Photo of Gail Lamarche

Gail is responsible for Henderson Franklin's marketing efforts, including advertising, branding, business and client development initiatives, budget planning, events, newsletters, press releases, seminars and sponsorships. She incorporates social media into legal marketing initiatives and assisted in the launch of the firm's three blogs, Southwest Florida Employment Law Blog and The Legal Scoop on Southwest Florida Real Estate and The Florida Immigration Law Blog. Gail also guest blogs and speaks on the use of social media in professional services.

Guest post by John M. Miller, Esquire, Stockholder in Henderson Franklin’s Tort & Insurance Litigation Group

I recently spoke on the topic of “Establishing Social Media Policies, Contracts and Legal Advice for PR Professionals” to members of the Gulf Coast Chapter of Public Relations Society of America (PRSA) in Naples. Social media continues to be a hot topic for employers and thought it would be good to share a few items that were discussed.

In the Beginning

Under the Obama administration, the National Labor Relations Board (NLRB) developed an employee-favored social media policy. The NLRB broadly protected private employees in their social media activity. Private employees could not be fired or punished for posting certain information on social media. Specifically, private employees are permitted to engage in “concerted activity” which is a fancy term for discussing their working conditions on social media. But, what does it really mean?

What exactly may an employee say about his or her work on social media without being reprimanded or disciplined?

Continue Reading Can Employers Regulate an Employee’s Social Media Content?

Guest Speaker Steve Gilliland

Make plans to attend the largest employment law conference in Southwest Florida, HR Law & Solutions, now in its 26th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Tuesday, March 6, 2018, for a fun-filled day of education and networking. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers: John D. Agnew, Esquire and Robert C. Shearman, Esquire
John and Bob will provide an interactive update on notable court decisions,
including cases addressing contentious employment policies and contract provisions, discrimination against protected classes of workers, as well as other noteworthy employee claims. EEOC trends and legislative developments impacting employers also will be addressed.

10:00 – 11:00 a.m. When Can I Fire This Injured Employee
Panel: Michael McCabe, Esquire (Moderator); Martha Bryson, SHRM-SCP, SPHR; John F. Potanovic, Esquire; David H. Roos, Esquire; and, Frank W. Piazza, Esquire (Mediator)
A panel of workers’ compensation and employment defense attorneys will be joined by an HR professional and a claimant’s attorney/mediator to address best practices when confronted with discipline or termination of an employee with an ongoing or recent workers’ compensation claim. The discussion will explore issues that can arise when dealing with this sensitive scenario, under workers compensation law, the ADA, and the FMLA, with the goal of avoiding unnecessary costs (wages and benefits) and reducing the risk of litigation.

11:15 a.m. – 12:15 p.m. #MeToo: Addressing the Harassment Epidemic in the Workplace
Speakers: Suzanne M. Boy, Esquire and John F. Potanovic, Esquire
One can hardly turn on the news these days without being bombarded by allegations of sexual harassment against celebrities and other public figures. #MeToo has become a powerful symbol of just how widespread sexual harassment is across the planet, with women and men of all backgrounds and in countless professions sharing their stories of abuse and harassment. In this session, attendees will learn about the many forms of sexual harassment, the types of behavior the courts say constitutes sexual harassment, the EEOC’s guidance and legal considerations regarding harassment, and an employer’s obligations under the law. Attendees will also learn practical tips, including specific actions to foster a harassment-free workplace; how to develop and enforce an anti-harassment policy; and day-to-day management practices that safeguard an organization.

1:45  – 3:15 p.m. Hide Your Goat: Strategies to Stay Positive When Negativity Surrounds You
Guest Speaker: Steve Gilliland
Not only do problem employees perform poorly, they make it tough for everyone else to do their jobs, too. The infection can spread quickly and those who discharge the poisonous toxin are masquerading as managers, supervisors and co-workers. The venom they eject produces by-products of bad attitudes, including resistance to change and personality conflicts. They cost plenty in terms of productivity and morale and make life tough for everyone. They delight in getting your goat! You’ll learn why people have bad attitudes and explore ways to head off conflict and confront people about their bad attitudes. Armed with information you gain from this session, you’ll be on your way to finding win-win solutions that will have you and your colleagues working effectively together. This session is guaranteed to make you laugh a lot, learn a lot, and leave outfitted with the means necessary to Hide Your Goat.

