New Year, New To Do's

First and foremost, Happy New Year! We hope 2019 holds great things for you and yours.

Now, back to business! Here is a friendly reminder to business owners of the things that I would recommend doing in the coming weeks:

  • January 1st: Florida’s minimum wage increases to $8.46 for hourly employees and minimum direct wage of $5.44 for tipped employees. Employers must post the new minimum wage rates in a conspicuous location. And, don’t forget—if you have employees who are working below the new minimum wage, be sure to increase their pay as of January 1, 2019.

  • Renew your Secretary of State filings: Don’t forget to file your annual reports with the secretary of state, if applicable to your business.

  • Issue Tax Forms: Check deadlines and talk to your accountant to ensure you are timely issuing all of the proper tax forms, such as 1099’s and W-2’s.

  • For My Fellow Attorneys: the beginning of the year might be a good time to check and see if your Florida Bar Trust Accounting Plan is current, if you are required to maintain one. Make sure your trust accounting for 2018 is complete and reconciled. Also, take a look at the holidays observed by your local, state, and federal courts so you can plan your year accordingly.

  • All Other Employers: go over your employment documents. Has it been a while since your employee handbook was revised? Is it a good time to review your employees’ job descriptions to ensure they accurately reflect their day-to-day activities? If you haven’t had a board or members’ meeting lately, look into doing.so. You can set goals for the quarter or even the year, look back at what worked in 2018 and what didn’t, and update your by-laws, if needed. You may also want to go over your insurance policies with a licensed agent to be sure that you have ample coverage in areas like workers’ compensation (if required), general liability, and even employment practices liability.

That’s all for now! Best of luck for a successful 2019!

***Please note that this information is based on laws, rules, or guidelines applicable in Florida. It is not intended to be, or otherwise construed as, legal advice. If you have questions or concerns specific to your business, you can set an appointment through our website (www.thorpelawyers.com) for a consultation.

Don't Believe Everything you Read on the Internet

I know it’s shocking, but you can’t believe everything you read on the internet. For example, I recently came across an article entitled “30 Things to Never Give an Employer Until They Hire You,” which, upon review, contains both good and bad advice. In my opinion, there are some serious flaws both from a legal perspective and from a practical perspective with the “tips” in this article. Here are a few of the glaring issues I found:

  1. The article suggests that you may want to make “at least some of your contact list available to your employers.” This may pose a problem if your contacts were obtained through your previous employment and you are subject to a non-competition and/or non-solicitation clause. You could be sued for a violation of the agreement and the new employer could even be sued for tortious interference with an advantageous business relationship or contract. Not good.

  2. The article notes that materials you developed at your previous employment are “your intellectual property and yours alone.” However, that is not always the case. Many employers will specifically indicate that any patents or other intellectual property developed while working for them become the property of the employer. Therefore, that speech you wrote for your previous employer that was copyrighted may not, in fact, be “your intellectual property and yours alone.”

  3. The article discourages you from disclosing visa-related issues. I couldn’t disagree more. In fact, failing to disclose that you may not be able to work for the company in a few months because your visa is running out is almost like lying by omission to get the job. On the contrary, if an employer is aware of your visa situation and believes you are a good fit for the company, the employer could possibly assist you by sponsoring you for a work-related visa.

  4. The article is very negative about attending a company function before officially obtaining employment. I find this to be bad advice from a practical level for several reasons. First, even if you don’t get the job you are after, you may be able to build new business relationships at these after hours functions that could help you either get a different job or even find a mentor in the industry. Second, a huge part of an employer’s decision to hire you is whether you will fit into their culture. So your attendance at an after hours event could be the potential employer’s way of seeing how you relate to people on a personal level. In addition, it provides you with a chance to see if YOU like the people you could be working with and/or the clients you could be helping. Even if no job offer materializes after the gathering, your worst case scenario is you lose some time one evening and get to enjoy complimentary food and beverages.

