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.

Sexual Harassment at Texas Roadhouse Costs Management Company $1.4 Million

As we know, gender discrimination and harassment draws a concern for not only the employed adults in the workplace but also for the minors. Nonetheless, these situations are critical should be properly treated by high-level authority, but according to a recent case filed by the EEOC against Texas Roadhouse Restaurants, that was not so.

According to the EEOC's lawsuit, a manager of a restaurant in Columbus had harassed women and even teen girls working in the front-of-the-house positions. The underlying issue is that although the incidents were reported to high-level authority, they were not addressed. It was not until video surveillance providing evidence of the harassment taking place on one high school girl that action was taken.

Therefore, for months the harassed teenager could only rely on her manager to fix the situation.  The problem was the manager was the individual responsible for the harassment.  Ultimately, the employees had the courage to go to the EEOC to file a charge of discrimination and pursue their legal rights.

As a result of the employees' decision to stand up for themselves, the company was required to provide 1.4 million in monetary relief to the harassment victims. Additionally, the company cannot rehire the offending manager. To better ensure that these offensive acts do not occur in the future, the decree also requires that the company must provide training to all employees on discrimination and retaliation. You can read more on this matter here.

If you are a victim of sexual harassment, do not be afraid to report the offender. It is your right to work in a safe environment. If you decide you want to take action against retaliation, our attorneys at Thorpe & Thorpe, P.A. will work to protect your rights.

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.

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