3:30 – 4:30 p.m. Employment Law Potpourri
Panel: John D. Agnew, Esquire; Suzanne M. Boy, Esquire; John F. Potanovic, Esquire; Robert C. Shearman, Esquire; David H. Roos, Esquire; Michael McCabe, Esquire
The legal issues facing HR professionals in the current economic climate are many, and the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced HR professional. Thorough knowledge of employment laws, early recognition of issues, and swift problem solving is key to reducing your company’s exposure to the many employment claims so prevalent today. Have questions you would like answered by the panelists? Email them in advance to Gail Lamarche at gail.lamarche@henlaw.com.

4:30 – 5:30 p.m. Happy Hour
Please join us after the conference for happy hour.

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 5.75 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (breakfast and happy hour sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.

Registration

Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials, and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

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

Today’s guest post comes from Michael Schofield, Esq., from the Clark Partington firm in Pensacola. He will be presenting at the Florida Law Alliance Fall Employment Law Conference taking place on Friday, November 10, 2017 (see below for more details):

Traditionally, when an employer and employee have a dispute over working conditions, terms, pay, or whatever, the employee quits or is fired, the employer then receives notice of a pending claim, either through the Equal Employment Opportunity Commission (the EEOC), or the state’s agency, and perhaps notice of a lawsuit. Recently, however, more employers are requiring arbitration in contracts of employment and such contractual agreements are being upheld.

In an employment context, is arbitration a good thing, bad thing, or simply and alternative to trial?

Continue Reading What You Need to Know About Employment Dispute Arbitration

Today’s guest post comes from Jeff Wilcox, an associate at the Hill Ward Henderson firm in Tampa. He will be presenting at the Florida Law Alliance Fall Employment Law Conference taking place on Friday, November 10, 2017 (see below for more details):

Are you making deductions from your exempt employees’ pay? If so, you may lose the right to classify the employee as exempt and, as a result, may end up owing the employee overtime pay for all overtime hours worked over the last two, or possibly three, years.

As a general rule, the Fair Labor Standards Act (FLSA) does not permit deductions from an exempt employee’s salary, because the salary cannot be dependent on the number of days or hours he or she works, or even the employee’s quantity or quality of work. There are, however, limited exceptions where deductions can be made. For example, if the employee is absent from work for one or more full days for personal reasons, a deduction is permissible. Moreover, if the employee is absent from work for one or more full days for sickness or disability, and the deduction is made in accordance with a bona fide “sick leave” plan, policy, or practice, a deduction is again permissible. Other limited exceptions exist, and it is important for employers not to deduct from an exempt employee’s salary unless one of the exceptions applies.

Join us in Fort Lauderdale in November

Continue Reading Deductions From Employees’ Salaries May Lead to Liability

Over the next few weeks, we will be sharing guest posts from our member firms with the Florida Law Alliance, who will be producing an employment law conference on November 10, 2017, at the Sonesta Fort Lauderdale Beach Hotel.

Today’s post is from Craig Salner, a partner at the Clarke Silverglate law firm in Miami:

Most South Florida practitioners are familiar with the barrage of recent lawsuits against places of public accommodation challenging their equal accessibility for the disabled. The Americans with Disabilities Act (“ADA”), a statute more known for its ban on disability discrimination in the workplace, has a section known as “Title III” which requires places of public accommodation to provide equal access to persons with disabilities. ADA Title III requirements typically have been applied to components of a business’s physical structure – appropriate linking of the parking lot to the adjacent sidewalk, sufficient main floor space for a wheelchair-bound patron to ambulate between and around aisles, bathrooms with sufficient space to maneuver with reachable soap and paper dispensers, etc.

Successful ADA Title III litigants are entitled to injunctive relief (i.e., the accessibility flaws must be remedied) plus attorney’s fees. Despite the lack of monetary damages available to litigants, ADA Title III litigation has spiked in South Florida with the emergence of certain serial “tester” plaintiffs – specific individuals claiming to test places of public accommodation for ADA Title III compliance and suing in instances of alleged non-compliance. Title III ADA lawsuits have nearly tripled nationwide in the last three years, rising from 2,722 in 2013 to 6,601 in 2016, including a 37 percent increase from 2015 to 2016. Florida is second only to California in the number of 2016 filings.

Are Internet websites places of public accommodation covered by Title III of the ADA?

