JANUARY 2020 Chchececkoffkoff a PUBLICATION of the FLORIDA BAR LABOR & EMPLOYMENT LAW SECTION

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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 payments 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

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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 by an employee organization Hailed by its proponents as an ef- Judge Angela Dempsey, in an Order of their own choosing and to negotiate fort to give teachers more control over denying the FEA’s Motion for Partial collectively with their employer, through their bargaining representatives and Summary Judgment, rejected the a certified bargaining agent, regard- criticized by its detractors as an attack FEA’s arguments. Judge Dempsey ing the terms and conditions of their on public teachers’ unions, subsection affirmatively declared that subsection employment.4 1012.2315(4)(c), Florida Statutes, is 1012.2315(4)(c), Florida Statutes, To become a certified bargaining fundamentally a reporting provision “does not abridge workers’ fundamental agent for public employees, an em- that places an affirmative obligation on right to bargain collectively” or “give rise ployee organization must first register certified bargaining representatives of to a claim under the Equal Protection with PERC.5 A registered employee instructional personnel12 to disclose the Clause” and found FEA’s arguments to organization may then be certified as composition of their membership.13 Fol- the contrary to be “without merit.”17 Ap- the exclusive bargaining representative lowing the amendment, when annually plying the rational basis test rather than for a particular group of employees applying to renew PERC certification, the strict scrutiny standard advocated through either a petition for voluntary employee organizations representing by the FEA, Judge Dempsey noted that recognition or petition for certification, instructional personnel must now pro- the goal of the statute was to afford pub- with the latter requiring an election vide in their applications (1) the number lic school teachers greater control over where a majority of the vote deter- of employees in the bargaining unit who the collective bargaining process when mines if the organization becomes the are eligible for representation, (2) the dues-paying members of a bargaining employees’ bargaining representative.6 number of employees who are repre- unit comprise less than fifty percent of Once certified as the exclusive bargain- sented by the employee organization, teachers and that the statute utilized ing representative for a bargaining unit and (3) a breakdown of dues-paying rational means to achieve that goal.18

4 Because the provisions themselves tion 1012.2315, Florida Statutes, and the employee or employer); see also Jess Parrish Mem’l Hosp. v. PERC, 364 So. 2d 777, 782 (Fla. do not oust the union from its repre- should consult legal counsel to ensure 1st DCA 1978) (same). sentative position but merely trigger any intended course of action accords 10 § 447.308(1), Fla. Stat. (2019); R. 60CC- the opportunity for an employee to with the law. 1.001, Fla. Admin. Code (discussing the process consider whether to alter the status of for a “showing of interest”). 11 § 447.308(1)(a)-(c), Fla. Stat. (2019). the representation, the court found no Matthew Stefany 12 19 § 1012.01(2), Fla. Stat. (2019). By statute, constitutional infringement. is an associate with “instructional personnel” includes classroom Following the court’s decision, the Allen Norton & Blue teachers, personnel in student services, librar- commissioners filed their own case- P.A.’s Tampa office, ians/media specialists, and other instructional staff who do not fall into one of the aforemen- dispositive Motion for Summary Judg- practicing exclusive- tioned categories, such as primary specialists, ment. On November 1, 2019, rather ly labor and employ- learning resource specialists, instructional train- ment law on behalf ers, adjuncts, and educational paraprofessionals. than respond to the commissioners’ § 1012.01(2)(a)-(e), Fla. Stat. (2019). of management. Motion, the FEA elected to voluntarily 13 § 1012.2315(4)(c), Fla. Stat. (2019). 20 dismiss its case without prejudice. M. STEFANY 14 § 1012.2315(4)(c)1, Fla. Stat. (2019). The dismissal leaves open the pos- 15 § 1012.2315(4)(c)2, Fla. Stat. (2019). sibility of a future lawsuit, but Judge Endnotes 16 Plaintiffs challenged the law as violating 1 Dempsey’s holding—that the statute Ch. 2018-6, Fla. Laws; § 1012.2315(4)(c), the “single subject” rule of Article III, Section 6, Fla. Stat. (2019). Florida Constitution (Count I); violating the equal does not violate public employees’ con- 2 §§ 447.201–447.609, Fla. Stat. (2019). protection requirements of Article I, Section 2, Florida Constitution (Count II); and violating stitutional right to collectively bargain 3 § 447.201, Fla. Stat. (2019). public employees’ right, in general, to collec- 4 or their right to equal protection—is no § 447.301(2), Fla. Stat. (2019). tively bargain (Count III), as well as abridging longer subject to appeal. 5 § 447.305(1), Fla. Stat. (2019). non-union members’ right to work pursuant to As of the time of this article’s publi- 6 § 447.307, Fla. Stat. (2019). Article 1, Section 6, Florida Constitution (Count 7 IV). See Complaint, Fla. Educ. Assoc. v. Poole, cation, there is no pending challenge Rival employee organizations are limited in their efforts to displace an incumbent orga- Case No. 2018 CA 1446 (Fla. 2d Cir. Ct. filed to Chapter 2018-6, but public employ- nization. No petition may be filed seeking an July 2, 2018), accessible via https://cvweb.clerk. leon.fl.us/public/online_services/search_courts/ ers of instructional personnel should election in an existing bargaining unit within search_by_name.asp. twelve months of the effective certification of the remain cognizant of their bargaining 17 incumbent employee organization. § 447.307(d), Order Denying Plaintiffs’ Motion for Summary obligations under PERA. Regardless Fla. Stat. (2019). If there is a collective bargain- Judgment as to Count II of the Complaint, Fla. of whether an employer believes that ing agreement in place, a rival organization may Educ. Assoc. v. Poole, Case No. 2018 CA 1446, at p. 6 (Fla. 2d Cir. Ct., issued Aug. 9, 2019). a certified bargaining agent has the petition for certification only during the period ex- tending from 150 days to ninety days immediately 18 Id. at p. 7. requisite approval of its members, the preceding the expiration date of the agreement. 19 Id. employer has an affirmative obligation Id. 20 Notice of Voluntary Dismissal, Fla. Educ. to bargain in good faith with the certi- 8 § 447.308, Fla. Stat. (2019). Assoc. v. Poole, Case No. 2018 CA 1446, at p. fied organization in determining wages, 9 See, e.g., SEIU Florida Healthcare Union 6 (Fla. 2d Cir. Ct. Nov. 1, 2019). Local 1999 v. Health Care Dist. of Palm Beach 21 § 447.309(1), Fla. Stat. (2019); see, e.g., hours, and the terms and conditions of Cnty., 33 FPER ¶ 117 (2007) (noting whether an Hollywood Fire Fighters, Local 1374 v. City of employment for those employees within employer commits an unfair labor practice by Hollywood, 8 FPER ¶ 13324 (1982) (noting em- the unit.21 Employers should also be involving itself in employee revocation of union ployers are under an obligation to represent the authorization cards depends on the degree views of the legislative body in negotiations on mindful of their role in any election that of employer participation in the process, i.e., all mandatory subjects of bargaining as soon as results from a recertification under sec- whether the idea of revocation originates with those views can be reasonably determined).

