JANUARY 2020 Chchececkoffkoff a PUBLICATION of the FLORIDA BAR LABOR & EMPLOYMENT LAW SECTION
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www.laboremploymentlaw.org thethe The Florida Bar Vol. LIX, No. 2 JANUARY 2020 ChChececkoffkoff A PUBLICATION OF THE FLORIDA BAR LABOR & EMPLOYMENT LAW SECTION IN THIS ISSUE NLRB Allows Employers to Chair’s Message ................. 2 Recertification Disclosure Demand Arbitration Agreements Requirements Survive Challenge by Florida Teachers' Unions ............ 4 with Class and Collective SCOTUS Watch: Employment-Related Waivers After a Lawsuit Has Cases to Watch for This Term ....................... 6 Been Filed In the Crosshairs: Gun Rights vs. Employer By Shane Muñoz, Tampa, and Chandler Armistead, Orlando Liability ...........................8 1 Calendar of Events ........... 19 In Cordúa Restaurants, Inc., the National its employers from threatening to discharge Labor Relations Board (Board or NLRB) an- an employee who refuses to sign a manda- 2019-2020 Audio Webcast Series (3737) ................ 21 swered three important questions regarding tory arbitration agreement; and (3) whether Case Notes .......................22 mandatory arbitration agreements that include employers may discipline employees who, in violation of such agreements, participate in Annual Update/Certification class and collective action waivers: (1) wheth- Review CLE ..................25 er the National Labor Relations Act (the Act) class or collective actions. prohibits employers from promulgating such agreements in response to employees opting Background REGISTER into such actions; (2) whether the Act prohib- Prior to the United States Supreme Court’s See “Arbitration Agreements,” page 12 NOW! The FLSA’s New and Proposed 20th Labor and Employment Compensation Regulations Law Annual By M. Kristen Allman, Tampa Update and This has been an extraordinarily active expenses and employer contributions to bona year administratively for the U.S. Department fide employee benefit plans), the Fair Labor Certification of Labor (DOL) insofar as it has proposed or Standards Act (FLSA) requires that all forms Review finalized numerous regulations that impact of employee remuneration be included in workplace compensation practices. the regular rate for purposes of calculating February 6–7, 2020 overtime compensation due the nonexempt Regular Rate Rule Proposal employee at one and a half times that rate for 2 Hyatt Regency In late March, the DOL issued a notice of hours worked in excess of forty per workweek. In propounding modifications to existing Orlando, FL rulemaking with regard to the types of pay- ments that must be included in the nonexempt regular rate regulations, the DOL states that employee’s regular rate of pay for overtime “current regulations do not sufficiently reflect For more information, computation purposes.1 Except where spe- . developments in the 21st-century work- see pages 25–26. cifically excluded by law (such as reimbursed See “FLSA’s New and Proposed Regulations,” page 14 CHAIR’S MESSAGE David W. Adams I hope this letter finds ev- vacy Laws (May 6th). I know we will benefit from these eryone well and ready for the timely updates. If you missed our November (Have You new year. Googled It? Website Accessibility Under Title II and Our Section has some great Title III of the ADA) and December (We’re at Impasse. events coming up. The 20th Now What? Best Practices for the Impasse and Labor and Employment Special Magistrate Process) webcasts, you can order Law Annual Update and the programs. See page 21 for order information and to Board Certification Review register for upcoming webcast CLEs. will be held February 6th and In 2016, the Section held a very successful all-day 7th at the Hyatt Regency Or- seminar in Tallahassee that provided a unique oppor- lando in conjunction with The tunity to hear from key members of state agencies. Florida Bar Winter Meeting. For our North Florida L&E members, it was also a rare For more information on the lecture program and hotel opportunity to attend a nearby Section-sponsored CLE reservations, see the brochure on pages 25–26. This seminar. Building on that success, we invite you to attend event often sells out, so register now. our next Tallahassee seminar, titled Practicing Before We also have a number of audio webcasts planned in State Agencies, which will be held on March 5th. the new year: Be an Expert in Handling Experts: Best Finally, Advanced Labor Topics 2020 will take place Practices for Expert Designation, Discovery, and in Washington D.C. on April 2–3, 2020. This event will Direct and Cross-Examination (January 8th); Flexible include educational and social activities. See the cherry Work Arrangements: Legal Implications of a Millen- blossoms in bloom and take in some world-class con- nial Must-Have (February 