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.

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?



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!

There's an App for That! DOL Creates iPhone App for Employees to Track Hours/Overtime

The Department of Labor announced yesterday in a press release that it has launched its first application for smartphones -- a timesheet app to "help employees independently track the hours they work and determine the wages they are owed."  Yes, that's right.  The DOL created an iPhone app that allows employees to track their hours and calculate the amount of wages/overtime to which they may be entitled.

As you can imagine, this news was lighting up the blog-o-sphere all day, with just about every employment law blogger I follow chiming in on the issue.  Molly DiBianca at the Delaware Employment Law Blog wrote this post, which has screenshots and a good explanation of how the app works.  Perhaps my favorite quote comes from Jon Hyman at the Ohio Employer's Law Blog.  In his post, Jon warns: 

I cannot overstate the significance of this story.  The DOL is getting more and more aggressive in its willingness to help employees prosecute wage and hour violations.  If you do not know whether your wage and hour practices pass muster under the [FLSA], you are sitting on a bomb waiting to detonate.  And, the DOL continues to provide employees with the match to light the fuse.

Jon hit the nail on the head.  As you've heard us say many times before, FLSA wage/overtime claims are everywhere.  This is especially true here in the Middle District, where we have one of the highest rate of FLSA filings in the country.  This latest announcement from the DOL serves as a reminder -- and huge red warning flag -- to employers that these wage/overtime cases aren't going away anytime soon.

What should you do?  Check, double check, then check again all of your classification decisions and time-keeping methods.  If you don't have employees signing off on their timecards, start NOW.  While this new DOL app may give employees another method of keeping track of their time, it is not the end-all, be-all of time-keeping.  The stronger the employer's records the better, and having your employees sign off on their time records may help discredit whatever records employees create in the DOL app. 

FLSA Wage and Hour Lawsuits Still on the Rise

As we've mentioned here before, there has been proliferation of FLSA wage cases filed in the last few years, particularly in the Florida district courts.  In fact, the volume of FLSA claims has nearly tripled in the past 10 years.  According to updated federal statistics, over 5,500 FLSA lawsuits were filed nationwide between March 2008 and March 2009, marking a 7.5% increase over the previous period, and representing the second-highest total on record.

I bring up these staggering statistics because the FLSA affects everyone.  Unlike some of the other employment laws that only apply to employers with 15+ employees (Title VII, ADA), or 20+ employees (ADEA), or 50+ employees (FMLA), and so on, the FLSA applies to employers who have just one employee.  Everyone!  

It is imperative that employers take care to ensure they are in compliance with all parts of the FLSA.  Review employee classifications closely -- make sure you are only exempting employees who truly fit into one of the exempt classifications.  Check into your policies regarding on-the-clock and off-the-clock time, and make sure you are properly applying the rules on compensable time.  Set up complaint procedures and investigation guidelines.  Put a "Salary Basis Policy" in your employee handbook if you do not already have one. 

While these actions are neither exhaustive nor a complete defense to liability, taking each and every proactive approach to limit liabiity is a wise move these days.  Do it now, before your company becomes a statistic.


DOL Issues Fact Sheet About FLSA Breastfeeding Breaks

The Department of Labor recently issued a fact sheet on the break time requirement nursing mothers, which I discussed in a previous post.  As a brief review, the Patient Protection and Affordable Care Act included a provision amending the Fair Labor Standards Act to require employers to

"provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk."

The fact sheet clarifies the effective date, which was March 23, 2010.  It also addresses issues such as time and location of breaks, covered employers, and compensation for the nursing mothers. 

Of note for many of our readers is the exception for employers with fewer than 50 employees:  if compliance with the provision would "impose an undue hardship," companies with fewer than 50 employees are exempt.  Exemption status will be determined on a case-by-case basis, with consideration given to the size, financial resources, and structure of the business, among other things.

View the fact sheet by downloading it here

FLSA Amended to Require Breaks for Nursing Mothers

As part of the recently enacted Patient Protection and Affordable Care Act ("PPACA"), the Fair Labor Standards Act has been amended to require breaks for nursing mothers.  Effective immediately, employers must now provide "reasonable" breaks for nursing mothers to breastfeed or express breast milk.  The amendment does not define "reasonable," nor does it specify the length or frequency of the required breaks.  The reasonable breaks, which must be provided for up to one year after the child's birth, can be unpaid breaks.

Additionally, employers must also provide a private place, other than a restroom, that is "shielded from view an free from intrusion from coworkers and the public." 

Many states already have laws related to nursing in the workplace.  Florida, however, is not one of them.  While Florida Statute 383.015 allows women to breastfeed in any public or private location, no law in Florida specifically required an employer to offer breaks for nursing mothers.

Expect the Department of Labor to issue guidance on this issue shortly.  Until then, employers must take care to design appropriate break policies to ensure compliance with this new FLSA requirement.

FLSA, Severance Agreements, FMLA, and more: New Issue of HFSH Employment Law Update Online Now

The Employment Law Practice Group is pleased to provide the February 2010 edition of the Employment Law Update, which features the following articles:

  • Did you know that Florida ranks second only to California in the number of wage and hour suits brought against employers?  Robert Shearman provides employers with a timely update and advice in "Taking Care of Business and Working Overtime: FLSA Lawsuits on the Rise."
  • Whether an employee is terminated because of a depressed economy or poor performance, severance agreements are important for employers and employees alike. John Agnew explains in "Why a 'Golden Parachute' Can Be As Good For The Employers As It Is for the Employee, Especially in Difficult Economic Times."
  • In the article "Amendment to FMLA Expands Military Family Leave," Joanne Lashey explains how FMLA policies should be reviewed and revised to comply with changes to exigency leave, contingency operations and caregiver leave requirements.