Super Lawyers recognizes distinguished attorneys who have undergone a rigorous screening process and are ultimately selected for inclusion in their annual list of exceptional legal professionals. Published by Thomson Reuters, Super Lawyers is a rating service of attorneys from more than 70 practice areas and determines its rankings through independent research, peer nominations, and peer evaluations. Only the top 5 percent of outstanding lawyers in Florida are rated by Super Lawyers, while no more than 2.5 percent of lawyers under 40 years old or who have practiced for fewer than 10 years are selected as Rising Stars.

The Firm’s recognized attorneys are listed below.

Miami

Recognized as Super Lawyers

• Mitchell Bierman
• Alan K. Fertel
• Edward G. Guedes
• Joseph H. Serota

Recognized as Rising Star

• Justin D. Luger

Fort Lauderdale

Recognized as Super Lawyers

• Mitchell J. Burnstein
• Jamie A. Cole
• Susan Trevarthen
• Peter D. Waldman

Recognized as Rising Stars

• Anne Reilly Flanigan
• Alicia Gonzalez
• Chanae Wood

Boca Raton

Recognized as Super Lawyers

• Howard D. DuBosar
• Alen H. Hsu
• Brett J. Schneider

The post WSHC+B ATTORNEYS RECOGNIZED AS 2024 SUPER LAWYERS AND RISING STARS appeared first on Weiss Serota Helfman Cole + Bierman.

Here are the major takeaways:

White Collar Exemptions

• The standard salary level for the FLSA’s White Collar exemptions will increase from $684 per week to $844 per week (or $43,888 annually) on July 1, 2024.
• Six months later, on January 1, 2025, the standard salary level will increase to $1,128 per week (or $58,656 annually for a full-time worker).

HCE Exemption

The HCE total annual compensation level will increase from $107,432 per year to $132,964 per year on July 1, 2024, and then to $151,164 per year on January 1, 2025.

• Pursuant to the Rule, if an employee’s total annual compensation does not total at least $132,964 by the last pay period of the 52-week period, the employer can make up the difference by making a one-time payment to achieve the required level no later than the next pay period after the end of the year.
• Up to 10% of an employee’s salary amount may be satisfied by the payment of nondiscretionary bonuses, incentives, and commissions, that are paid annually or more frequently. 

Other Takeaways

• The salary thresholds will be updated every three years beginning July 1, 2027, based on current earnings data. The “current earnings data” is determined by “the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region (currently the South).”
• The Rule does not change any of the duties tests associated with the White Collar exemptions. 
• The Rule does not apply to exempt employees in the U.S. territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. 
• The salary thresholds do not affect any workers in named occupations who are not required to pass the salary requirements including: physicians, lawyers, teachers, academic administrative personnel, educational administrators, and outside sales workers. Accordingly, these employees’ exemption status remain unaffected by the Rule.  

In light of the Rule, employers will need to reevaluate their exempt employees and confirm these individuals will earn the new threshold amounts required by the Rule.  Employers should consider whether their existing exempt workers’ salaries require increases. Otherwise, these individuals will no longer be considered exempt employees and will be entitled to overtime pay. Due to the time associated with analyzing these issues, employers should immediately take the necessary steps to ensure compliance by July 1, 2024.  

The post Client Alert: DOL Issues Final Rule on Amendment to FLSA Exemptions appeared first on Weiss Serota Helfman Cole + Bierman.

On April 15, 2024, the EEOC published its Final Rule on the application and interpretation of the Pregnant Workers Fairness Act (“PWFA”). The Final Rule provides regulations and guidance for employers regarding the interpretation of the law, as well as enforcement guidance. The Final Rule was published in the Federal Register on April 19, 2024, and the regulations will go into effect 60 days thereafter.

Here are some major takeaways:

An employee’s word is (usually) enough. The regulations state that a limitation is “known” once an employee “communicates” the limitation to the employer. Therefore, automatically requesting proof of pregnancy (or childbirth/related conditions) is likely to be considered a violation of the law and possibly could lead to a retaliation claim.

“Pregnancy…and related medical conditions” includes a past pregnancy, fertility treatments, and the use of contraception. The regulations specifically state that “pregnancy, childbirth, and related medical conditions” include attempts at becoming pregnant and a miscarriage. Based on the intent of the law, employers should not limit the PWFA to only those employees who are pregnant or may have just delivered. The regulations list a number of non-exhaustive “conditions,” including post-partum depression, menstruation, and lactation.

The employee does not have to identify a medical condition or use medical terms. There is no need for the employee to specify a medical condition—they only need to state that they are pregnant, were pregnant, or are experiencing post-pregnancy issues.

