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.

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.

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.

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

• To protect valuable trade secrets
• To maintain confidential business information
• To preserve relationships with prospective or existing customers
• To defend goodwill associated with an ongoing business or professional practice by way of a trademark, geographic location or marketing/trade area
• To maximize corporate investments in specialized employee training

Overall, a non-compete clause unsupported by any of the above legitimate business interests will be rendered void and unenforceable. Although many employers require employees to sign non-compete agreements pursuant to the aforementioned interests, lawsuits nonetheless ensue. Those that typically prevail in lawsuits arising from non-compete clauses and agreements usually do so under the following circumstances:

• The employer breaches the employment contract
• The employer has no legitimate interest to enforce the agreement
• The employer is overreaching legitimate business interests
• The agreement restricts competition for an unreasonable amount of time
• Alleged confidential information has been disclosed to the public or is readily available to them

Whatever the situation presents, it is crucial to consult with an attorney who has extensive experience representing business clients in many different types of legal matters, including issues arising from non-compete clauses and agreements.