filed in the last few years, particularly in the Florida district courts.  In fact, the volume of FLSA claims has nearly tripled in the past 10 years.  According to updated federal statistics, over 5,500 FLSA lawsuits were filed nationwide between March 2008 and March 2009, marking a 7.5% increase over the previous period, and representing the second-highest total on record.

I bring up these staggering statistics because the FLSA affects everyone.  Unlike some of the other employment laws that only apply to employers with 15+ employees (Title VII, ADA), or 20+ employees (ADEA), or 50+ employees (FMLA), and so on, the FLSA applies to employers who have just one employee.  Everyone!  

It is imperative that employers take care to ensure they are in compliance with all parts of the FLSA.  Review employee classifications closely -- make sure you are only exempting employees who truly fit into one of the exempt classifications.  Check into your policies regarding on-the-clock and off-the-clock time, and make sure you are properly applying the rules on compensable time.  Set up complaint procedures and investigation guidelines.  Put a "Salary Basis Policy" in your employee handbook if you do not already have one. 

While these actions are neither exhaustive nor a complete defense to liability, taking each and every proactive approach to limit liabiity is a wise move these days.  Do it now, before your company becomes a statistic.

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The U.S. Equal Employment Opportunity Commission ("EEOC") announced the filing of three new disability discrimination cases in a recent press release.  These cases, which were filed under the ADA Amendments Act of 2008 ("ADAAA"), allege discrimination against qualified individuals with diabetes, cancer, and severe arthritis.

 You should recall that the ADA was amended by the ADAAA, effective January 1, 2009.  The ADAAA clarified and expanded the definition of "disability," making it easier for people with disabilities to qualify for protection under the ADA.  I wrote a brief newsletter article in October 2008 detailing some of the changes, which you can download here. 

The new cases are among the first filed by the EEOC under the ADAAA, but employers can rest assured they will not be the last.  According to EEOC Chair Jacqueline Berrien, the EEOC wants to send a "clear message that the Commission will vigorously enforce the ADA."  The EEOC's general counsel further cautions, "Individuals with disabilities -- including serious medical conditions such as cancer, diabetes, and severe arthritis -- must be evaluated according to their qualifications, and not their disabilities."

Employers and HR professionals should take special care to ensure they fully understand the scope and breadth of the ADAAA.  If you have any doubts or questions about the definition of diability, reasonable accommodations, or anything related to the ADAAA, the best time to act is NOW -- do not wait until the EEOC comes knocking.

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Last night, we hosted our latest Executive Forum here at Henderson Franklin's conference center.   An Executive Forum, for those of you who are not familiar, is a small gathering of human resources and other business professionals sponsored by our Employment Law Practice Group.  Attendees join us for cocktails, hors d'oeuvres, networking, and a presentation on varied topics of interest in the employment law world. 

About 25 professionals joined us last night for a presentation by Rob Teas of CIGNA on everyone's favorite hot-topic -- the Patient Protection and Affordable Care Act.  Rob shared a lot of great information, including several tips for employers as they tackle this massive legislation.  Among Rob's tips?  Employers should review coverage once "essential benefits" are defined; consider the benefits of self-funding, especially for small businesses; and assess the value of "Grandfathered" status on a plan-by-plan basis given the interim final regulations.

Also worth a special mention is the retirement of Goodwill Industries of Southwest Florida's HR Director, Becky Hayes-Foriest.  Becky retires at the end of 2010 after 31 years with Goodwill.  Becky, who is pictured below (center) with Steve Csotty of WilsonMiller and Charlotte King of Hope Hospice and Community Services, was recognized by John Potanovic and presented with a gorgeous gift basket from Norman Love Confections.  We wish Becky all the best in her retirement.

If you are interested in attending our next Executive Forum, which will be held sometime in early 2011, please let me know.  We would love to have you!

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Recently I was asked when an employer may seek a second opinion to verify an employee's serious health condition for purposes of Family Medical Leave Act ("FMLA") leave.  The folks at the FMLA Insights blog addressed this very question in their recent post, FMLA FAQ - When to ask for a Second Opinion.

Like the post suggests, the short, rules-based answer is that an employer who "doubt[s] the validity of a medical certification" can ask for a second opinion.  29 CFR 825.307.  This does not mean, however, that an employer should make a regular practice out of asking for a second opinion.  Take a more conservative approach, and only request a second (or third) medical opinion when you have a solid reason to doubt the medical certification provided by the employee.

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MEMO

From:  Miss Blu in HR

To:  All Employees

Re:  Perfume Assaults Policy

It has been brought to the attention of HR that some employees feel (okay, ONE employee feels) assaulted by the ridiculous amounts of perfume some of you are wearing, so HR created the following policy, which is effective immediately.

Perfume Assaults Policy:  It is this Company's policy that all employees shall refrain from assaulting other employees with perfume.  As you all know, some of us (or one of us!) may be allergic or have some sort of other aversion to smelling perfumes or other scents, and of course HR must try to accommodate these people.  Thus, all employees are forbidden from wearing perfume in the office, because heaven forbid the perfume waft over into someone else's breathing space.  Spraying perfume or any other scent on yourself while in the office is strictly prohibited.

As part of your daily grooming practices, you may use hair products, deodorant, and the like.  However, none of these products can be scented/perfumed because if someone smells you, they may be assulted, and you know we cannot allow that to happen.

HR will begin to patrol the office to ensure compliance with this policy.  Those employees found smelling too "perfumey" will be sent home to re-groom in accordance with this policy.  Repeat violators will be disciplined.

*Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida.  You can find her complete biography here.

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