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5 SCOTUS Watch: Employment and Employment-Related Cases to Watch for This Term By Aaron Tandy, Miami

During its current Term, the Supreme want the Court to find that the word ERISA: Are there limitations Court of the United States (SCOTUS) “sex” in Title VII encompasses protec- on actions for recovery will tackle several employment and tion from discrimination based also on under ERISA against employment-related cases involving sexual orientation and gender identity. fiduciaries? interpretations of ERISA, ADEA, and As this article is being finalized for pub- SCOTUS also granted certiorari Title VII, among other statutes. Employ- lication, SCOTUS has not yet issued in three cases seeking clarification ment attorneys should closely monitor its opinion. SCOTUS’s docket as the Court’s final regarding the limitations on claims opinions in these cases will have a brought under the Employee Retire- significant impact on both employees 42 U.S.C. § 1981: Is the ment Income Security Act (ERISA) for and employers not only in Florida but lack of “but for” causation recovery of damages against fiducia- nationwide. fatal to a section 1981 race ries. In Intel Corp. Investment Policy discrimination claim? Committee v. Sulyma,11 the Court is being asked when the three-year stat- Title VII: Is sexual orientation Earlier in November, SCOTUS heard ute of limitations under section 413(2) discrimination prohibited? argument also in Comcast Corp. v. Na- tional Association of African American- [29 U.S.C. § 1113(2)] bars a claim As soon as the third day of its Term, Owned Media.8 Comcast is not an against plan fiduciaries. The district October 8, SCOTUS heard oral argu- employment case; rather it involves a court found that the plaintiff’s claim was ment in three employment cases— claim that Comcast refused to contract time-barred, but judgment in favor of 1 Bostock v. Clayton County, Georgia, with a company because of racial bias. the plan fiduciaries was reversed by 2 Altitude Express, Inc. v. Zarda, and In Comcast, the Court was asked to ex- the Ninth Circuit, which found that the R.G. & G.R. Harris Funeral Homes v. pand the “but for” causation test to sec- period began to run when the plaintiff EEOC.3 Each of these cases asked tion 1981 race discrimination claims. had actually located the information.12 the Court to decide whether Title VII of Previously, in Gross v. FBL Financial At issue is when a plan participant has the Civil Rights Act of 1964 (Title VII) 9 Services, Inc., SCOTUS ruled that “actual knowledge” of the information prohibits employment discrimination in order to prevail on a claim brought sufficient to trigger the statute of limi- on the basis of sexual orientation and under the Age Discrimination in Em- tations. Is it when the plan fiduciaries gender identity. ployment Act of 1967 (ADEA), the release the information, even if the The lower courts in Bostock and plaintiff was required to prove that age participant fails to read the material, Zarda reached opposite conclusions was the “but for” cause of an adverse or is it only when the plan participant on this question. The former found employment decision. In 2013, SCO- that Title VII encompasses discrimina- actually reads the information? TUS expanded this rationale to Title VII 13 4 Similarly in Thole v. U.S. Bank, N.A., tion only on the basis of gender, while retaliation claims, finding inUniversity SCOTUS is being asked whether a plan the latter found that coverage extends of Texas S.W. Medical Center. v. Nas- 5 participant or beneficiary can bring an also to sexual orientation. SCOTUS sar10 that a Title VII plaintiff must prove action against a plan fiduciary, either had side-stepped this question in an that the retaliation was the “but for” earlier Term by denying certiorari in cause of the employer’s adverse ac- for injunctive relief for misconduct or for Evans v. Georgia Regional Hospital,6 a tion. In Comcast, the petitioner asked restoration of plan losses (both under case arising out of the Eleventh Circuit. SCOTUS to apply the same rationale 29 U.S.C. § 1132(a)), when there is However, with the current split among and find that, where a party offers a no showing that either the plan or the several federal circuits,7 SCOTUS ap- race-neutral reason for a contractual individual suffered loss. Specifically parently decided the time was right to action, a section 1981 claim must fail at issue is whether, in the absence of provide clear guidance on the reach of absent a determination that race was personal loss, a plan participant has Title VII. Spirited argument was held on the sole motivating factor. The Court’s standing to sue the plan fiduciaries. October 8 between those who want to decision on this question could signifi- Sulyma was argued on December 4, leave expansion of Title VII protections cantly impact employment claims filed 2019. SCOTUS will hear argument on to congressional action and those who under 42 U.S.C. § 1981. Thole in January 2020.