Continue Reading Company Websites Under Attack – ADA Title III Expanding to the Internet

Guest post by Summer Associate Kristen Schalter

Football players took another hit in Tallahassee (pun intended) – this time in the workers’ compensation arena in the recent decision in Arena Football League v. Bishop, 2017 WL 2438335 (Fla. 1st DCA June 6, 2017). Bryon Bishop previously played for the Orlando Predators for one season and later wanted to rejoin the team. While participating in the Predators’ two-day tryouts in 2013, he suffered an on-field injury.

AFL Contract

Prior to participating in a tryout, a prospective Arena Football League (“AFL”) player is required to sign a contract.  Interestingly, the AFL contracts with players differently than the NFL. In the NFL, contracts are between individual teams and individual players, while in the AFL contracts are between the league itself and individual players.

Continue Reading AFL Player’s Workers’ Compensation Claim is Sacked by 1st DCA

Guest post by Michael McCabe, Esquire

It has now been almost one year since the Florida Supreme Court, in Castellanos v. Next Door Co., held that statutory fee limitations on what an injured worker’s attorney could be paid were unconstitutional. In response, the insurance industry has raised workers’ compensation rates by almost 15%. Florida employers and insurance companies now wait to see what, if anything, the Florida Legislature will do to address the situation.

Impact on Employers and Insurance Companies

As a workers’ compensation practitioner, representing only employers and their insurance companies, it is clear that the result of both Castellanos and the lesser known Miles v. City of Edgewater Police Department (a 2016 First District Court of Appeal case that held unconstitutional the workers’ compensation provisions prohibiting an injured worker from contracting independently with their attorney for a contingent fee) have certainly resulted in increased litigation and costs. While the prior fee limitations limited litigation and caused claimants’ attorneys to be selective as to which cases they chose to litigate, the current reality suggests that the opposite is occurring.

Proposed Legislation to Cap Attorneys’ Fees

With its prior attempts to limit the amount of fees that an employer or its insurance company would have to pay an injured worker’s attorney, first in 2008 and again in 2016, the Legislature’s challenge is to find more than a stop-gap solution to fees and resulting claims costs.

Two current proposed bills are currently being considered by the Florida Legislature. They both appear to involve Legislative Amendments to Chapter 440 that addresses recent Florida Supreme Court decisions and focus mainly on attorney’s fee provisions. House Bill 7085 includes amendments that propose a cap of $150.00 per hour on fees paid to claimants’ attorneys, while Senate Bill 1582 caps such fees at $250.00 per hour. This attorney’s concern is that amendments that focus mainly on only attorney fee provisions, and not substantive provisions of the Statute that lead to the payment of attorney’s fees, will be short-lived and not provide long-term relief for Employers and Insurance Companies.

Employers must keep in mind that they (and their insurance company) only have to pay for an injured employee’s attorney’s fees when a Judge of Compensation Claims finds that an employer/carrier improperly denied workers’ compensation benefits, or when an employer/carrier fails to provide due and owing benefits on an untimely basis. In all other instances, including when a claim is settled, the injured employee pays his own attorney’s fees. Therefore, the best medicine for employers and insurance companies is to use the tools available to them to make sure that claims are quickly and accurately investigated so that informed decisions can be made on which claims are compensable and valid, and which claims are not.

Move Forward Strategically

The Workers’ Compensation Defense attorneys at Henderson Franklin can help both employers and their insurance companies come up with strategies to effectively investigate claims and make informed decisions on which claims to contest, and which claims to accept. For those valid and compensable claims that are accepted, our attorneys can provide strategies and information which help employers and carriers limit claims costs.

For those cases spiraling out of control with ever-increasing medical costs, Henderson Franklin’s attorneys can help formulate a strategy to settle those claims at a fraction of what may be paid in the future (and with the employee paying for his attorney’s fees). There are many strategies that employers can apply, both before and after a work accident occurs, to reduce and control costs.

For insurance companies, we are available at a moment’s notice to provide recommendations on local physicians and to provide informed strategies on how a local claimant’s attorney will proceed with litigation. All of our Workers’ Compensation attorneys have over 13 years of experience. We welcome you to contact us with any questions or concerns. I can be reached at michael.mccabe@henlaw.com or by phone at 239-344-1218.

Human resource keyboardMake plans now to attend the biggest employment law conference in Southwest Florida, HR Law & Solutions, now in its 25th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Friday, March 10, 2017, for a fun-filled day of education. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers:  Robert C. Shearman, Esquire and Vicki L. Sproat, Esquire
Bob and Vicki will provide an interactive update on notable court decisions, including cases addressing contentious employment policies and other noteworthy employee claims. Attendees will learn practical advice and tips for businesses to reach their goal of a compliant workplace under current laws and regulations.

