Published Articles

Analysis of rules changes, new laws or changes to existing laws, our attorneys have written and published on myriad topics in Labor & Employment law.

Miami associate Maria Alfaro digs deep into the use of Artifical Intelligence (AI) and possible pitfalls for employers as they use personality tests, video interviewing, and resume screening.

"Approximately 64% of AI use is directed toward talent acquisition, and the number of companies utilizing AI is expected to keep growing. While the efficiency of AI in assessing numerous job candidates and offering impartial consideration at lower costs is appealing, key stakeholders in the AI sector are raising concerns about the possibly biased decision-making processes of AI. Accordingly, 'several law firms throughout the country are preparing for lawsuits related to AI hiring discrimination,' particularly for disparate impact claims."

Maria's full article describes different ways AI can lead to EEOC and ADA claims against organizations and some measures to help keep possibles claims at bay.

York Flik's commentary on decisions to make before onboarding summer interns appears in the May 09, 2024 Daily Business Review.

Excerpting from his an article that also includes pay issues,

In order to minimize your legal exposure and maximize the chances your unpaid internship program will be deemed primarily for the intern’s benefit, we recommend taking the following measures:

  • Create a Position Description
  • Coordinate With School/College
  • Put It in Writing
  • Conduct Orientation
  • Use Nondisclosure Agreements

Click here to get the details for each of the above measures and others outlined in the article.

Tampa Associate, Melanie Matamoros Cruz, outlines the effects on private employers of the recently passed Senate Bill 1718.

"Florida SB 1718 heightens the requirements for how Florida employers must verify the employment eligibility of new employees. SB 1718 requires a private employer with twenty-five or more employees to use the federal E-Verify program to verify a new employee’s eligibility to work if hired on or after July 1, 2023."

Check out further details in the January, 2024 issue of The Checkoff.

For even more information or further guidance, call your Allen Norton & Blue attorney, today.

Susan Norton, Shareholder in the Miami office, and Melanie Matamoros Cruz, Associate in the Tampa office, author an article in the Jaunuary 11, 2023 Daily Business Review outlining common mistakes employers make in their employee handbooks. They suggest employers review their handbooks as they ring in the new year.

"For most employees, other than the obligatory posters which are frequently ignored, the handbook is the only legal touchpoint they have regarding their rights and responsibilities. Businesses should take a hard look at these important legal road maps to ensure they are not committing these six common mistakes."

Read the entire article by following this link.

J.K. Keller responds to the oft asked question in the September 28th, 2022 edition of the Orlando Business Journal, even as Hurricane Ian bears down Florida's west coast and threatens much of Florida's interior.

"One workplace concern that is an unpleasant reality employers must grapple with is the potential of gun violence in the workplace. In 2016, shootings accounted for 394 or 79% of all workplace homicides in the United States. A comprehensive workplace safety plan should also address how to identify employees at risk of perpetrating workplace violence and how to utilize threat assessment practices when faced with incidents at work."

Follow the below link to read the full article:

Alec Baldwin Shooting Puts Workplace Safety in the Spotlight

Read the full article here.

Click here to open a copy of the DBR article.

Cyberattacks Surge During the Pandemic and So Does the Potential for Liability

"While the Commission has outlined its goals of eliminating discrimination and reducing litigation costs, it remains to be seen whether the proposed regulations will accomplish these objectives or whether they will merely serve as a defense to judicial review concerns for the EEOC in future litigation."

Read the full article, including the EEOC changes, on pages nine and ten in the Checkoff.

"In the COVID-19 era, employees’ abilities to communicate face-to-face with their coworkers is significantly curtailed, if not eliminated altogether, and most employees find themselves conversing with their coworkers solely through e-mail, videoconferencing, or other digital platforms. Prohibiting the use of these digital communications systems for Section 7 solicitations may very well foreclose employees’ ability to effectively discuss the terms and conditions of their employment, contrary to the NLRA."

Read the full article on page 1 of The Florida Bar's January 2021 issue of the Checkoff.

"As the first doses of the COVID-19 vaccine are distributed to health care workers, many employers are grappling with whether to require their employees to receive the vaccine...While it may be months before employers are required to make this decision, it is important to start thinking about the ramifications."