6 Additionally, on November 6, 2019, authorized alien for identity theft under district court did not err in dismissing Bostock’s SCOTUS heard argument in Re- a state statute had been preempted complaint for sexual orientation discrimination under Title VII because our holding in Evans [v. tirement Plan Committee of IBM v. by passage of section 1324a(b)(5) of Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. Jander.14 In Jander, the Court is be- IRCA. Because prosecution of an alien 2017)] forecloses Bostock’s claim.”). ing asked to determine the standard for identity theft for purposes of es- 5 Zarda v. Altitude Express, Inc., 883 F.3d 100, for deciding whether retirement plan tablishing work eligibility is not among 108 (2d Cir. 2018) (“[W]e now hold that Title VII prohibits discrimination on the basis of sexual fiduciaries breached their obligations the purposes for which IRCA allows orientation as discrimination ‘because of . . . to 401K participants by failing to take information on Form I-9 to be used, the sex.’”). action when company stock fell after Kansas high court found that Congress 6 138 S. Ct. 557 (2017). the company sold its microelectronics had implicitly preempted prosecution 7 While the Second, Sixth, and Seventh Circuits have decided that Title VII extends to sexual business. As this article is being final- of employment-related identify theft by 20 orientation discrimination claims, the Fifth Circuit ized for publication, SCOTUS has not the states. earlier this year joined the Eleventh in rejecting yet issued its opinion. Given the issues presented by these that proposition. See Wittmer v. Phillips 66 Co., cases, it would be hard to overestimate 915 F.3d 328, 330 (5th Cir. 2019). the impact SCOTUS’s rulings will have 8 No. 18-1171 (U.S. filed Mar. 8, 2019),docket ADEA: Does ADEA have accessible via https://www.supremecourt.gov/ on labor and employment law. separate standards for public search.aspx? filename=/docket/docketfiles/html/ and private employees? public/18-1171.html. Aaron Tandy heads 9 557 U.S. 167 (2009). SCOTUS granted certiorari in Babb v. Pathman Lewis, 10 570 U.S. 338 (2013). 15 Wilkie, apparently to resolve a circuit LLP’s employment 11 No. 18-1116 (U.S. filed Feb. 26, 2019),docket split as to the causation standard to be law practice, help- accessible via https://www.supremecourt.gov/ applied in ADEA cases brought against search.aspx? filename=/docket/docketfiles/html/ ing employers and public/18-1116.html. public-sector employers—in this case, employees navigate 12 Sulyma v. Intel Corp. Inv. Policy Comm., 909 a VA medical center in Florida. As noted complex employ- F.3d 1069 (9th Cir. 2018). above, SCOTUS in Gross determined ment issues. 13 No. 17-1712 (U.S. filed June 22, 2018), that in private-sector cases a success- docket accessible via https://www.supremecourt. A. TANDY gov/search.aspx? filename=/docket/docketfiles/ ful litigant must provide proof that age html/public/17-1712.html. was the “but for” cause of the em- 14 No. 18-1165 (U.S. filed Mar. 4, 2019),docket ployer’s adverse employment action.16 Endnotes accessible via https://www.supremecourt.gov/ Because the statutory language regard- 1 No. 17-1618 (U.S. filed May 25, 2018),docket search.aspx? filename=/docket/docketfiles/html/ ing federal employees differs from that accessible via https://www.supremecourt.gov/ public/18-1165.html. search.aspx? filename=/docket/docketfiles/html/ 15 17 No. 18-882 (U.S. filed Jan. 7, 2019), docket for the private sector, the circuit courts public/17-1618.html. accessible via https://www.supremecourt.gov/ are split, with certain courts—including 2 No. 17-1623 (U.S. filed May 29, 2018),docket search.aspx? filename=/docket/docketfiles/html/ the Eleventh Circuit—applying a “but accessible via https://www.supremecourt.gov/ public/18-882.html. search.aspx? filename=/docket/docketfiles/html/ 16 for” causation standard and others ap- Gross v. FBL Fin. Servs., Inc, 557 U.S. 176 public/17-1623.html. (2009). plying a more expansive “motivating 3 No. 18-107 (U.S. filed July 20, 2018), docket 17 Compare 29 U.S.C. § 633(a) with 29 U.S.C. accessible via https://www.supremecourt.gov/ factor” standard. Given recent deci- § 623(a). search.aspx? filename=/docket/docketfiles/html/ sions seeking to harmonize public- and 18 public/18-107.html. Kansas v. Garcia, 139 S. Ct. 1317 (2019). 19 private-sector employment standards, 4 Bostock v. Clayton Cnty. Bd. of Comm’rs, 401 P.3d 588 (Kan. 2017). SCOTUS will likely adopt the reason- 723 F. App’x 964, 965 (11th Cir. 2018) (“[T]he 20 Id. at 600. ing in Gross for public-sector employee claims as well. Oral argument is set for January 15, 2020. Get Published. IRCA: Does the IRCA implicitly preempt a state’s Earn CLE Dollars. use of information on Form I-9 to prosecute identity theft? . . . by writing an article for the Checkoff or Finally, SCOTUS accepted certiorari The Florida Bar Journal. from the Supreme Court of Kansas on If you are interested in submitting an article for the Checkoff, contact Viktoryia a preemption question involving use Johnson ([email protected]). If you are interested in submitting an of information collected on Form I-9 article for The Florida Bar Journal, contact Robert Eschenfelder (rmejd@aol. pursuant to the Immigration Reform and Control Act (IRCA).18 In Kansas v. com). For each published article, you will receive a voucher for $150 toward Garcia,19 the Supreme Court of Kansas any L&E Section CLE. found that the prosecution of an un-

