The Palm Beach County Personnel Appeals Board is responsible for adjudicating appeals from permanent

status, non-bargaining unit employees regarding discharges and layoffs. Upon an employee’s request, the Board conducts hearings and renders final, binding decisions.

As a Florida Bar Board Certified attorney in Labor and Employment Law, Brett helps public and private sector employers resolve issues in a prompt and efficient manner. Brett is a frequent speaker on labor and employment law and human resources matters and works closely with employers to ensure that their practices comply with federal, state, and local laws.

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Section 3 of the EO, titled “Terminating Illegal Discrimination in the Federal Government,” specifically addresses the federal contracting process and revokes several previous executive orders and memoranda, including Executive Order 11246 (“EO 11246”). Originally established in 1965 by President Lyndon Johnson, EO 11246 prohibited employment discrimination by federal contractors and subcontractors based on race, color, religion, sex, and national origin. EO 11246 also required covered contractors to take affirmative action to ensure equal employment. President Trump’s EO now bars federal contractors from considering race, color, sex, sexual orientation, religion, or national origin in their employment, procurement or contracting practices “in ways that violate the Nation’s civil rights laws.” The EO ultimately eliminates affirmative action plan obligations for federal contractors.

Section 4 of the EO, titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences” directs federal agencies, in coordination with the attorney general, to take necessary actions to implement the EO’s principles. Within 120 days, the attorney general, in consultation with agency heads, is required to submit a report with recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. This report must outline key areas of concern within each agency’s jurisdiction, identify the most egregious DEI practices, propose specific measures to deter illegal discrimination, suggest strategies for private sector engagement, and indicate potential litigation and regulatory actions.

It is crucial to note that President Trump’s EO does not alter existing anti-discrimination laws (like Title VII or the Florida Civil Rights Act) or their judicial interpretations. However, we strongly encourage employers, particularly federal contractors, to evaluate their current DEI initiatives and/or programs to ensure potential compliance with the EO.

We will continue to monitor developments regarding this executive order. If you have any questions or concerns about it or other employment-related executive orders, please feel free to reach out to us.

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On August 20, 2024, however, Judge Ada Brown of the U.S. District Court for the Northern District of Texas enjoined the implementation of the Noncompete Ban, meaning that it will no longer take effect on September 4, 2024 (or at any point thereafter, unless there is a successful appeal of Judge Brown’s ruling). In particular, Judge Brown found that the FTC lacked authority to issue substantive rules related to unfair methods of competition, which importantly includes the Noncompete Ban. This ruling returns employers to the status quo, allowing for enforcement of noncompete agreements according to current state-specific frameworks.

Should you have any inquiries or seek clarification on this matter, please do not hesitate to contact us.

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Of the 47 lawyers recognized, 12 of the firm’s attorneys were recognized for the very first time and 14 attorneys were recognized as Ones to Watch. 

Best Lawyers has employed the same transparent methodology for more than 35 years, based entirely on peer review. 

The following includes all Firm attorneys named and areas in which they are recognized:

Miami

• Mitchell A. Bierman (Administrative / Regulatory Law, Government Contracts, Government Relations Practice)
• Lillian Arango (Real Estate Law)
• Maria Victoria Currais (Real Estate Law)
• Jeffrey Decarlo (Commercial Litigation, Public Finance Law)
• Alan K. Fertel (Sports Law)
• Chad S. Friedman (Land Use and Zoning Law, Real Estate Law)
• Jessika Arce Graham (Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law)
• Edward G. Guedes (Appellate Practice)
• Stephen J. Helfman (Land Use and Zoning Law)
• Juan P. Loumiet (Litigation – Real Estate, Real Estate Law)
• Justin Luger (Commercial Litigation)
• Anthony L. Recio (Land Use and Zoning Law)
• Paul Ryder (Employment Law – Management)
• Clifford A. Schulman (Environmental Law, Land Use and Zoning Law)
• Joseph H. Serota (Commercial Litigation)
• Eduardo M. Soto (Real Estate Law)
• Richard Jay Weiss (Government Relations Practice)
• Laura K. Wendell (Appellate Practice)
• David M. Wolpin (Employment Law – Management, Government Relations Practice)
• Daniela Cimo (Ones to Watch: Land Use and Zoning Law)
• Kelsie Elmer (Ones to Watch: Real Estate Law)
• Roger C. Pou (Ones to Watch: Municipal Law)
• Samantha W. Soto (Ones to Watch: Labor and Employment Law – Management, Litigation – Labor and Employment)
• Alejandro Uribe (Ones to Watch: Land Use and Zoning Law)

Fort Lauderdale

• Daniel L. Abbott (Litigation – Land Use and Zoning)
• Mitchell J. Burnstein (Commercial Litigation, Eminent Domain and Condemnation Law)
• Jamie A. Cole (Commercial Litigation)
• Alicia Gonzalez (Real Estate Law)
• Paul Gougelman (Land Use and Zoning Law)
• Michael J. Kurzman (Construction Law, Litigation – Construction)
• Matthew H. Mandel (Commercial Litigation)
• Eric L. Stettin (Commercial Litigation)
• Susan L. Trevarthen (Land Use and Zoning Law)
• Peter D. Waldman (Eminent Domain and Condemnation Law)
• Isabella Falcon (Ones to Watch: Commercial Litigation)
• Anne Reilly Flanigan (Ones to Watch: Appellate Practice, Civil Rights Law, Commercial Litigation)
• Narinah Jean-Baptiste (Ones to Watch: Municipal Law)
• Bryan C. Siddique (Ones to Watch: Commercial Litigation)
• Alison F. Smith (Ones to Watch: Labor and Employment Law – Management)
• Blayne Yudis (Ones to Watch: Commercial Litigation)

Boca Raton

• Howard D. Dubosar (Commercial Litigation, Litigation – Bankruptcy)
• Andrew S. Maurodis (Land Use and Zoning Law)
• Brett J. Schneider (Employment Law – Management, Labor Law – Union, Litigation – Labor and Employment)
• David N. Tolces (Real Estate Law)
• Ethan Goldstein (Ones to Watch: Commercial Litigation)
• Ryan Hudak (Ones to Watch: Labor and Employment Law – Management)
• Jeremy S. Rosner (Ones to Watch: Commercial Litigation)

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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

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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.  

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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. 

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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.

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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. 

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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.

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