Does your employee handbook comply with the changing laws and the needs of your business?

Although annual handbook auditing is not required, it may be a good idea to have legal counsel review your employee handbook if it has not been done in a while.  2016 may be a good year to have your employee handbook reviewed for compliance due to several changes in the law.  These changes are discussed in this article.  

If your employee handbook has not been reviewed for compliance in at least 2 years, if the size of your workforce or the amount of your sales has changed significantly in the last year, or if you just have some employment law questions, give us a call to set up an appointment.  

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.  

EEOC Sees Discrimination at Lakeland Eye Clinic

Title VII, the federal anti-discrimination, harassment, and retaliation law in employment, does not explicitly name gender identity or homosexuality as protected classes, but broadly prohibits sex discrimination.  Over the years, sex discrimination has been interpreted to include pregnancy-based discrimination, as well as sex stereotyping.  However, sexual orientation discrimination has typically not been held to be prohibited by Title VII, but that may be changing with the help of the EEOC.  

The EEOC is the federal administrative agency responsible for the investigation and enforcement of the provisions of Title VII and other anti-discrimination laws.  In 2012, the EEOC announced that one of its objectives over the next few years would be to address "emerging and developing issues" including "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply."  

The critical phrase is "as they may apply" because the EEOC must recognize that the statuses of being transgendered or homosexual are not directly covered by the language of Title VII.  Thus, what the EEOC has done to effectuate its policy goal is take the position that discrimination on the basis of one's transgender or homosexual status violates Title VII because the traits affiliated with such individuals fall into the category of gender stereotyping.

 Gender stereotyping has been recognized as covered by Title VII since the United States Supreme Court's 1989 holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   In the Hopkins case, a female employee suffered discrimination due to management's perception that she did not fit the "traditional" profile of femininity in her appearance and attitude.  The Court held that discrimination on the basis of such sex stereotyping was prohibited under Title VII.  The interpretation of Title VII in the Hopkins case is critical to the EEOC's move to enforce the rights of LGBT individuals in the workplace. 

In 2014, the EEOC filed suit on behalf of a transgender woman who worked for a Lakeland, Florida eye clinic.  The employee was transitioning from male to female, and began to present at the workplace as a female.  Although her work product remained satisfactory, she was fired.  The EEOC alleged that the employee was unlawfully fired on the basis of sex, in that she did not conform to the employer's sex-based stereotypes.  

A settlement was approved in April 2015, with Lakeland Eye Clinic agreeing to pay $150,000 to the terminated employee. According to the EEOC, this case was one of the first two to be filed where the employee's transgender status was the protected class.  

While the EEOC does not make law, employers should definitely take note that the EEOC is actively pursuing the rights of LGBT employees.  Although a strict reading of Title VII does not indicate homosexuality or transgender status as protected classes, there is court precedent that could support such claims under the umbrella of gender stereotyping.  Therefore, as with any employees, employers are best served by making employment decisions on the merits of the employee's work and not on the employee's gender-based attributes.   

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

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.

DOL Pushes for Paid Family Leave

Sometimes, we forget that the United States is only one of three countries in the world that does not offer paid maternity or paternity leave.  Despite many preaching the importance of family values in American culture, we have no nation-wide laws that provide paid leave to individuals working in the private sector upon the birth or adoption of a child.  The closest we come to providing help to new parents is under the Family and Medical Leave Act of 1993 ("FMLA").

However, the FMLA DOES NOT guarantee paid leave to employees.  Rather, it only guarantees up to twelve weeks of unpaid leave for qualifying employees who work for covered employers.  So, even assuming an individual has worked for at least a year for an employer and worked 1250 hours in that year, if the employer does not have at least 50 employees in a 75-mile radius, that employee does not benefit from the protections of the FMLA.  As a result, employees who work for small to mid-size businesses or individuals who work as independent contractors have no FMLA-based leave rights.

Of course, nothing stops any employer from voluntarily providing unpaid or paid leave to its employees.  Some private sector employers provide paid leave for a few weeks or partially-paid leave over a longer period of time.  

The Department of Labor is hoping to change the way Americans treat our new parents, and urging us to essentially put our money where our mouths are.  Perhaps, in time, we will join almost ever other country in the world in providing the security of a paycheck to new parents, who already have the enormous task of raising a newborn in front of them.

No Charity Shown for Pregnant Employees by United Bible Fellowship Ministries

Although United Bible Fellowship Ministries claims its vision is to "be a visible, working, reflection of the body of Christ throughout the Houston area and the world by loving and glorifying God, serving others in love, and reaching out to those in need," that vision apparently doesn't include employing pregnant women.   

Sharmira Johnson, a former employee of the 501(c)(3) organization, was discharged after she became pregnant.  However, unlike many cases of pregnancy discrimination, which rely on circumstantial evidence, Ms. Johnson's claim rested on United Bible's written policy against pregnancy during employment.  

In fact, when Ms. Johnson informed her boss of her pregnancy, her boss gave her a memo entitled "Relief of Duty Due to Pregnancy."  U.S. Equal Employment Opportunity Commission v. United Bible Fellowship Ministries, Inc., 4:13-cv-02871 (S.D. Tex. May 19, 2015).  That memo further stated "in accordance to the Policy of Pregnancy in the Workplace, will be relieved of duty pending your pregnancy and that upon your delivery you will be eligible for rehire for any direct care position we have available at that time."  Id.  Ms. Johnson filed a charge of discrimination alleging sex and pregnancy discrimination, after which the EEOC pursued legal relief on her behalf.  

The case ended up pending in the United States District Court for the Southern District of Texas, where, after a bench trial, federal judge Vanessa D. Gilmore determined that United Bible violated the law.  The court awarded Ms. Johnson back pay as well as punitive damages, for a total of almost $75,000.  You can read more about the case here.

Although this case is somewhat unusual in the sense that most employers do not have policies that are so blatantly contrary to the law, it does serve as a good reminder for employers to periodically review their policies with legal counsel to ensure legal compliance. 

Walking the Fine Line: Drafting NLRA-Compliant Employment Policies

On March 18, 2015, the National Labor Relations Board's General Counsel issued Memo GC 15-04, shedding at least some light on the issue of what employment policies are permissible under the NLRA.  The last few years have seen the NLRB cracking down on employers with employment policies which reasonable employees would construe as limiting their right to engage in protected, concerted activity.  

The General Counsel speaks through examples, and through those examples, at least points out verbiage that the NLRB would find unlawful.  For example, the following policy language was held to be violative of the law:

  • Language prohibiting employees from discussing "customer or employee information" outside of work;  
  • Language requiring employees to "be respectful to the company, other employees, customers, partners, and competitors;" and
  • Language stating "[m]aterial that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. ..."

Most employers are unlikely to see the danger in including the above statements in their handbooks until a charge has been filed against them by a current or former employee.  Furthermore, the parameters of lawful and unlawful employer policies are always being evaluated and better-clarified.  

In short, because this is a developing area of law, where it can be hard to identify potentially unlawful language, it can be difficult for employers to know how to comply. This is why it is crucial to have an attorney skilled in this area of law help you draft and evaluate employee policies.