I won’t get into all of the flaws of the article, but, as discussed, there are a few aresa of concern from an employment law perspective. The article does have some good points, such as avoiding discussion of your personal life/problems and not bad mouthing previous employers. On the whole though, there is good and bad advice in there. So, before you rely on something you read online, it may be a good choice to confer with an employment law attorney, a professional career coach, or other individuals who assist with job placement.

Bottom Line: When it comes to interviewing, rule one is be honest. Failing to do so could result in your termination at a later date. Rule two is do not over share or speak negatively about others. Finally, Rule three is be yourself! Don’t pretend to be someone you’re not to get the job. You are interviewing the potential employer as much as you are being interviewed. You may find that the work environment does not mesh with your personal style or that your future co-workers are not your cup of tea. Best of luck on finding and attaining the job you want!

Photo credit to http://www.brianwfreeman.com/bad-internet-advice-abounds/

Reality v. The Pregnancy Discrimination Act

Despite the Pregnancy Discrimination Act being passed in 1978 and the Florida Supreme Court holding that the Florida Civil Rights Act of 1992 includes protection from pregnancy discrimination, women of childbearing age still have to face major hurdles in the workplace.  Women find themselves wondering whether they will be able to find a job when they are pregnant or if their potential employer believes they may become pregnant.  Many women are passed over for promotions either due to intentional stereotypes about a woman's ability or desire to work hard after having a child, or subconscious beliefs that women won't be able to pull their weight at the office once they have children.  Truthfully, many women find themselves spread thin and riddled with guilt--compelled to give 100% to their families while also giving 100% to their careers.  

The Family and Medical Leave Act of 1993 provides that covered employers (those with 50 or more employees within a 75-mile radius) must provide up to 12 weeks of unpaid leave to covered employees due to the birth or adoption of a child.  This is a summary of the law, but the key point is this: even if you are a covered employee working for a covered employer, you may be entitled to 12 weeks of leave, but that leave is unpaid.  That is, unless the employer voluntarily chooses to pay for the leave time or allows employees to substitute out sick or vacation time for FMLA leave.  For many women, taking 12 weeks off to bond and care for their newborn is highly desireable, but simply unattainable.  In a nation where the vast majority of families live paycheck-to-pacheck, 12 weeks without pay is just not an option.  

I've said it before, and I'll say it again--we claim to be a nation that supports "family values."  But when it comes time to back those values up with money and programs to support mothers and fathers, we fall woefully short.  Mothers either lose their jobs, return to work mere days after giving birth to keep their jobs, or go weeks without pay, only to return to jobs where they will forevermore earn less than their male counterparts because they missed out on key stepping stones to promotions.  Fathers who want to take time to bond with their babies also lose out on pay and benefits during leave, and may even suffer from stigma and ridicule from co-workers and management.  As a society, we should be coming together to encourage men to be active fathers and providing support for mothers who are healing physically while caring for one or more newborns.

And, employers, you are missing out, too.  Parents of young children can be huge assets to companies, using their mutitasking skills to bring fresh perspective to the workplace.  And, let's not forget, just because somebody has had a baby, that does not mean that all of their education, training, and experience has evaporated.  Flexible work schedules and supportive paid time off policies may not be mandatory, but such programs may save companies more money in the long run, since the companies will not have to hire and train new employees to fill the roles of departed parents.

If you believe you have been discriminated against because of a pregnancy or pregnancy-related condition, use our website to set up a phone consultation.  Meanwhile, you can check out this article which gives some interesting information on declining birthrates in the U.S. and employment law. 

Appellate Arguments

Potential clients should be wary of a lawyer who says that your case is a "guaranteed winner."  In the law, there is no such thing as a "sure thing."  Judges rule against even the best advocates and juries can be highly unpredictable.  Fortunately, our system of justice allows for an appellate court to review decisions by judges and verdicts by juries.  This process helps ensure that judges are following the law and jury verdicts have not been the result of errors at trial.  

