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 https://www.nlrb.gov/poster.

• As of March 2011, the Equal Employment Opportunity Commission, or EEOC, issued regulations that expands employee rights and protections under the federal Americans with Disabilities Act (ADA). The new regulations also reduce the ability for employers to assert that certain conditions are unprotected under the ADA. For further information, go to https://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.
• Employers in Florida can now find it easier to deny unemployment benefits to employees who were terminated due to misconduct. In June of 2011, the Florida Legislature amended the State’s unemployment laws (Fla. Stat. 443.036 et seq.) by broadening the definition of misconduct to include unacceptable behavior that occurs outside of the workplace and during regular business hours. All employers need to show is that the employee was terminated because he or she consciously disregarded an employer’s interest.
• For employers in Florida that have contracts with the State, they must now use a federal E-Verify program to check the eligibility of current and prospective employees. The E-Verify program is offered online by the Department of Homeland Security and is specifically designed to allow employers to check whether an employee or job application is legally authorized to work in the United States.

If you have any questions about how the recent federal and state employment laws will affect your business, you should contact our qualified employment litigation attorney.

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.

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
• Establishing relationships with the employer’s existing customers
• Leaving the employer and divulging trade secrets to a competitor

In addition to the above, Florida courts are also demonstrating a willingness to validate non-compete clauses in favor of employers. According to a recent case issued by a Florida district court, certain types of otherwise unlawful non-compete clauses are now being ruled as valid, enforceable and even assignable by business entities. Specifically, in DePuy Orthopaedics, Inc. v. Waxman, 2012 WL 3138681 (FLA 1st DCA 2012), the First District Court of Appeal of Florida reversed the denial of a preliminary injunction finding that a covenant not to compete was assignable, despite the lack of the standard successor and assign language. As a result, the Waxman court ultimately ruled that the employer was entitled to a temporary injunction given that, inter alia (among other things), he would suffer irreparable injury if the non-compete clause was rendered invalid and would have no legal alternatives had the clause been invalidated.

If you are a business employer facing a lawsuit over the legality of a non-compete clause or require assistance in properly drafting one, you should contact an employment litigation attorney for assistance.

Overall, there are several laws that relate to pregnancy discrimination and leave rights. These include the following:

• Family and Medical Leave Act
• Title VII of the Civil Rights Act of 1964[J1]
• Pregnancy Discrimination Act of 1978
• Florida Civil Rights Act of 1992

Although the FCRA was never amended to specifically provide for claims of pregnancy discrimination, some courts construe it as including these types of claims.

While each of these statutes contains specific requirements for bringing forth pregnancy discrimination claims against employers, most cases typically involve allegations of disparate treatment. Essentially, an employee must prove that her employer treated her unfairly or differently as a direct result of her pregnancy. In response, an employer can raise the following arguments and defenses:

• The employer has never treated any other employee differently, whether due to sickness, disability, pregnancy or any other reason.
• The employer can demonstrate with documented employee records that poor work performance or misconduct – not pregnancy – lead to the employee’s termination.
• The employer has documented procedures in place for disciplining and terminating employees and does so regardless of pregnancy status and other illegal considerations.
• The employer did not know that the employee was pregnant when the alleged disparate treatment occurred.

Employers constantly face the threat of discrimination lawsuits, which can have severe consequences if not properly addressed. It is important to understand the laws that protect employees from discrimination thoroughly, in order to protect your business against claims without merit.

• Demotion
• Withheld promotions
• Decreased wages
• Decreased benefits
• Threats
• Intimidation
• Employer harassment
• Change in job duties (usually that they become more difficult)
• Wrongful termination

Even if an employer has a valid business reason to either discipline or terminate an employee, they nonetheless face the prospect of costly fines and other legal consequences if they cannot prove the legitimacy of their actions. In other words, defending against discrimination claims involving worker’s compensation can be extremely challenging, requiring the assistance of a seasoned labor and employment defense attorney to help vindicate employers of alleged wrongdoing. Through investigating the alleged injury, reviewing an employer’s workplace policies and procedures, as well as examining the events leading up to the allegations, a skilled attorney will build a strong defense from the bottom up and maximize an employer’s chances of obtaining a favorable outcome.

Being an employer is not always easy, and sometimes that means having to either discipline or terminate employees for a variety of legitimate reasons. While some employer-employee conflicts are to be expected – especially in companies with numerous employees – dealing with an employment discrimination case is a serious legal matter. Although the best way to avoid this problem is through compliance, sometimes it just isn’t enough. Employees can and often do file false claims against their employers, which can have severe consequences if not properly addressed.