7 In the Crosshairs: Gun Rights vs. Employer Liability By Tara E. Faenza, Miami

In the United States, nearly 500 ho- riod. . . . While customers and co- tion against a customer, employee, or micides occur in workplaces every year, workers who commit these crimes invitee based upon verbal or written and roughly three-quarters of those were often armed at the time of the ar- statements of any party concerning homicides involve firearms, according gument, some were not and retrieved possession of a firearm stored inside to the Bureau of Labor Statistics.1 One a firearm from an unspecified location a private motor vehicle in a parking before committing a homicide. Thus, lot for lawful purposes. A search of a of the most widely known episodes of immediate and ready firearm access private motor vehicle in the parking workplace violence occurred in 1986 was commonly observed in argumen- lot of a public or private employer to when a postal employee entered his tative workplace deaths.6 ascertain the presence of a firearm workplace with two semi-automatic within the vehicle may only be con- weapons and murdered fifteen people Transportation incidents were the ducted by on-duty law enforcement while injuring six. In the following thirty most common fatal workplace events personnel, based upon due process years, the phrase “going postal” has nationally in 2016, with “violence and and must comply with constitutional become a cultural reference for violent other injuries by persons and animals” protections. the second most common fatal work- behavior, especially in the workplace. . . . . There is even a line of “active shooter” place event nationwide at 17%.7 video games called “Postal.”2 For This subsection applies to all public employers, “going postal” reflects the “Bring Your Gun to Work” sector employers, including those already prohibited from regulating reality of workplace violence and of One apparent way to reduce fatal possible liability for negligent hiring, firearms under the provisions of [sec- workplace violence is to ban firearms tion] 790.33.8 supervision, and security. As discussed from the premises, since the vast ma- below, employers seeking to keep em- jority of incidents are firearm-related. ployees safe from workplace violence This Florida statute, commonly called However, a 2008 Florida law—sec- the “bring your gun to work” law, is can be caught in the crosshairs of tion 790.251, Florida Statutes—spe- conflicting laws. really more of “leave your lawful con- cifically allows employees, customers, cealed weapon in your car” law. Shortly and invitees to have firearms near an Workplace Violence after section 790.251 was introduced, employer’s place of business: a leasing agent for an apartment com- According to the Occupational Safety (4) Prohibited acts. — No public or munity in Florida sued his employer for and Health Administration (OSHA): private employer may violate the wrongful termination, alleging violation Workplace violence is violence or the constitutional rights of any customer, of public policy—specifically, the right threat of violence against workers. It employee, or invitee as provided in to bear arms in self-defense—after he can occur at or outside the workplace paragraphs (a)-(e): was fired for carrying a gun to the sight and can range from threats and ver- (a) No public or private employer may of a shooting on community premises.9 bal abuse to physical assaults and prohibit any customer, employee, or In granting summary judgment in favor homicide, one of the leading causes invitee from possessing any legally of the employer, the court reiterated of job-related deaths. However it owned firearm when such firearm is Florida’s “at-will” employment doctrine manifests itself, workplace violence lawfully possessed and locked inside 10 is a growing concern for employers with no public policy exception. In or locked to a private motor vehicle in and employees nationwide.3 its ruling, the court also rejected the a parking lot and when the customer, employee’s reliance on newly enacted employee, or invitee is lawfully in One OSHA report estimates that section 790.251, Florida Statutes.11 The such area. nearly two million Americans each court cited three reasons for finding year are victims of violence in the (b) No public or private employer such reliance to be “misplaced.” First, 4 workplace. In 2017, the Department may violate the privacy rights of a the employee did not have the gun in of Labor (DOL) reported 5147 fatal customer, employee, or invitee by his car, but rather carried his firearm occupational injuries, including 458 in- verbal or written inquiry regarding across company property.12 Second, the presence of a firearm inside or tentional homicides, over 76% of which the statute was enacted more than a were attributed to “shooting” violence.5 locked to a private motor vehicle in a parking lot or by an actual search of a year after the employee’s termination A recent study published in Injury Epi- 13 private motor vehicle in a parking lot and could not be applied retroactively. demiology noted: to ascertain the presence of a firearm Finally, the legislature had not created There were 1553 firearm workplace within the vehicle. Further, no public an exception for the specific facts pre- homicides during the study pe- or private employer may take any ac- sented by the case, evidencing a strong