Read the full excerpted article, here.

"Nondisclosure agreements and their enforceability can vary state-by-state. In some jurisdictions, nondisclosure agreements can be enforced for an indefinite amount of time; however, courts will look at the information sought to be protected and the interest in its protection to determine whether the length of the non-disclosure is valid. Should these agreements survive judicial scrutiny, a violation can come at a significant cost for the breaching party as these agreements often provide for monetary damages and attorney’s fees for the non-breaching party. Breaches also carry other consequences as the non-disclosure agreement may no longer be enforceable against the non-breaching party."

The full article can be read here.

"The COVID-19 pandemic has forced many companies to direct most, if not all, of their employees to work remotely. As a result, trade secrets are no longer under the strict controls of the office environment and are instead being accessed and handled by employees at home. Consequently, to increase the likelihood that trade secrets remain protected under the law, companies confronted with this unprecedented shift in their business operations should reexamine their existing measures on protecting such information."

Find the entire article here.

The U.S. Supreme Court resolved once and for all a split among federal appeals courts, holding that Title VII’s prohibition of employment discrimination based on sex extends to employees discriminated against on the basis of sexual orientation and gender identity.

On June 15, in the consolidated cases R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC), Altitude Express v. Zarda, and Bostock v. Clayton County, Georgia, the U.S. Supreme Court resolved once and for all a split among federal appeals courts, holding that Title VII’s prohibition of employment discrimination based on sex extends to employees discriminated against on the basis of sexual orientation and gender identity.

This ruling represents a significant departure from prior interpretations of Title VII by the U.S, Court of Appeals for the Eleventh Circuit and adds gender identity and sexual orientation to the protected categories covered under current federal employment law. In addition, this decision will impact state anti-discrimination laws, such as the Florida Civil Rights Act (FCRA). Because the FCRA is interpreted by courts consistently with Title VII, it is likely that Florida state courts will follow in the Supreme Court’s footsteps in extending FCRA protections in accordance with the court’s decision.

However, the ruling specifically left open a potential argument by employers that requiring compliance with Title VII may substantially burden an employer’s exercise of religion. The court’s decision also declined to address concerns related to sex-segregated bathrooms, locker rooms and dress codes, leaving these issues to be addressed in future decisions.

Read the full article here.

Matt Stefany, associate in our Tampa office, writes in "the Checkoff" on a challenge, brought by the FEA (Florida Education Association) and several employee organizations, to new provisions which took effect July 1, 2018 and require certified bargaining representatives of instructional personnel to disclose the composition of their membership. His article appears on page four.

Daily Business Review publishes Shannon Kelley's commentary on important pending Supreme Court decisions in three cases that will determine whether discrimination based upon gender identity and sexual orientation is covered under Title VII of the Civil Rights Act of 1964 (Title VII).

The NLRB also argued that Section 7 protects employees’ rights to engage in protected concerted activity. The Supreme Court rejected these positions and focused on the fact that Section 7 does not mention class or collective procedures and does not express any disapproval of arbitrations.

Nevertheless, on June 18, the NLRB found that an arbitration agreement that required employees to arbitrate “all claims and controversies” with their employer unlawfully restricted employees’ access to the NLRB to adjudicate labor disputes.

Read the full article here

The DOL is updating both the minimum weekly standard salary level and the total annual compensation requirement for “highly compensated employees” to more accurately reflect growth in wages and salaries. The new thresholds account for growth in employee earnings, since the currently enforced thresholds were set in 2004. The DOL believes that the update to the standard salary level will maintain the traditional purposes of the salary level test and will help employers more readily identify exempt employees. The DOL is also revising the special salary levels for employees in U.S. territories and the special base rate for employees in the motion picture producing industry.

In the final rule, the DOL is:

  • Raising the “standard salary level” from the currently enforced level of $455 per week ($23,000 per year) to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year;
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
  • Revising the special salary level for workers in U.S. territories and the motion picture industry.

Read further analysis in the full article here

Barron Dickinson, Tallahassee Associate, authors this Florida State University Business Review article on the hot-button topic of non-lawyer ownership of Florida law firms.

