Florida's Minimum Wage Set to Increase in 2012

Florida's minimum wage is set to increase to $7.67 starting January 1, 2012.  This 36-cent increase follows on the heels of a 6-cent increase (to $7.31) set in June 2011.  The minimum wage for tipped employees will also rise 36-cents in the new year, from $4.29 to $4.65.

Employers should make sure all employees are paid appropriately beginning January 1.  Additionally, employers must post the proper Florida and federal minimum wage posters.  You can download the 2012 Florida poster in English here, and in Spanish here.  The federal minimum wage poster can be downloaded here.

NLRB Postpones Notice Requirement

As of today, the National Labor Relations Board ("NLRB") reversed course on its new notice requirement, which I have discussed in prior posts (here and here).   The NLRB has pushed the posting requirement back to January 31, 2012 to allow for "enhanced education" and "outreach to employers."  You can read the press release here.

Though the NRLB just publicized its decision to delay the posting requirement today, there is already speculation about the reasons for the delay.  It's no secret many businesses were unhappy with the new posting requirement, not to mention a lawsuit attempting to block the posting requirement is currently pending in federal court.  Whatever the reason, all workplaces can put the poster on hold for now. 

I'll continue to post updates as this story unfolds.

NLRA Poster Now Available

In follow up to my post on the new NLRA Employee Rights Notice requirement, the NLRB has released the official poster on its website.  Click here to download a copy. 

The posting requirement is effective beginning November 14, 2011.  Remember, this applies to most private employer, regardless of whether or not the workplace is unionized.  If you have questions about whether the new notice requirement applies to you, please let us know.

Miss Blu's Workplace Policy #104: Texting Policy

*Note to readers:  We've had multiple requests to bring back Miss Blu, so here we go!  From now on we will feature a Miss Blu Employee Handbook Policy every other month. 

For those of you who have asked, I am not Miss Blu.  As her bio states, Miss Blu is the alter ego, if you will, of an actual HR professional here in Southwest Florida.  I've had a few guesses as to Miss Blu's identity, but so far no one has been close.  Besides, I've been sworn to secracy, so I'm not going to spill even if you're right! 

We start with a Miss Blu policy I'm sure anyone with teenagers or other avid texters can appreciate -- text speak!  Hope you all enjoy.  Suzanne*



F$om: Miss Blu* n HR

2: ees

Re:  Texting Policy

U can't text ur boss, k? not allowEd.  :(  u will b fiiiired if u do per ceo eff now.  C HR w ?s, k?

*Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida. You can find her complete biography here.

New NLRA Notice Requirement for Employers

Last week, the National Labor Relations Board issued a Final Rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act.  The Final Rule, entitled "Notification of Employee Rights Under the National Labor Relations Act, contains a long list of employee rights, and many examples of unlawful employer conduct. 

The notice requirement takes effect November 14, 2011.  Copies of the notice will be available on the NLRB's website beginning November 1, 2011.  The notice should be posted in the location where employers post other required notices.  Additionally, if employers typically post workplace rules on an internet or intranet site, the employer must also post the notice on that site. 

You're probably thinking, "Why do I care, we don't have a union," right?  Wrong!  This new posting requirement applies to both union AND non-union employers subject to the NLRA, which means it covers just about every private employer.  There are limited exceptions, including agricultural, railroad, and airline employers, but it applies to the vast majority of workplaces.

The NLRB has posted a helpful Q&A on the Final Rule, which can be found here.  Be sure to post the notice no later than November 14, 2011, as failure to properly post the notice may constitute an unfair labor practice under the Final Rule.  If you have questions about the notice or whether you're required to post it, please contact counsel to discuss.

Interesting Discussion: Which Employment Law Would You Vaporize?

Two of my favorite employment law bloggers, Jon Hyman at the Ohio Employer's Law Blog, and Daniel Schwartz at the Connecticut Employment Law Blog, have weighed in on the following question, first posed by Walter Olson at Overlawyered:

If I could press a button and instantly vaporize one sector of employment law....