Not all lawyers are litigators.  Even those lawyers who litigate cases on paper are not always the best trial lawyers.  And even fewer lawyers have the opportunity or desire to argue their cases in front of an appellate court.  Litigating, trying cases, and handling appeals are distinct skills.  

Today, May 16, 2018, Thorpe & Thorpe, P.A. attorney Shaina Thorpe will be presenting an oral argument on behalf of one of our clients.  We have already presented our arguments on paper  and today we get the chance to talk with three appellate court judges in Tallahassee about why the judge's decision should be reversed and our client should have her day in court.  While we do not know when the First District Court of Appeal will issue its opinion on the case, we remain hopeful that the appellate court will send the case back for trial.  

In the meantime, you can watch Ms. Thorpe in action via the court's live streaming website.  There are three cases set for argument today, with the first beginning at 10 am.  So click on the link below, select the Third Floor Courtroom option, and keep an eye out for our attorneys.  We work hard for you--through trial and appeal!

http://www.1dca.org/ustream.html    

 

March for Our Lives and the Constitution

All attorneys in Florida take an oath to uphold and defend the Constitution of the United States as well as the Florida Constitution.  As an attorney, I am bound by that oath.  I am starting this entry this way because it seems that a lot of people are taking this past Saturday's March for Our Lives event as an attack on the Second Amendment to the United States Constitution.  That is simply not the case: it is possible to fully support the Second Amendment while at the same time, demand that our elected officials take action to "well regulate" firearms in the United States.

The First Amendment has limitations.  For example, the First Amendment does not give us the right to defame others.  It does not give us the right to make death threats or make statements that would cause physical harm.  The FCC regularly involves itself in determining what "speech" is appropriate for public consumption and at what times.  The moral of the story is that each Amendment is subject to interpretation, regulation, and repeal, if necessary (for example, next time you're having a beer with your friends, please remember that the 21st Amendment revoked the 18th Amendment which established prohibition). 

Our Founding Fathers were wise in many ways, but they could not have predicted the future we live in now.  They could not have foreseen Smartphones and social media.  And yet, as attorneys and citizens, we must now grapple with how the First Amendment interacts with these new technologies. 

The same is true with respect to the Second Amendment.  When the Amendment was drafted, rapid-fire assault weapons did not exist.  Although we cannot say for sure what the Founding Fathers would have done about assault weapons specifically, what we do know is they had the wisdom to understand that weaponry could change over time.  That is why the Second Amendment begins with the words "a well regulated militia."  The intent of the Second Amendment was to ensure that we, the people, would be able to defend ourselves from a tyrranical government.  It was not meant to be a free-for-all where anybody could get their hands on weapons that could shoot up dozens in seconds. 

And so, I, a firm supporter and defender of the Constitution of the United States of America, stood up on Saturday and rallied with those during the March for Our Lives event in Tampa.  For all of the people shot up watching movies, going to concerts, or just out having a fun night out with their friends, my heart goes out to you and your families.  To the parents, family members, and friends who lost loved ones at the school shootings over the years, I can't even begin to imagine your pain and suffering. 

We have failed to "well regulate" guns in America.  We are better than this.  And so, the next march will be to the polls in November.  Don't sit this one out.

Bringing Attention to the Issues #Timesup

At this year's Grammys, many artists used the term "Time's Up" to draw attention to many issues of social importance.  Some of those issues included discrimination, harassment, and inequal pay. Political sentiments aside, we need to continue the national discussion about the fact that many individuals continue to experience harassment in the workplace.  Sometimes it is sexual harassment, as we've seen in a lot of notorious cases of late.  Sometimes it is race-based harassment or even harassment based on religion.  Although discrimination can happen to men, more often than not, discrimination in pay is against women.  Studies show that women continue to earn less than men for performing the same job.  

If you work in the private sector, know that you are free to discuss your wages and benefits with your co-workers.  Many of us were raised with the idea that it is rude or inappropriate to discuss wages with co-workers.  But if you don't have the discussion, how will you know whether you are being paid fairly and equally based on your job duties and performance, or whether you are being paid less than your peers?  We must continue the discussion to trigger the change that's needed.