8 intention not to create the exception Employer Immunity and when their employees engage in vio- to at-will employment. The court said: Liability lence involving firearms; however, that “The Legislature had the opportunity is not the case. Employers may still Florida Statute 790.251, the “bring to create such an exception when it face liability from suits under negligent your gun to work” law, affords employ- enacted [section 790.251] and chose hiring and negligent retention theories. ers some measure of protection from not to do so, making clear Florida The Amber Guyger case in Texas has liability when they comply with the has no general ‘right to bear arms on garnered national attention in this re- statute: employer property’ exception to at-will gard. Guyger, a female police officer, discharge.”14 (5) DUTY OF CARE OF PUBLIC shot and killed an unarmed man after AND PRIVATE EMPLOYERS; IM- she mistakenly entered his apartment “Stand Your Ground” MUNITY FROM LIABILITY.— (thinking it was her own) and mistook 19 Employers cannot stop employees or (a) . . . [A] public or private em- him for an intruder. In defense, Guyger 20 customers from possessing a firearm ployer has no duty of care related asserted the “castle-doctrine.” That in their cars at the business, so long to the actions prohibited under such defense failed, and she was convicted as the firearm remains in the vehicle subsection. of first-degree murder and sentenced 21 and does not enter the employer’s (b) A public or private employer is to ten years in prison. physical building. But what happens not liable in a civil action based on Guyger was off duty at the time of the when violence occurs in the parking lot actions or inactions taken in compli- shooting; however, she was in uniform or another location onsite? By way of ance with this section. The immunity and allegedly issued verbal com- 22 example in a non-employment context, provided in this subsection does not mands. In the civil suit, Jean v. City Michael Drejka fatally shot unarmed apply to civil actions based on actions of Dallas, Texas and Amber Guyger, Markeis McGlockton in the parking or inactions of public or private em- plaintiffs pled multiple claims for relief lot of a Clearwater convenience store ployers that are unrelated to compli- against the City of Dallas, including ance with this section. in July 2018. Both were customers of excessive use of force, failure to prop- the store.15 Ultimately, a jury convicted (c) Nothing contained in this section erly train officers on use of force, and Drejka of manslaughter and sentenced shall be interpreted to expand any failure to properly supervise and disci- him to twenty years in prison.16 The existing duty, or create any additional pline Guyger. The plaintiffs’ complaint shooting occurred in a parking lot, pre- duty, on the part of a public or private alleged that Guyger’s Pinterest post- cisely where employers are required to employer, property owner, or property ings served as warnings of her views allow guns that are lawfully possessed. owner’s agent. towards violence: Drejka, who had a concealed weapons At first glance, Florida employers are 26. . . . Defendant Guyger’s Pintrest license, was not charged for over a seemingly off the hook from liability account demonstrates that she is month due to Florida’s “stand your continued, next page ground law.”17 The statute provides that deadly force is justified when “neces- sary to prevent imminent death or great bodily harm to [oneself] or another or to prevent the imminent commission of a forcible felony.”18 Employers can seek to protect themselves from liability by preventing employees from bringing firearms inside the workplace, but employers must permit lawfully possessed firearms in locked vehicles in the parking lot. Moreover, it would appear employers cannot stop someone from attempting to “stand the ground” with that gun in a parking lot. Given the different out- comes in the Drejka case and the case involving George Zimmerman (which preceded Drejka by several years and where the “stand your ground” argument was successful), juries may be retreating from affirming vigilante-style defenses.