Olson says age discrimination.  According to Olson, "Its beneficiaries are among those needing least assistance. The main cash-and-carry effect of age-bias law is to confer legal leverage on older male holders of desirable jobs, such as managers, pilots, and college professors, who by threatening to raise the issue can extract ampler severance packets than might otherwise be offered them." 

Schwartz would rebuild (as opposed to vaporize) leave laws. Apparently in Connecticut employers have to deal with no fewer than six leave laws (yikes!).  Schwartz says, "Imagine, for example, an employee who injures his back while on the job, perhaps suffering a permanent partial disability. Six laws may cover what type of leave and time off the employee is entitled to. That seems inefficient and ineffective."

Jon Hyman would vaporize the Fair Labor Standards Act.  "The FLSA needs to go because compliance is impossible...I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices...Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage."

I am with Jon 100%.  While I would obviously never advocate for employers paying unfair wages, as a management side employment lawyer I despise the FLSA for my clients.  It must be the most plaintiff (and plaintiff lawyer) friendly law on the planet.  There are so many complicated requirements, classifications, exemptions, etc employment lawyers can barely get them straight.  How do you think that struggling small business owner down the street who is truly doing his best to do the right thing, but made a simple, honest mistake on record-keeping or classification or calculating overtime feels?  That honest mistake could literally put that small company out of business once the process server comes knocking with a wage and hour lawsuit.  Unfortunately, I've seen it happen.

Even when employers do everything right (which, because the law is so complicated and detailed, is admittedly rare), it's too expensive to fight the case.  It's also too risky to fight it, since one tiny slip up could result in a large attorneys' fee award for the plaintiff. 

As I've mentioned in previous posts, here in the Middle District of Florida employers are all too familiar with these cases, as we have one of the highest FLSA filing rates in the country.  We get calls from recently-served clients, both new and old, all the time.  Though we are obviously grateful for the work, I can't help but wince everytime I receive those calls.  One of the first things I tell the client during the initial conference is that I feel like the grim reaper -- there really isn't a bright side for the employer in these cases.  More often than not the goal is to get out as quickly and cheaply as possible, even when the employer believes it has done everything right.  And that, to me, means something needs to change. 

What about you -- which sector of employment law would you vaporize?



Henderson Franklin Launches Immigration Law Blog

I am pleased to announce the launch of Henderson Franklin's third blog, the Florida Immigration Law Blog.  Lead by Tulio Suarez, a board certified immigration attorney, with contributions from Amanda Brock and Bruce Sands, the blog will focus on all aspects of immigration law, from I-9 compliance issues to visas, ICE audits to E-Verify, and much more.  I think it will be a great resource for readers of this blog, since I know many of you deal with immigration issues on a regular basis.  Definitely check it out! 

I also wanted to mention that I have some exciting things in the works for Southwest Florida HR Law & Solutions.  I've been somewhat MIA on here the last couple of months due to an explosion of work that's been keeping me busy, but I haven't forgotten about the blog.  Over the next couple of weeks I'll be launching a new regular feature, bringing back Miss Blu, and following up on a few things that have happened recently in the employment law/HR world.  

I want to thank all of my readers for sticking with me (we recently shattered our previous hit/visit record, so I know you're there!), and invite you to share any suggestions on features you'd like to see or topics you'd like me to cover.  Please do not hesitate to send an email or give me a call with your ideas -- I'd love to hear from you!

Wal-Mart v. Dukes: Supreme Court Rejects Giant Class Certification in Gender Discrimination Case

Unless you've been living under a rock this week, those in the employment law/human resources field have inevitably heard about the U.S. Supreme Court's decision in the Wal-Mart v. Dukes case.  The decision, which was handed down Monday, reversed the Ninth Circuit's certification of a class of approximately 1.5 million female employees claiming gender-based pay/promotion discrimination.  Since I'm a couple of days behind the curve (I haven't been under a rock, just busy!), and since so much has already been written about this decision, instead of reinventing the wheel I decided to highlight points from a few of my favorite posts on the issue.