Four automatically reasonable accommodations. The EEOC considers the following accommodations as reasonable in almost every situation:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee to take additional restroom breaks;
• Allowing an employee to sit and stand as needed; and
• Allowing an employee to take breaks to eat and drink.

Medical certification may only be requested when reasonable. The EEOC makes it clear that an employer may (but is not required) to seek medical documentation—but tread carefully. The medical documentation must be narrowly tailored and may only be used when the need for accommodation is not obvious and where the employee had not provided self-confirmation. Further, if the employee seeks an accommodation listed in point 4 (above), it would not be reasonable for the employer to ask for medical documentation.

Employers cannot force an employee to take leave. An employer may not force an employee to take leave (paid or unpaid) if another reasonable accommodation is available.

An unnecessary delay can result in a violation of the law. An employer may violate the PWFA if it takes too long to provide a reasonable accommodation. This means that if an employer requires medical documentation, it would be a best practice to provide the accommodation requested in the interim to avoid exposure to litigation.

The temporary removal of essential functions may be appropriate. As one of the EEOC’s recommended reasonable accommodations, the temporary removal of “essential functions” may be warranted. There are several factors to consider, but the fact the EEOC identifies this as a possible reasonable accommodation means that employers must be careful when determining that a certain accommodation is not reasonable in light of the essential functions of the position.

Overall, covered entities (public and private employers with 15 or more employees) must be very careful when evaluating an employee’s need for accommodations under the PWFA. The PWFA extends to conditions that may not be considered disabilities under the Americans with Disabilities Act, so employers must adjust when an employee expresses a need for an accommodation related to pregnancy, getting pregnant, or post-partum.

Should you have any questions about the Final Rule and Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice. 

The post Client Alert – EEOC Publishes Final Rule on Pregnant Workers Fairness Act appeared first on Weiss Serota Helfman Cole + Bierman.

The FLSA—which requires employers to pay certain employees minimum wage, overtime, and keep accurate time and pay records, among other things—is only applicable to employees, not true independent contractors. However, if a company’s classification of independent contractors does not comply with the DOL’s Final Rule, companies may find themselves exposed to DOL audits, hefty fines, and litigation. 

The Tug-of-War 

During the Trump Administration, the DOL issued a Final Rule that sought to eliminate confusion among the courts related to classifying workers. Prior to 2021, courts generally looked to several factors to determine whether a worker was truly independent, including nature and degree of control, opportunity for profit or loss depending on managerial skill, investments by the worker, etc. Each factor was given equal weight. The 2021 Final Rule referred to the same factors, but deemed two factors—nature and degree of the individual’s control over the work and the individual’s opportunity for profit and loss—as “core” factors and more determinative of an employer-employee relationship. The 2021 Final Rule was generally regarded as more “employer friendly.” 

Since then, the Biden Administration has been focused on revising that rule and reverting to the “economic realities test” where no one factor controls. However, the manner in which the 2024 Final Rule has defined these factors is likely to make classifying workers as independent contractors more difficult. For example, a worker’s “skill and initiative” doesn’t just look to whether the worker needs specialized skills in order to do the job, but whether the skills required reflect the worker’s skills “in connection with business-like initiative.” Further, “degree of control” goes beyond the business’ control over the manner in which the work is performed to include restrictions on the worker’s ability to work for others or “economic restrictions.”

Why does it matter

Although it is likely that the 2024 Final Rule will be challenged, businesses would be wise to consult with competent legal counsel regarding their current classifications. Taking a more holistic approach to the ways in which the business uses and governs their independent contractors is likely to go a long way in making a strong case for proper classification should the DOL come knocking. Employers may also want to review their existing independent contractor agreements to be more clear on the expectations and nature of the work. 

It is worth noting that the DOL’s Final Rule only relates to enforcement of the FLSA and does not apply to other federal laws, including the National Labor Relations Act or anti-discrimination laws. Moreover, legal precedent within a particular Circuit is still controlling, though the Final Rule may be used to persuade courts when deciding whether certain workers are properly classified.

The post Client Alert: DOL Issues Anticipated Final Rule Defining Independent Contractors appeared first on Weiss Serota Helfman Cole + Bierman.

The plaintiff, who served as the City’s former Director of Technology Services, alleged he was constructively discharged, claiming it was in retaliation for an Ethics Complaint he filed against the Mayor in 2021. However, the WSHC+B team presented compelling evidence that the plaintiff’s resignation was voluntary, highlighting that he had been seeking other employment opportunities well before his resignation in 2021. This key argument, prepared and argued by Lindsay Massillon with Erica Hausdorff’s support, effectively dismantled the plaintiff’s claims.