9 claim . . . . Accordingly, Plaintiffs have and focus on problem employees with IN THE CROSSHAIRS, continued also failed to allege sufficient facts to known violence issues. While simply support an inference of causation.26 watching case law develop might be a dangerous individual with highly The district judge will now decide advisable in some areas of the law, it is violent and anti-social propensities. whether the case will be allowed to not wise here. Once tragedy strikes for Defendant, Guyger’s posts include proceed against the City of Dallas, but an organization, the effects can be last- statements like “Personally I think I allegations that the city failed to prop- ing. Employers should proactively seek deserve a medal for getting through erly supervise and train Guyger should to improve hiring and pre-employment this week without stabbing someone serve as a warning to employers. background checks, ensure strict poli- in the neck with a fork”; “People are cies of preventing workplace violence so ungrateful. No one ever thanks and disciplining offenders, and closely me for having the patience not to kill A Strong Offense Is the Best monitor dangerous social media post- them”; “I wear all black to remind you Defense ings. With more than thirty years of not mess with me, because I’m al- As discussed, Florida law protects ready dressed for your funeral (saved history lessons involving workplace employers from some liability relating to firearm violence, the goal of employers to love to laugh with comment “yah I workplace violence as a result of allow- got meh a gun a shovel and gloves if should not be simply to avoid liability, ing employees to keep firearms in their I were u back da f[***]k up and get out but to avoid tragedy. of meh f[***]king ass.”; “Stay low, go cars. Generally, workers’ compensation fast, kill first, die last, one shot, one laws are the sole remedy for injuries Tara E. Faenza is kill, no luck, all skill” was saved to her in the workplace, with the exception a labor and quotes for inspiration. Such post were of intentional torts. With juries show- employment available to the public and violated ing less sympathy toward “stand your associate at DPD’s social media polices however ground” defenses, it may be harder for Perlman, Bajandas, Defendant Guyger was never repri- employers to defend these cases. 23 Yevoli & Albright, PL manded for the same. Additionally, while the State of Florida in Miami and rep- prevents those convicted of felonies Daryl K. Washington, attorney for resents companies from owning firearms and carrying the Jean plaintiffs, stated: As“ we al- T. FAENZA and employees in licenses, it does not conduct a full lege in our pleadings and as we have employment and la- background check on those who apply always argued, Amber Guyger was bor disputes and advises clients in all for licenses. Instead, Florida requires clearly on duty. The great majority of aspects of employment law and general only that the applicant is over the the evidence, and the presentation by litigation matters. age of twenty-one, a citizen or legal Amber Guyger’s side, was that she was resident, not a felon; that three years a police officer and that she acted as a Endnotes have elapsed since the applicant has 1 police officer would behave.”24 It would Economic News Release, U.S. Dept. of La- had a conviction or withholding of ad- bor, Bureau of Labor Statistics, Census of Fatal be, Washington said, “totally awful in judication for a lesser offense; and that Occupational Injuries News Release (Dec. 18, situations like this” to “simply release 2018) at Table 2, https://www.bls.gov/news.re- the applicant has not been convicted lease/cfoi.t02.htm [hereinafter Economic News the city from liability when there’s an of- of misdemeanor domestic violence.27 25 Release]. ficer [who] takes the life of someone.” Also, an employee background check 2 Postal, Postal 2, Postal III, and Postal Redux The magistrate judge in the Jean case would not necessarily reveal that a are video games created by Running with Scis- sors (an American video game developer com- was unmoved, recommending that the person has had anger or other mental city be dismissed from the suit: pany). health issues not culminating in an ar- 3 Fact Sheet, OSHA, Workplace Violence [P]laintiffs’ assertions that Officer’s rest or conviction, but the background (2002), https://www.osha.gov/OshDoc/data_ actions resulted from a lack of train- check might, to some extent, shield em- General_Facts/factsheet-workplace-violence. pdf. ing, supervision, and/or discipline are ployers from liability for negligent hiring. 4 Id. too vague and conclusory to support In the hiring process, the employer 5 Economic News Release, supra note 1 at the causation element for municipal cannot lawfully ask if the person owns Table 2. liability. They are not sufficient to a firearm. The employer may or may not 6 Mitchell L. Doucette et. al., Workplace Ho- show “how the [alleged] customs and have access to information regarding micides Committed by Firearm: Recent Trends and Narrative Text and Analysis, Inj. Epidemiol., practices . . . were a ‘moving force’ past violence. However, an employer behind the [alleged] specific consti- 6, 5 (2019), https://injepijournal.biomedcentral. who turns a blind eye to the actions of com/articles/10.1186/s40621-019-0184-0 (citing tutional violations made the basis an employee and does not act when News Release, U.S. Dept. of Labor, Bureau of of this suit . . .”. To the extent that Labor Statistics, National Census of Fatal Oc- Plaintiffs allege other action on the signs of danger and violence are appar- cupational Injuries in 2015 (Dec. 16, 2016)). part of Defendant’s policymakers in ent may find itself a defending party to 7 News Release, U.S. Dept. of Labor, Bureau support of causation, the conclusory a negligent retention case. Employers of Labor Statistics, Southeast Information Office, should implement strong violence pre- Fatal Occupational Injuries in Florida – 2016 statements and formulaic recitations (Feb. 22, 2018), https://www.bls.gov/regions/ of the elements in the complaint vention and response training, engage southeast/news-release/2018/pdf/fatalworkinju- likewise do not suffice to state a in stricter supervision of employees, ries_florida_20180222.pdf. An additional 17%

