Photo of John F. Potanovic

John F. Potanovic concentrates his practice in Employment Law and was among the first attorneys to achieve Board Certification in Labor and Employment Law in the State of Florida. He defends employers in discrimination, retaliation, whistleblowing and harassment lawsuits, including cases brought under Title VII, the ADA, the FLSA, and civil rights statutes, handling such matters through both jury and non-jury trials. John also handles wage and hour matters under the Fair Labor Standards Act, EEOC investigations and all aspects of employment counseling, including the review and drafting of employment policy handbooks. He is admitted to practice in all Florida state courts, as well as the United States District Court for the Middle and Northern Districts of Florida.

John serves on the Henderson Franklin’s Executive Committee and is Chair of the Employment Law practice group. He shares his expertise writing and speaking to many business and professional groups with regard to employment matters, and takes the lead in organizing the firm’s annual HR Law & Solutions educational seminar for human resource professionals.

For seven consecutive years (2009-2015), John was named by Florida Super Lawyers® magazine as one of the top attorneys in Florida, which recognizes the state’s top five percent of attorneys who are selected through an extensive peer review, statewide survey and independent evaluation. He is also AV-rated by Martindale Hubbell.

John joined Henderson Franklin in 1988. He has two daughters, Brittany and Jessica.

addict-1032371_1280Editor’s Note:  At the time of publishing, there was a typographical error in the title of “Wedding.” We apologize for any confusion.

Amendment 2 has passed – it’s no longer a pipedream (no more puns, I promise). So now what for employers? Will it gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use? There are sure to be other questions and issues arise, some of which may take court cases to fully answer, but let’s take a look at what we know:

  • A Constitutional Amendment takes effect the first Tuesday after the first Monday in January. That would be an effective date of January 3, 2017;
  • The Florida Department of Health will then have six months to pass implementing regulations;
  • The Department must begin issuing patient and caregiver identification cards, and registering MMTC’s (Medical Marijuana Treatment Centers) a/k/a/ “dispensaries”, within nine months from that effective date.

While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law. Consider these facts:

  • The Amendment specifically states that it shall not require accommodation in a place of employment.
  • It specifically states that it does not purport to give immunity under federal law.

Why are these facts important?

Continue Reading Weeding Out Workplace Impacts of Medical Marijuana Legalization

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 Yikes…Uber Drivers are Employees, Not Independent Contractors?

Good news doesn’t seem to come often for employers in the employment law world. However, just a few days ago, the U.S. Supreme Court issued two split (5-4) decisions favorable to management. Let’s take a brief look.

In Vance v. Ball State University, the Court found that a "supervisor," for purposes of vicarious liability under Title VII, is an employee authorized by an employer to take tangible employment actions against another worker. Justice Alito wrote that a Title VII "supervisor" must have the power to make a "significant change" in another worker’s employment status, such as through hiring, firing, failing to promote, reassigning with "significantly different responsibilities," or causing a "significant change in benefits." The majority rejected the broader definition of "supervisor" adopted by the Equal Employment Opportunity Commission. (Note: as the employment lawyers here at HF have mentioned before, it is important to consider the guidance and positions issued by the EEOC, but there are some which the courts do not follow – this is an example).

On the very same day, in Univ. of Texas SW Med. Ctr. v. Nassar, the Court ruled, in another 5-4 decision, that a plaintiff alleging unlawful retaliation under Title VII must prove retaliation was the "but for" cause of the adverse action. Here, the Court reversed a federal circuit court decision which held that a Title VII retaliation plaintiff can prevail if he/she shows retaliation was just a "motivating factor" for an employer taking adverse action. The Court held that the "mixed motive" standard only pertains to "status discrimination," meaning alleged discrimination based on race, color, gender, national origin, and religion. Writing for the majority, Justice Kennedy wrote that the "text, structure, and history of Title VII demonstrates that a plaintiff making a retaliation claim . . . must establish that his or her protected activity was a but-for cause of the alleged action."

This was a huge victory for employers. As we all know, retaliation claims have boomed in the last few years, and are often difficult to defend. The Nassar decision will make it much more difficult for plaintiffs to prevail, and will give employers a significantly improved chance of obtaining summary judgment on Title VII retaliation claims. It will be interesting to see if any members of Congress move to "legislatively overrule" this decision. Of course, any such move in that direction would likely take years.

And lastly, a bonus piece of good news. The date for the 22nd annual Henderson Franklin HR Law & Solutions seminar has been set. It will be held on Tuesday, April 1, 2014 at Sanibel Harbour Marriott Resort and Spa. Please mark that on your calendars. We at HF wish you a great summer!

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.

Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation – such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

An "accent discrimination" claim can arise if an employer takes the adage "the customer is always right" a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
 
What Does This Mean For Employers?
 
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here.  The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action.  Always better safe than sorry!

A provision in fictional ACME, Inc.’s employee handbook states:

"All employees are strictly prohibited from discussing their salary or wage information with one another. Violation of this policy may lead to discipline up to and including termination."

This provision, or one similar to it, is undoubtedly found in handbooks or other work rule documents in many workplaces. Is there a problem? Yes—and it could become more pronounced if not rectified soon by ACME and/or other employers.

Many employers are surprised to learn that the National Labor Relations Act ("NLRA") applies to non-union workplaces. It does, and Section 7 of the NLRA guarantees that all employees, regardless of union status, have the right to engage in "concerted activities for the purpose of . . . mutual aid or protection." This means that all employers, both union and non-union, are prohibited from interfering with their employees’ right to discuss terms and conditions of employment, including wages and benefits, with each other.

In a relatively recent National Labor Relations Board decision, the NLRB found that an employer’s "Confidentiality" rule, which prohibited employees from discussing disciplinary information and salary, "plainly infringes upon Section 7 rights" as it "explicitly restricts discussion of terms and conditions of employment."

Now that we know stifling discussion about wages and benefits risks violation of the NLRA, what about other ramifications?  Another consideration after the jump

Continue Reading The NLRA…Not Just for Unionized Workplaces