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.

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.

Key Change to Mixed Motive Claims

Years ago, the Supreme Court acknowledged the existence of "mixed motive" claims of discrimination.  These are claims where although a discriminatory motive may be one reason for an employer's actions, there are other, nondiscriminatory motives at play.  For example, the evidence could show that an employee's gender played a role in an employer's decision to terminate the employee, but the employer could win the case on the theory that it had three other non-gender-related reasons for firing the employee. 

However, on February 22nd, the Eleventh Circuit Court of Appeals ruled that in these "mixed motive" cases, if the employee can show that she or he experienced an adverse employment action (such as termination) and that a protected characteristic (such as race or religion) was a motivating factor for the decision, the case can survive summary judgment.  Because the Eleventh Circuit is the federal appellate court whose decisions are binding on Florida's district courts, this decision will have an impact on employees and employers in Florida.

In short, it is no longer sufficient for an employer to identify one or two neutral reasons for its actions to avoid a possible jury trial in a "mixed motive" case based on circumstantial evidence.  Practitioners would be wise to familiarize themselves with the decision in Quigg v. Thomas County School District et al., Case No. 14-14530 (11th Cir. Feb. 22, 2016)(available here), as it may make the difference between choosing to settle a case and proceeding with litigation.

An "expert" before it was cool

Prior to the decision of a federal judge last month, only those attorneys who were Board Certified by the Florida Bar, such as Shaina Thorpe, could claim they were "experts" or "specialists" on their websites.  But the District Court held that such restrictions on attorneys' rights to call themselves "experts" or "specialists" violated the First Amendment to the United States Constitution.  But what does this decision mean for Florida citizens?

Before this decision was issued, people seeking an attorney could rely on the fact that an attorney who called himself or herself an expert had a certain degree of specialized knowledge and experience in his or her chosen field.  There were standards put in place by the Florida Bar that made it possible for citizens to determine that an "expert" had been vetted by the Bar, and wasn't just calling him or herself an expert based on his or her own belief.  But with the District Court's decision in place, people seeking attorney assistance should be cautious in selecting an attorney who is best suited to meet their legal needs.

Now that attorneys can deem themselves "experts" or "specialists" on their websites without being Board Certified, many attorneys are likely to start using those terms to gain additional credibility.  We are not saying that attorneys who are not Board Certified are unable to provide excellent legal services.  Rather, we at Thorpe & Thorpe, P.A. are encouraging members of the public to think carefully about their choice of an attorney.  Without the limitation on the use of "expert" or "specialist," it is more important than ever for individuals to research attorneys they are considering using.  LinkedIn profiles, Avvo profiles, AV ratings, professional recognitions, firm websites, and testimonials can provide good information to those considering hiring an attorney.

Attorney Shaina Thorpe has been Board Certified by the Florida Bar since 2014 in the area of Labor and Employment Law.  As such, she has met the high standard set by the Florida Bar to gain the designation of Board Certification, including peer review, proof of experience, additional legal education in the field, and passage of a thorough exam.  She is proud to say she is an expert in the field--before it was cool.

So long, Roz?

The Florida Supreme Court has directed the Florida Bar to adopt rules that would prohibit certain lawyer referral services, and could put an end to companies like 1-800-ASK-GARY and 1-800-411-PAIN.

Under article V, section 15 of the Florida Constitution, the Florida Supreme Court has "exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted."  As a part of the process of regulating attorney conduct, the Florida Bar proposes rules that address attorney conduct to the court for approval.

In its September 24, 2015 ruling, the court rejected the recommended rule from the Florida Bar, and essentially held that the rule did not go far enough to protect the citizens of Florida from the harms that can come from referrals to attorneys that originate from non-lawyer-owned referral services, such as 1-800-ASK-GARY and 1-800-411-PAIN.  The court noted that some of these non-lawyer referral services may disproportionately target racial minorities.

The court discussed the potential pitfalls that could come from the referrals, and cited to a specific instance where an individual from Kentucky was flown down to Florida to receive treatment that her providers in Kentucky believed actually made her condition worse. The court noted that there could be significant detriment to injured parties who are not familiar with their legal rights and with the medical benefits available to them.   

The court also discussed the Florida Bar's Special Committee on Lawyer Referral Services' findings and reviewed a newspaper article from a South Florida periodical.  As a result of this information, the court recognized that the public interest would best be served by having stricter prohibitions on non-lawyer-owned referral services.  The court then ordered the Florida Bar to propose a new rule on this issue by May 24, 2016.

The full court opinion can be found here.  Thorpe & Thorpe, P.A. encourages everybody to review their potential lawyer's skills and experience and make their own decision.  

Attorney Shaina Thorpe Selected As a Super Lawyers Rising Star for 2015

Shaina Thorpe has been selected to the 2015 Florida Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Wrong Way Drivers a Danger to Tampa Commuters

Wrong way driving seems to be a phenomenon that is unfortunately too common in the Tampa Bay area.  In 2014, there were at least four incidents of drivers caught driving the wrong way on some of the area's thoroughfares, including I-275.  In one extremely sad case, in September of 2014, three people were killed in a wrong way driving-related accident.  But that was not the last of the incidents.

On April 12, 2015, two separate individuals were stopped by the Florida Highway Patrol for driving the wrong way on I-275.  One of the drivers was arrested for DUI.  The second driver caused two other drivers to get into accidents trying to avoid his oncoming car. 

While law enforcement officers certainly help avoid the potentially fatal consequences of wrong way driving by catching the offenders before anyone is injured, not all offenders are caught.  In fact, one of our own attorneys witnessed a wrong way driver driving down the incorrect side of US-41 just this past weekend.  Fortunately, no one was injured, but the driver seemed to get away without being caught by law enforcement.

These stories of wrong way drivers and their victims should serve as reminders to always pay attention on the roads, to be prepared to take safe, evasive action if you encounter a wrong way driver, and to never drive while intoxicated.  Remember, if you or someone you know is involved in a wrong way driving-related crash, the attorneys at Thorpe & Thorpe, P.A. are here to help.