10 were attributed to “[a]ll other” fatal occupational injuries nationally in 2016. Id. 8 Fla. Stat. § 790.251(4)(a)–(b) (2019). 9 Bruley v. Vill. Green Mgmt. Co., 592 F. Supp. 2d 1381, 1384 (M.D. Fla. 2008). Audio Webcast 10 Id. at 1384–85. 11 Id. at 1386. 12 Id. January 8, 2020 13 Id. at 1386–87. 14 Id. at 1387. 12:00 p.m. - 1:00 p.m. 15 Eric Glasser, Man at Center of Clearwater ‘Stand Your Ground’ Case Previously Had Con- frontations at Same Store, WTSP (6:44 AM EDT, Be an Expert in Handling Experts: July 24, 2018), https://www.wtsp.com/article/ news/man-at-center-of-clearwater-stand- Best Practices for Expert your-ground-case-previously-had-con- frontations-at-same-store/67-576767176. Designation, Discovery, Direct 16 Kathryn Varn, Michael Drejka Sentenced to 20 Years in Parking Lot Shooting, Tampa Bay and Cross-Examination (3575) Times (Oct. 11, 2019), https://www.tampabay. com/news/crime/2019/10/10/michael-drejka- sentenced-to-20-years-in-manslaughter-case/. 17 Kathryn Varn, No Arrest in Fatal Shoot- CLICK HERE TO REGISTER ing During Argument over Handicap Parking Space, Tampa Bay Times (July 25, 2018), https:// web.archive.org/web/20180725192819/http:// tampabay.com:80/news/publicsafety/crime/No- arrest-in-fatal-shooting-during-argument-over- handicap-parking-space_170174041. 18 Fla. Stat. § 776.013(1)(b) (2019). 19 Darran Simon, Jurors Can Consider the So- Called Castle Doctrine in the Murder Trial of Ex- Police Officer Amber Guyger, CNN (5:48 AM ET, Oct. 1, 2019), https://www.cnn.com/2019/10/01/ us/amber-guyger-trial-castle-doctrine/index.html. 20 Id. 21 Michael Brice-Saddler et. al., The Amber Guyger Case Has Sparked Emotional Fallout Across Dallas, Wash. Post (7:25 PM EDT, Oct. 10, Audio Webcast 2019), https://www.washingtonpost.com/national/amber-guygers-conviction-has-triggered-emotional-fallout-across-dallas/2019/10/10/7f12dafc- e9f8-11e9-9306-47cb0324fd44_story.html. February 5, 2020 22 Id. 23 Plaintiffs’ Original Complaint [ECF Doc. 5], 12:00 p.m. - 1:00 p.m. Jean v. City of Dallas, 3:18-cv-02862-M at ¶26 (N.D. Tex. Oct, 27, 2018). 24 City of Dallas Might Not Be Part of Botham Jean’s Family’s Civil Lawsuit After All, NewsOne Flexible Work Arrangements: (Oct. 18, 2019), https://newsone.com/3890601/ dallas-botham-jean-amber-guyger-civil-lawsuit/ Legal Implications of a (quotation marks omitted). 25 Lauren Floyd, ‘Amber Guyger Was on Duty’: Millennial Must-Have (3576) Attorney Fights Back Against Judge’s Request to Remove City of Dallas from Jean Family’s Civil Suit, Atl. Black Star (Oct. 22, 2019), https:// atlantablackstar.com/2019/10/22/amber-guyger- CLICK HERE TO REGISTER was-on-duty-attorney-fights-back-against-judg- es-request-to-remove-city-of-dallas-from-jean- familys-civil-suit/ (quotation marks omitted). 26 Findings, Conclusions, and Recommendation [ECF Doc. 33], Jean v. City of Dallas, 3:18-cv- 02862-M (N.D. Tex. Oct, 27, 2018) at pp. 17–18 (internal citations omitted) (quoting Bragg v. Safeek, No. 3-09-CV-1931-N-BD, 2010 U.S. Dist. LEXIS 131487 (N.D. Tex. Dec. 13, 2010)). 27 Fla. Stat. § 790.06 (2019).

11 ARBITRATION AGREEMENTS, continued from page 1 decision in Epic Systems Corp. v. violated the Act. Applying the Board’s tivity, but the Board distinguished those Lewis,2 the Board’s position was that a decision in Murphy Oil USA, Inc., the as cases where the rule did restrict the waiver of the right to bring or participate ALJ agreed that the revised agreement exercise of Section 7 rights. The Board in class and collective actions—even was unlawful in substance; he therefore also pointed out that there was nothing if the waiver was part of an otherwise did not reach the General Counsel’s in Cordúa’s agreement that suggested valid arbitration agreement—violated alternative argument concerning the that employees would be disciplined the Act.3 Federal appellate courts split motive for promulgation of the revised for failing to abide by its provisions. on the issue.4 SCOTUS resolved the agreement.10 The ALJ also found that Instead, the employer’s remedy was dispute in Epic Systems, holding that Nguyen’s comment was unlawful and to seek enforcement of the agreement, “agreements containing class- and that Cordúa unlawfully discharged an action which, under Epic Systems, collective-action waivers and stipulat- Ramirez.11 After the Board issued an would be entirely lawful.14 ing that employment disputes are to initial decision in the matter, and the The Board also reversed the judge’s be resolved by individualized arbitra- employer filed a petition for review in finding that Nguyen unlawfully threat- tion do not violate the [Act] and must the United States Court of Appeals for ened employees with discipline.15 be enforced as written pursuant to the the Fifth Circuit, the Supreme Court is- Despite the revised agreement’s pro- Federal Arbitration Act.”5 sued its decision in Epic Systems. The hibition on employees opting into a In Cordúa, the employer “maintained Board then vacated, for reconsideration collective action, the effect of the pro- an arbitration agreement that required in light of Epic Systems, its decision in hibition was only to require employees employees to waive their ‘right to file, Cordúa. to resolve their employment-related participate or proceed in class or col- claims through individual arbitration. lective actions . . . in any civil court or Board Reconsideration As the Board explained, Epic Systems 6 arbitration proceeding.’” In January On reconsideration, the Board ad- held that employers are allowed to 2015, in violation of that agreement, a dressed two issues of first impression: condition employment on an employee group of employees, including Steven (1) whether the Act prohibits employers signing an individual arbitration agree- Ramirez, initiated a collective action from promulgating arbitration agreement. Nguyen’s statements during the against Cordúa. Other employees opt- ments with class and collective action pre-shift meeting were interpreted by ed into the lawsuit.7 Cordúa discharged waivers in response to employees the Board to have only “amounted to an Ramirez for discussing wage issues opting into a collective action, and (2) explanation of the lawful consequences with co-workers and filing the collective whether the Act prohibits employers of failing to sign the agreement.”16 Fur- action.8 Cordúa also formulated a new from threatening to discharge an em- thermore, the Board held that the “don’t arbitration agreement and waiver, add- ployee who refuses to sign a manda- bite the hand that feeds me” comment ing a prohibition on opting into collective tory arbitration agreement. The Board could not be reasonably construed as actions. During a pre-shift meeting in found the answer to both questions in a “threat for reprisals for ‘raising con- December 2015, Cordúa Assistant Epic Systems’ holding: “[A]n agree- cerns’ about the revised agreement.”17 Manager Alex Nguyen disseminated ment requiring that employment-related Accordingly, the Board reversed the the revised arbitration agreement, told claims be resolved through individual judge’s finding that Nguyen’s state- employees they would be removed arbitration, rather than through class ments violated Section 8(a)(1). from the schedule if they did not sign or collective litigation, does not restrict However, the Board affirmed the the revised agreement, and cautioned Section 7 rights in any way.”12 ALJ’s original finding that Ramirez employees who objected to signing the In its ruling, the Board assumed, engaged in Section 7 protected activity agreement that he “wouldn’t bite the without deciding, that an individual em- not only when he discussed his wages hand that feeds me.”9 ployee engages in protected concerted with co-workers, but also when he filed An unfair labor practice action was activity when he or she opts into a col- the collective action, even though he brought, and on December 9, 2016, lective action.13 As to the first question, violated the arbitration agreement by Cordúa went before an NLRB Ad- because the agreement promulgated doing so.18 According to the Board, ministrative Law Judge (ALJ). The by Cordúa did not restrict Section 7 nothing in Epic Systems changed NLRB’s General Counsel argued that rights “in any way,” its promulgation longstanding precedent that Section 7 the revised arbitration agreement was did not violate Section 7—regardless protects “employees when they pursue unlawful in substance and was proof whether it was promulgated in re- legal claims concertedly.”19 So, while mulgated in response to employees’ sponse to protected activity. The Board an employer is permitted, in response protected activity of opting into the noted that it had sometimes held in oth- to opt-in activity, to promulgate arbitra- collective action, that Nguyen’s com- er cases that an employer violated the tion agreements that include class and ment to employees violated the Act, Act when it promulgated an otherwise collective action waivers and to enforce and that Cordúa’s discharge of Ramirez lawful rule in response to protected ac- these agreements in court or in arbitra-