In Wal-Mart v. Dukes:  What the Class-Action Decision Really Means for Employers, Dan Schwartz of the newly-revamped Connecticut Employment Law Blog gives an easy-to-understand analysis of how the decision may impact employers.  In a nutshell, Dan believes the decision stands for the proposition that a "mega-class action" will have difficulty proceeding absent a very specific and tangible policy or practice of discriminating against a particular class of workers.  He also gives a couple helpful pointers.  I couldn't agree more with his first "takeaway" -- if your company's policies and enforcement mechanisms aren't in top notch shape, fix them now! 

Charles C. Warner of Porter Wright's Employer Law Report gives a very thorough review and legal analysis of the decision in Wal-Mart v. Dukes:  Supreme Court Rejects "Expansive" Gender Bias Class Action in Absence of "General Policy of Discrimination."  For those of you interested in the details of the case, including its history, procedural posture, and each side's arguments, this is the post for you.

In The 7 Key Points for Employers from the Supreme Court's Wal-Mart v. Dukes Opinion, Jon Hyman of the Ohio Employer's Law Blog gives a great breakdown of important points employers should take away from the decision.  I particularly like the way he sums it up:  "Dukes means that corporate America can exhale a huge sigh of relief--a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles."  Jon is right--this decision was a clear win for employers in a climate where employee-friendly laws and rulings are all the rage.  Even better than this quote, though, is the follow up Jon did today in the brilliantly-titled Wal-Mart v. Dukes Does Not Equal Barefoot and Pregnant.

How can you not click through to a post with that title?  In response to what some are basically calling an assault on women's rights, Jon explains,

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

He's right (again).  I'm a woman, and I don't take offense to this decision at all (yes, yes -- I am a management-side employment lawyer, but I am still a woman, you know!).  The Supreme Court simply isn't going to allow over-zealous plaintiff lawyers to lump literally millions of people together in one action and allow them to recover damages without having to prove their own individual set of facts and damages.  Nothing in Dukes will prevent women from bringing actions for gender discrimination, and it doesn't stifle or set "us" back in any way.  Let's not get caught up in dramatics and lose sight of what the decision is versus what it is not.  To quote Jon yet again, "Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination."

Florida's Minimum Wage Increase Effective June 1

Florida's minimum wage will increase 6 cents to $7.31 per hour tomorrow, June 1, 2011.  Tipped employees (those employees who are eligible for the tip credit) will also see an increase of 6 cents, to $4.29 per hour.  The increase, announced by the Agency for Workforce Innovation earlier this month, is described in detail in the Agency's press release.

Florida employers must post the appropriate minimum wage notices.  The English version can be downloaded here.  The Spanish version can be downloaded here.  Please note that you must also post the federal minimum wage notice.  It can be downloaded here

Employers should act immediately to ensure they are in compliance with the new Florida minimum wage increase.  As you've heard me say many, many times before, FLSA wage lawsuits are all the rage, especially here in the Middle District.  If you fail to pay your employees proper wages, I can practically guarantee it won't be long until a process server comes knocking on your door.  FLSA lawsuits almost never end well -- or cheaply -- for employers.  If you have questions, please do not hesitate to ask.  Trust me when I say you're better safe than sorry!

ADAAA Regulations Effective Today

The final regulations implementing the Americans with Disabilities Act Amendments Act ("ADAAA") are effective today, May 24, 2011.  As you probably know, the new regulations highlight the ADAAA's broader definition of disability.  This means more individuals with be considered disabled, thus qualifying for protection under the ADA.  The focus now will likely be on the accommodation process, instead of whether someone qualifies as disabled under the regulations.

Vicki Sproat of our office prepared a newsletter highlighting important parts of the new regulations, which we e-blasted to our subscribers last month.  If you missed it, you can download a copy here.