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Articles Tagged with Florida Employment And Labor Law

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In the United States, federal and state employment and labor laws continue to evolve on regular basis.  As a valuable resource to his clients, our office is providing the following summary of the most recent amendments affecting Florida employers on both a federal and state level.

Federal Amendments

  • Recently, the National Labor Relations Board, or NLRB, issued a new rule requiring all employers that are subject to its jurisdiction to provide written and electronic notice to employees of their rights under the National Labor Relations Act.  However, a federal circuit court has temporarily suspended the new requirements until all outstanding issues have been resolved.  There has been no deadline posted for when the new NLRB’s notice requirements will go into effect. For more information, go to
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Over the past few years, the Obama Administration has been heavily cracking down on employers who hire illegal aliens, making it extremely risky for companies to employ undocumented workers.In 2012, the Department of Homeland Security (DHS) ordered numerous companies to provide them with their employment records for review and inspection.  While these “silent raids” have not been publically announced, a spokesperson from Immigration and Customs Enforcement (ICE, an agency of the DHS) confirmed that as of the end of March 2012, more than 475 companies of all types have been asked to turn over their employment eligibility forms and other documents for audit purposes.  Although the ICE does not publically identify businesses that are under investigation, they assert that no industry is immune from government scrutiny.

Ever since 2009, the Obama administration has issued hundreds of millions of dollars in penalties and criminal fines to corporations that were caught hiring illegal aliens.  For example, the ICE sentenced a Miami subcontractor to almost two years in federal prison for employing and concealing undocumented workers.  Another business owner in Virginia received a 30-month sentence in federal prison for conspiring to harbor illegal aliens. Lastly, a furniture storeowner in California received hefty fines and criminal penalties for employing illegal workers and then rehiring them after the ICE completed its audit.

Despite the more recent crack-down on hiring undocumented workers, the Illegal Reform and Control Act (ICRA) has since 1986 made it illegal for an employer in the United States to knowingly employ and/or conceal illegal aliens or who fail to properly complete I-9 forms for employees.  Under the ICRA, employers must act in good faith when hiring workers, but will not be subject to fines or criminal punishment if an employee provides convincing, but false documentation as to his or her citizenship status.

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Not surprisingly, employers in Florida and across the United States admit to reviewing the social networking profiles of prospective and current employees. Despite the laundry list of potential ethical and legal implications raised by opponents, it has become a common practice in corporate America.  However, several situations making headlines in this regard relate to employers who have surpassed ethical guidelines by actually requesting the Facebook passwords of employees and job applicants.  Not only does this violate federal and state privacy and employment laws, it has influenced some states to completely ban the practice altogether.

Many people who criticize employers for requesting Facebook and other social media website passwords claim that this practice is no less egregious than asking for the keys to your home or car in order to go through your personal belongings.   In response, the U.S. Department of Justice (DOJ) has indicated that it is a federal crime to enter social media networking sites in violations of their terms.  Yet, the DOJ maintains that it is not a violation of federal law if current or prospective employees willingly disclose their social media site passwords. Notwithstanding,  privacy advocates maintain that the practice transcends moral and ethical bounds because many job applicants who are desperate for employment may feel that they have no choice but to provide employers with their passwords.

At this time, the State of Florida has not directly spoken to the issue at hand however, other states such as Maryland and Illinois are moving towards banning this form of employee screening.  Regardless, it is highly recommended that Florida employers take precautions when asking for potentially sensitive information from current and prospective employees.  It is also suggested that employers refrain from requesting website passwords until the legislature and court systems have clarified their stance on the issue.

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DePuy Orthopaedics, Inc. v. Waxman

Under common law, non-compete clauses and agreements were generally rendered void and unenforceable as contrary to public policy and as unlawful restraints on trade.  However, over the past several decades, the Florida Legislature has begun to loosen the reins on employers in allowing non-compete agreements to stand.  Although earlier state laws greatly restricted the use of non-compete agreements, Section 542.335 of the Florida Statutes was drafted with a specific legislative purpose in mind. It allows employers to use non-compete clauses to prevent employees from the following:

  • Obtaining sensitive trade and business secrets
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A covenant not to compete refers to a clause in a contract where an employee of a company agrees not to pursue a similar profession or trade in competition with a current or former employer.  Also referred to as non-compete clauses, these covenants can be difficult to enforce, especially if an employee alleges they were coerced into signing an agreement containing these restrictions.   Legal issues generally arise in this regard when an employee either leaves or is terminated from one position and then goes to work for a competing employer, or seeks business from his or her former employer’s customers.  Litigating non-compete clause violations can be time consuming and very costly for all parties involved, especially the aggrieved employer.   Moreover, these lawsuits are often complex, multi-faceted and may include claims raised by several different parties.

Florida law provides that non-compete clauses and agreements can be enforced pursuant to the following legitimate business reasons:

  • To protect valuable trade secrets
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