If you work in Human Resources, you should be very familiar with the Family and Medical Leave Act and its accompanying regulations. The FMLA requires covered employers, both private and public, to provide eligible employees with 12 weeks of unpaid leave, along with continued health care benefits and job protection during such leave. However, it is likely that you have never considered whether HR personnel could be personally liable for "employer" violations under the FMLA. Now, as confirmed in the recent Second Circuit decision of Graziadio v. Culinary Institute of America, this fear has become reality and it is possible for HR personnel to be classified as "employers" subject to individual liability under the FMLA. Therefore, you need to be more cautious than ever when determining an employee's rights under the FMLA.

"Employer" Under the FMLA

Under the FMLA, an individual may be held liable only if she is an "employer," which is defined as encompassing "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." Normally, the definition of "employer" is derived from the Fair Labor Standards Act and is dependent on the "economic realities," such as whether the alleged employer: (1) has the power to hire and fire employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines the rates and methods of payment; and (4) maintains employment records. Applying these factors in the FMLA context, the essential question is whether the alleged employer controlled in whole or in part plaintiff's rights under the FMLA.

The Decision in Graziadio v. Culinary Institute of America

In Graziadio, an employee of the Culinary Institute of America ("CIA") brought suit against the CIA and two of her supervisors after she was terminated for taking FMLA leave to take care of her two sons. One of these supervisors, Shaynan Garrioch, served as CIA's Director of HR. After considering the facts and applying the economic realities factors, the Second Circuit determined that Garrioch could qualify as an employer for purposes of FMLA liability against her. First, the court concluded that Garrioch demonstrated substantial authority over the Plaintiff's termination. Second, the court found that Garrioch exercised control over Plaintiff's schedule and conditions of employment, at least with respect to the FMLA, because she handled employee return to work issues after FMLA leave and determined any required work accommodations. Finally, the court determined that Garrioch "controlled plaintiff's rights under the FMLA" because the evidence demonstrated that she (a) reviewed Plaintiff's FMLA paperwork; (b) determined its adequacy; (c) controlled Plaintiff's ability to return to work and under what conditions; and (d) sent Plaintiff nearly every communication regarding her leave and employment. Given this evidence, the court held that Garrioch exercised sufficient control over Plaintiff's employment to be subject to individual liability under the FMLA.

Circuit Split Regarding Public Employer Individual Liability Under the FMLA

While it is undisputed that the Second Circuit's decision in Graziadio will have far reaching implications for HR personnel across the nation, the issue of individual liability under the FMLA becomes less clear in the context of public agency employers. Currently, there is a circuit split among the federal circuits regarding individual liability under the FMLA in the public sector. On the one hand, the Eleventh Circuit in Wascura v. Carver, and more recently in Dawkins v. Fulton County Government,has held that public officials in their individual capacities are not employers under the FMLA. These decisions are consistent with the Sixth Circuit's interpretation regarding this issue. On the other hand, the Third, Fifth, and Eighth Circuits do not distinguish between private and public sector employers on this issue and have all held that public officials can be held individually liable under the FMLA. Until the Supreme Court resolves the matter, this split among the federal circuits will undoubtedly create some uncertainty for public employers all over the country, and HR personnel need to be more aware than ever regarding future developments in this area.

HR Personnel Beware

In the wake of Graziadio, HR personnel and managers who administer FMLA issues need to be cautious when determining employee rights under the FMLA, or risk being held personally liable. More than ever, it is imperative that you recognize when an employee leave of absence qualifies as FMLA leave and that you administer such leave in strict compliance with the statute and implementing regulations. It is also important to ensure supervisory personnel are properly trained on the basics of the FMLA, such that they know when to involve HR. Human Resources personnel, in turn, are encouraged to stay abreast of the latest legal developments and to seek guidance from legal counsel when handling complex FMLA issues. Not only can legal counsel assist in determining the appropriate course of action for FMLA issues, but seeking the advice of counsel will also aid in defending against any claim seeking to impose individual liability. If you have any questions or wish to discuss these or other FMLA issues, please contact Allen Norton & Blue.

Wayne Evans writes on some of the missteps to be avoided by employers regarding the Fair Labor Standards Act (FLSA). Posted here with permission of the Florida Sheriffs Association from the Fall 2013 Edition of All Points Bulletin.