This win for the City prevented a complex and potentially disruptive trial, saving the Mayor and Council from being called as witnesses. 

Congratulations to Lindsay Massillon for drafting and arguing the Motion on behalf of the City, as well as Erica Hausdorff for her assistance throughout this case. 

The post WSHC+B’s Labor & Employment Team Secures Decisive Win for City of Naples appeared first on Weiss Serota Helfman Cole + Bierman.

The PWFA expands upon existing federal laws prohibiting pregnancy discrimination.  Specifically, pregnancy discrimination is already prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act, which requires covered employers to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similarly situated employees. Additionally, the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy if that condition qualifies as a disability, such as diabetes that develops during pregnancy.  However, many other common pregnancy-related conditions are not covered under the ADA.  

The PWFA extends protections similar to those provided under the ADA to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.  According to recent guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), examples of possible reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions may include:

• The ability to sit or drink water; 
• Closer parking; 
• Flexible hours; 
• Appropriately sized uniforms and safety apparel; 
• Additional break time to use the bathroom, eat, and rest; 
• Leave or time off to recover from childbirth; and 
• Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. 

Under the PWFA, covered employers will also be prohibited from:

• Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfering with any individual’s rights under the PWFA.
• In light of new law, covered employers may want to consider taking the following actions:
• Analyzing potential accommodations that could be provided to pregnant employees for known limitations;
• Conducting training for human resources personnel and supervisors to ensure they understand how to appropriately respond to accommodation requests; and
• Reviewing and updating accommodation policies to ensure compliance with the PWFA.

The EEOC will begin accepting charges under the PWFA on June 27, 2023. 

Should you have any questions about the Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

The post Client Alert – Pregnant Workers Fairness Act (“PWFA”) appeared first on Weiss Serota Helfman Cole + Bierman.

Under the Safety in Private Spaces Act, a covered entity that maintains a restroom and/or changing facility, must at a minimum, have a restroom and/or changing facility designated for exclusive use by females and for exclusive use by males. The Act defines a person’s sex as, “indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.” A covered entity may have unisex restrooms and changing facilities, though it must only be intended for a single occupant or a family. In a unisex restroom, a covered entity will be required to ensure that the restroom is enclosed by floor-to-ceiling walls and is accessed by a full door with a secure lock that prevents another individual from entering while being used. 

The Act provides the following limited circumstances for a person to enter a restroom or changing facility designated for the opposite sex:

• To accompany another person to chaperone a child under the age of 12;
• To accompany an elderly or disabled person, as defined by Florida Statutes Section 825.101 and 760.22;
• For law enforcement purposes; 
• For emergencies (medical or otherwise); and
• For custodial, maintenance, or inspection purposes.

Under the Act, the applicable governmental entity for each public building under its jurisdiction will need to establish disciplinary procedures for any employee of the governmental entity who unlawfully enters a restroom (employee restroom or public restroom) or changing facility and refuses to depart when asked to do so. A person who unlawfully enters a restroom or changing room in a public building and refuses to depart when asked to do so by an employee of the governmental entity for the public building will have committed the criminal offense of trespass as provided by Florida Statute Section 810.08. On July 1, 2024, members of the public will be permitted to submit complaints to the Attorney General relating to covered entities that fail to meet the specific requirements under the Act. 

A covered entity that fails to comply with the requirements of the Act is subject to penalties and to licensure or regulatory disciplinary action, as applicable. The penalties detailed in the Act include the Attorney General bringing a civil action to enforce the Act against any covered entity beginning on July 1, 2024. Specifically, the Attorney General may seek injunctive relief. If a covered entity is found to have willfully violated the Act, the Attorney General may seek to impose a fine of up to $10,000.  

The following covered entities will be required to submit documentation to its applicable governing body detailing their compliance with the Act within one year after being established, or if such covered entity was established before July 1, 2023, then no later than April 1, 2024:  

• Correctional institutions; 
• Detention facilities; 
• K-12 educational institutions or facilities;
• State universities;
• Postsecondary educational institutions or facilities; and
• Juvenile correctional facilities or juvenile prisons. 

We anticipate that the constitutionality of the new law will be challenged pursuant to the Equal Protection Clause of the Florida Constitution. Nonetheless, all covered entities should be prepared to comply with the provisions in the Act beginning on July 1, 2023. 

Should you have any questions about the Safety in Private Spaces Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice

The post Client Alert – Safety in Private Spaces Act appeared first on Weiss Serota Helfman Cole + Bierman.