5th); Hot Topics in Public tinuing education! Families are welcome to be a part Sector Bargaining (March 11th); New Rules of Reason and enjoy the nation’s capital. Come early. Stay late. We or Reasons to Rue? NLRB Decisions Changing the have a limited block of rooms at The Madison, a Hilton Landscape of the Union and Non-Union Workplace property, so make your reservations now. See the next (April 8th); and What Employers and Employees Need page for hotel information. to Know About the GDPR, CCPA, and Emerging Pri- I wish a happy new year to all. the The Checkoff is prepared and published by CHECKOFF The Florida Bar Labor and Employment Law Section. David W. Adams, Tampa Scott E. Atwood, Fort Myers Cathleen Scott, Jupiter Angie Froelich, Tallahassee Chair Secretary/Treasurer Immediate Past Chair Program Administrator Robyn S. Hankins, Jupiter Sacha Dyson Viktoryia Johnson, Tampa Donna Richardson, Tallahassee Chair-Elect Legal Education Director Editor Design/Layout Statements or expressions of opinion or comments appearing herein are those of the contributing authors, not The Florida Bar, the Labor and Employment Law Section, or the Editors. 2 Join Us in D.C. for Advanced Labor Topics April 2–3, 2020 The Madison Washington D.C., a Hilton Hotel 1177 15th Street, NW Washington, D.C. 20005 (202) 862-1600 Course Number 3150 HOTEL INFORMATION We are now accepting hotel reservations for this upcoming event. We look forward to seeing you! Group Rate: $256 / Cut-off Date: March 11, 2020 Custom Reservations Link: https://book.passkey.com/go/TheFloridaBar20 3 Recertification Disclosure Requirements Survive Challenge by Florida Teachers’ Unions By Matt Stefany, Tampa A product of the 2018 Florida legisla- of employees, the organization can lose and non-dues-paying members.14 tive session, Chapter 2018-6, Laws of such status only if it is displaced by Those employee organizations with a Florida, brings several changes to the another employee organization through dues-paying membership of less than state’s education system. For those in- the same certification process7 or if its fifty percent of the employees eligible volved in the public-sector labor sphere, certification is suspended or revoked. for representation in the unit must pe- the new law’s most significant (and Traditionally, an employee organiza- tition PERC for recertification or face controversial) provision is section 33, tion’s certification is revoked through a revocation of their certification.15 Only codified in subsections 1012.2315(4) “petition to revoke certification” filed by those organizations that receive a ma- (b) and (c), Florida Statutes. The newly any employee or group of employees jority vote in favor of retention will con- enacted provisions, which took effect who no longer wants to be represented tinue in their representative capacity. July 1, 2018, impose certain disclosure by the organization.8 As a practical Within a few months of the law’s obligations on employee organizations matter, PERA’s revocation process is enactment, the Florida Education representing instructional personnel seldom used because many employ- Association and several employee when such organizations go through ees are unaware of the process, and organizations (hereinafter referred to the annual process of renewing their the idea of revocation cannot originate collectively as FEA) filed a Complaint registration with the Public Employee with the employer.9 An employee who for Declaratory and Injunctive Relief Relations Commission (PERC).1 wishes to file a petition to revoke an against the commissioners of PERC Public-sector labor relations in Flor- incumbent union’s certification must in Leon County Circuit Court seeking ida are governed by the Public Em- obtain dated statements, signed by at to have Chapter 2018-6 declared un- ployee Relations Act (PERA), Chapter least thirty percent of the employees in constitutional on a variety of grounds.16 447, Part II, Florida Statutes.2 PERA is the unit, indicating that such employees The FEA argued, inter alia, that the law the statutory implementation of Article I, no longer desire to be represented by was an unconstitutional abridgment of Section 6 of Florida’s Constitution, the incumbent organization.10 If PERC the right to bargain collectively and— which affords employees a constitu- determines the petition is legally suffi- in violation of the Equal Protection tional right to bargain collectively and cient, an election takes place in which Clause—treated K-12 instructional to work regardless of their membership a majority of those employees voting personnel differently than other classes in a labor union.3 PERA recognizes the determines the future status of the of public employees. right of public employees to be repre- incumbent certified bargaining agent.11 In August of 2019, Circuit Court sented