10:00 – 11:00 a.m. The ADA – 25 Years Later
Speaker:  John F. Potanovic, Esquire
On March 5, 1992, Henderson Franklin sponsored its first “Employer’s Update,” where John spoke to a small gathering at the Royal Palm Yacht Club about a brand new law – the Americans with Disabilities Act (ADA). Much has evolved since then. 25 years later, the Henderson Franklin seminar is called “HR Law and Solutions” and has 300+ attendees each year; the Royal Palm Yacht Club is a Pinchers Crab Shack; and John no longer has need for a blow-dryer. In this session, John will discuss the more difficult issues confronting employers attempting to steer clear of ADA problems, and he will share best practices to assist in dealing with these challenging issues.

11:15 a.m. – 12:15 p.m. How to Avoid Costly Litigation in Workers’ Compensation
Speakers:  David Roos, Esquire, Michael McCabe, Esquire and Tania Ogden, Esquire
Henderson Franklin’s Workers’ Compensation Defense Attorneys will share strategic tips employers can implement to help avoid costly litigation. They will discuss best practices with regard to policies that should be in place before the injury, how to manage and set employees’ expectations when an injury occurs, employer do’s and don’ts, as well as return to work policies. David, Michael and Tania will also share the importance of communication between the employer, insurance company and defense attorney(s) to try and achieve the best outcome possible for the employer.

1:45  – 2:45 p.m. New Year, New Administration: What Does 2017 Hold for Employers?
Speakers:  Panel discussion moderated by Suzanne M. Boy, Esquire, with panelists Robert E. Weisberg, Esquire, Regional Attorney for U.S. Equal Employment Opportunity Commission (Miami) and Benjamin Yormak, Esquire
There is little doubt in employer and HR circles that the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced leaders. After a 2016 that saw the Department of Labor roll out its huge new overtime changes mid-year, only to have implementation halted just weeks prior to the effective date, this has probably never been more true for 2017, when there is significant uncertainty surrounding what the new Administration will mean for employment laws. In this session attendees will have a unique look into what experts from all sides of the employment law world believe is on deck for 2017, including: potential changes to minimum wage and overtime laws, paid sick/maternity leave; the status of sexual orientation/gender identity protections; and, the ever-changing NLRB rulings. The panelists will also share their best tips to help employers stay in compliance and reduce exposure to the many employment claims prevalent today.

3:00 – 4:30 p.m. The Co-Workers’ Challenge
Guest Speaker Scotty Gunther
The Co-Workers’ Challenge is a quick paced, unique program that combines humor, motivational speaking, and leadership training. This session promotes teamwork, communication, and stress relief for HR professionals and other leaders through laughter. The Co-Workers’ Challenge provides participants various tools, strategies and tactics that they can use to help facilitate better communication, forge stronger working relationships among co-workers, and diffuse difficult or stressful situations more effectively.

4:30 – 5:30 p.m. 25th Anniversary Celebration
Please join us for a cocktail hour to celebrate our 25th Anniversary!

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 6 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (our 25th Anniversary Celebration Sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.

Registration

Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

Join Attorney Suzanne Boy on Wednesday, August 17, 2016 at Pelican Preserve (in the Magnolia Room – Town Center) as she presents “Wage and Hour Compliance:  What the New Rule Really Means for Florida Employers.

Tackling wage and hour issues is one of the most challenging (and potentially costly!) legal issues faced by businesses today. Add on the Department of Labor’s new Final Rule on overtime, which includes a complete overhaul of the salary basis portion of the primary overtime exemptions, and even the most experienced business owner, HR professional, or manager may face compliance issues. Florida employers need to take steps now to prepare for and make decisions on how to incorporate the changes required by the Final Rule. In this detailed session, attendees will learn tips regarding a broad variety of wage and hour issues, along with key actions to implement now to prepare their businesses for the upcoming changes.

hrci_afc_preapprovedseal_2016_newThis course has been approved for 1.5 HRCI Re-certification Credits (General) and 2.0 SHRM PDC’s.

Cost is $25.00 per person and includes a buffet breakfast.

Registration and breakfast begin at 7:30 a.m.  The session will begin at 8:00 a.m. and conclude at 10:00 a.m.

Please click here to register.

If you have any questions or concerns, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.