Effective April 28, 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) went into full effect. The PUMP Act applies to all employers that are covered under the Fair Labor Standards Act (“FLSA”) and protects all nursing mothers (with very limited exception for certain employees of airlines, railroads, or motor coach carriers), regardless of whether the employee is exempt from minimum wage or overtime. Small employers (those with fewer than 50 employees), may be exempt from the Act if they can prove that compliance would “impose an undue hardship by causing the employer significant difficulty or expense.”

Under the PUMP Act, employers are required to provide reasonable break time to nursing mothers each time the employee needs to express breast milk for up to one year after the birth of their child. Because the law requires breaks “each time” the employee needs to pump, employers may not restrict the duration or frequency of the breaks. In addition, nursing employees must be provided with a functional space that is (1) shielded from view; (2) free from intrusion from coworkers and the public; and (3) may be used to pump breast milk. This space cannot be a bathroom (no matter how private), but can be a temporary or “as needed” space—such as an empty office—so long as the employer puts a sign on the door to alert others not to enter, or, better yet, provides a space that can be locked from the inside. Employers must provide a functional space for each nursing mother; so it may be necessary for employers to designate more than one space depending on the needs of their employees.

Employers are cautioned not to forget about their remote employees. While employers do not have to provide a functional space to remote workers, employers must allow remote employees to turn off their cameras while the employee is pumping, and must also ensure that employees are completely relieved of their duties or properly compensated.

Employers are not required to pay for breaks as long as the employee is fully relieved from their duties when pumping. If the employee is not completely relieved of their duties, their hours must be counted as working time and employees must be compensated accordingly under the FLSA. Moreover, if an employer already provides paid breaks to its employees, and the nursing employee chooses the paid break time to pump, the employer must pay the employee in the same way as it pays other employees for the break time.

Employers are also prohibited from retaliating against employees exercising their rights under the PUMP Act and an employee who believes they are the victim of retaliation can pursue a claim under the FLSA.

Employers who fail to provide reasonable break time and/or functional space requirements may be required to compensate employees for lost wages, liquidated damages, compensatory damages, and punitive damages “where appropriate.” These remedies are in addition to other equitable remedies, such as employment, reinstatement, and promotion.

In light of the PUMP Act and the Pregnant Workers Fairness Act, employers should carefully review their current policies and make sure that they align with these new mandates. Most importantly, employers must ensure their supervisors and human resource personnel are educated on these new laws and equipped to effectively handle employee concerns to reduce exposure to litigation.

Should you have any questions about the Pump Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

The post The “PUMP Act” is now in full effect and Applies to employers covered under the Fair Labor Standards Act appeared first on Weiss Serota Helfman Cole + Bierman.

The Equal Employment Opportunity Commission (“EEOC”) recently released a technical assistance document titled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (the “Guidance”). The Guidance is part of an EEOC initiative to ensure that software and other technologies comply with federal civil rights laws,  and addresses the fact that AI algorithms used by employers appear to have many of the same flaws as the human biases they purport to avoid.

Disparate Impact Discrimination 

Disparate impact discrimination occurs when an outwardly neutral policy or practice has the effect of disproportionately excluding persons based on a protected characteristic (e.g., sex, race, religion, disability) – even if there is no discriminatory intention. 

The Guidance urges employers to follow the Uniform Guidelines on Employee Selection Procedures to assess the potential disparate impact of AI tools when employers use them to “hire, promote, terminate, or take similar actions toward applicants or current employees.” While most employers are not intentionally setting up technology to select or exclude people based on protected characteristics, even facially neutral automated decision-making software might disproportionately exclude people of a certain race, gender, etc. For example, minimum height requirements and physical strength tests can have a disparate impact on women; or an algorithm to sort applicants based on their zip code’s proximity to the employer’s offices could inadvertently exclude applicants of a particular race whose neighborhood is further away. An employer’s use of the following tools can raise issues under Title VII:

• Résumé screening software;
• Chatbots for hiring and workflow;
• Employee monitoring and analytics software; and
• Video interviewing software.

Employer Liability

The Guidance confirms that employers typically will be responsible for any discriminatory results produced by software they license from third parties, regardless of who is responsible for developing the AI. Accordingly, the EEOC specifically advises employers to explore with the vendor the extent to which a tool has been tested for disparate impact, and the extent to which it has been validated as a reliable means of measuring job-related characteristics or performance. 

The EEOC “encourages” “self-analyses on an ongoing basis,” including to “determine whether employment practices have a disproportionate negative effect on a basis prohibited under Title VII or treat protected groups differently.” “Failure to adopt a less discriminatory algorithm that was considered during the development process [] may give rise to liability.”