And for employers, be aware of what's going on in your company.  Audit your payroll, talk to your employees.  Find out what your employees are experiencing and be part of the solution. 

Together, we can move closer and closer to workplaces where people are judged on their performance and not on their gender, race, age, disability, religion, national origin, or the color of their skin.    

“Be the change that you wish to see in the world.” -- Mahatma Gandhi

Florida Minimum Wage Law Change

Under Florida Law, the state minimum wage can increase on an annual basis.  Any increases take effect January 1st.  Therefore, it is critical for employers to know that as of January 1, 2018, Florida's Minimum Wage was increased to $8.25 per hour, up from $8.10 per hour in 2017.  This means that employers will be required to change their minimum wage postings, as well as increase the wages for workers whose hourly rate of pay does not meet the new threshold.  The federal minimum wage remains at $7.25 per hour, but simply meeting that requirement will not shield employers from liability under the Florida Minimum Wage Act and Florida's constitutional minimum wage protections.  So don't wait!  Change those rates of pay and posters today!!! 

Court Temporarily Halts Salary Increase Requirement

Employers who were scrambling to comply with the December 1, 2016 increase to the salary requirement for exempt employees can breathe a little easier, at least for a while.

Earlier this year, the Department of Labor issued regulations which would have increased the minimum weekly salary required for an employee to be exempt from the overtime requirements of the Fair Labor Standards Act of 1938.  Generally speaking, employees are required to be paid time and a half of their regular rate of pay for all hours worked beyond 40 in a workweek.  However, there are exceptions to this general rule.

Three of these are the executive, managerial, and professional exceptions.  They are commonly referred to as the "white collar" exemptions.  People who meet the exemption's requirements are not entitled to overtime pay.  There are three requirements for the exemption: (1) the employee must be paid on a salary basis; (2) the weekly salary must meet the minimum amount set by the Department of Labor (this is currently $455 per week); and (3) the employee must perform exempt duties.

The Department of Labor changed the second prong of that test, requiring the minimum salary amount to go from $455 per week to $913 per week.  The regulation also would have caused that minimum salary requirement to automatically increase every three years.  This change was supposed to take effect December 1, 2016.  

Suffice it to say, many employers, including governmental employers, became concerned about how they would be able to meet the new salary requirement.  Some employers considered paying otherwise exempt employees on an hourly basis and simply paying them overtime.  Other employers, like the states that filed suit in the United States District Court in Texas, realized that the dramatic increase in salary amount would result in budget increases that the states could not fund.  These states argued that the salary increase could cost millions of dollars.  This could result in layoffs and a reduction in services.

The District Court agreed that the states and commonwealths that filed suit (Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah, and Wisconsin), had provided sufficient proof to justify a temporary injunction against the increase.  

In short, at this time, employers are not required to increase the salaries of their exempt employees on December 1, 2016.  Of course, employers are free to set the salaries of their exempt employees above the $455 weekly minimum if they choose to do so.  However, as of right now, employers are not required to increase the salary rate to the $913 per week on December 1, 2016.  

Employers should note that this injunction is temporary.  This means that the injunction could be lifted and the requirement of the increase could return.  However, based on the logic used by the Court and the dramatic impact of the temporary injunction, it would not be surprising to see extensive challenges of the decision, likely all the way up the United States Supreme Court.  You can read the decision of the court here.

Keep tuned in to blog updates from Thorpe & Thorpe, P.A. to learn more about this ongoing issue. 

Defending the Sexually Harassed

Thorpe & Thorpe, P.A. attorney Shaina Thorpe stands up for victims of sexual harassment, even against individuals who threaten to use their standing in the community to undermine the victim.  Ms. Thorpe has filed a lawsuit under Leon County's Human Rights Ordinance and will not be deterred from helping the victim of sexual harassment.  The story will be in tomorrow's Tallahassee Democrat, but can be found online here.