Key Takeaways

• Employers who use or are considering using an automated decision-making tool should carefully evaluate the tool for accuracy and bias, and ensure its results do not violate Title VII or any other civil rights laws. 
• Employers should understand how they use AI and which employment-based decisions might impact their compliance with Title VII and a complicated web of related state and local laws. 
• Employers should take stock of any AI tools used in employment decision-making and consider assessing their adverse impact. If they identify an adverse impact and continue to use the tool, they should conduct validity studies that demonstrate the legitimate basis for using the selection process.
• Employers should continue to analyze their use of automated decision-making tools and understand recordkeeping requirements. 
• Employers who license automated decision-making systems should review their contracts and diligence processes, and have a clear understanding of how the AI developer tested and validated its tools for accuracy and bias and how liability may be allocated should legal issues involving alleged discrimination arise. 

The EEOC is likely to impose a rebuttable duty for employers to seek out “less discriminatory” algorithms during the selection process. Conducting these analyses with the assistance and advice of counsel offers some protection from potential liability. Employers may wish to consult outside counsel for an independent bias audit on these tools and to discuss what other measures may be necessary in this evolving area. Should you have any questions about the use of AI in employment decisions, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

[1] The agency previously issued a similar guidance on complying with the Americans with Disabilities Act when using such tools.

[2] This is especially important for federal contractors and companies with 100+ employees.

The post Client Alert: The EEOC Issues Artificial Intelligence Guidance appeared first on Weiss Serota Helfman Cole + Bierman.

On May 9, 2023, Governor DeSantis signed into law Senate Bill 256 (“SB 256”), which creates several new requirements for certain public-employee organizations (or unions) that represent public employees in collective bargaining. The Bill is set to take effect on July 1, 2023. The Bill exempts unions that represent law-enforcement officers, correctional officers and firefighters from the new restrictions and requirements.

Specifically, the changes made to Chapter 447 of the Florida Statutes through SB 256 will affect public-employee unions that represent general or civilian employees (“Civilian Unions”) in the following manner:

• Employees who wish to join Civilian Unions will be required to sign a membership authorization form with the union that is prescribed by the Public Employees Relations Commission (“PERC”), which must contain specific information.
• Members of Civilian Unions will be allowed to revoke their membership in the organization at any time, and without any reason.
• PERC will be permitted to inspect membership authorization forms and membership revocation forms filed with Civilian Unions.
• Civilian Unions will be prohibited from receiving their members’ dues and assessments via salary deduction from the members’ public employer.
• Additional information related to the number and percentage of dues-paying members in each bargaining unit will need to be included in the annual registration renewal application submitted to PERC by each Civilian Union. In addition, the
• Civilian Union’s current annual financial report must be audited by an independent certified public accountant. This information must also be provided to the public employer on the same day it is filed with PERC.
• Public employers and/or employees who are eligible for representation in the bargaining unit may challenge a registration renewal application filed by a Civilian Union if they believe the application is inaccurate.
• Civilian Unions will be required to petition PERC to be re-certified as the bargaining agent if the number of employees paying dues to the employee organization during the last registration period is less than sixty percent (60%) of the number of employees eligible for representation in the bargaining unit.
• Certified bargaining agents of Civilian Unions will be required to provide its members with an annual audited financial report that includes a detailed breakdown of revenues and expenditures, and an accounting of membership dues and assessments.
• The list of prohibited activities by Civilian Unions and its representatives will be expanded to exclude the offering of compensation, payment, or anything of value to a public officer that the public officer is otherwise prohibited from accepting under FS 112.313(2).

The most notable change made through SB 256 that will likely affect many public employers is the prevention of dues from being deducted from workers’ paychecks, which will in turn force union members to make separate payments to their union for purposes of maintaining union membership.

Accordingly, public employers are advised to review their collective bargaining agreements in place with a Civilian Union to determine if there are any provisions that need to be revised, removed and/or collectively bargained, for purposes of complying with the new laws created under SB 256 before they become effective on July 1, 2023.

As expected, several Civilian Unions have already challenged the constitutionality of the new law by claiming it violates equal-protection rights and collective-bargaining rights under the Florida Constitution, and unconstitutionally impairs already-existing contracts between public employers and those unions (commonly referred to as collective bargaining agreements). Although these challenges are pending, public employers should anticipate that SB 256 will become effective on July 1, 2023.

Should you have any questions about this legislation, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

The post Governor DeSantis signs SB 256 creating new requirements for unions representing public employees in collective bargaining appeared first on Weiss Serota Helfman Cole + Bierman.