12 tion, an employer may not discipline Shane Muñoz is tion 8(a)(1) by revising an arbitration agreement an employee for joining and filing a Board Certified by in response to protected activity of opting into an FLSA collective action). collective action in violation of such an The Florida Bar in 4 See, e.g., Owen v. Bristol Care, Inc., 702 F.3d agreement, according to the Board’s Labor and Employ- 1050, 1054 (8th Cir. 2013); Contra D.R. Horton, new decision in Cordúa.20 ment Law and is a Inc. v. NLRB, 737 F.3d 344, 349 (5th Cir. 2013). partner with Ford- 5 See Cordúa, 368 N.L.R.B. No. 43, slip op. at Harrison in Tampa. 4. Looking Ahead 6 Id. slip op. at 2. The holding that an employer may 7 Id. S. MUÑOZ promulgate an arbitration agreement 8 Id. with class and collective action waivers Chandler Armistead 9 Id. slip op. at 4. in response to employees opting into is an associate in 10 Id. slip op. at 2. a collective action would seem to be FordHarrison’s Or- 11 Id. equally applicable to promulgation of lando office. 12 Id. slip op. at 3 (citing Epic Systems, 138 S. Ct. at 1626 (emphasis added)). such agreements in response to other 13 Id. similar events, such as the filing of a 14 Id. slip op. at 4 (citations omitted). class or collective action or threatening 15 Id. to file a class or collective action. Also, 16 Id. C. ARMISTEAD while the issue was not presented in 17 Id. at n.14. (The dissent suggested that this Cordúa, the Board’s decision seems conduct denied employees the opportunity to to clearly indicate that the Board would Endnotes consult an attorney; however, Lewis testified that 1 368 N.L.R.B. No. 43, slip op. at 1 (2019). she consulted with two attorneys before signing find unlawful an arbitration agreement 2 138 S. Ct. 1612, 1626 (2018). the agreement.). 18 with a class and/or collective action 3 Murphy Oil USA, Inc., 361 N.L.R.B. 774, 775 Id. slip op. at 4-5. waiver if the agreement provides for (2014) (finding that the respondent violated Sec- 19 Id. slip op. at 5. discipline of employees who file or participate in such actions. Finally, it seems reasonable to expect that the Board’s three key holdings in Cordúa—that an employer may, in response to employees opting into a collective action, promulgate an arbitra- 2020 Winter Meeting tion agreement with class and collective action waivers, that an employer may explain the lawful consequences of not signing such an agreement, and that an employer may not discipline an employee for filing a collective action in violation of an arbitration agreement— will eventually be considered by federal courts of appeals and perhaps by the Supreme Court.

Conclusion Overall, the Cordúa decision is fa- vorable for employers and clarifies the limits of lawful employer conduct sur- rounding mandatory arbitration agree- February 5 – 7, 2020 ments that include class and collective action waivers. However, it is important Hyatt Regency Orlando • Orlando, FL to keep in mind that the Board’s position could change as the composition Visit www.floridabar.org for more details. of the Board changes and as Cordúa is revisited in the courts.

13 FLSA’s NEW AND PROPOSED REGULATIONS, continued from page 1 place” like fitness, nutrition, weight loss, Among other things, in its notice of be “without prearrangement” so that smoking cessation and stress reduction rulemaking the DOL proposes that the it does not occur regularly, such as programs, health goal coaching, paid following be excluded from regular rate when an employee is called in six out time off, paid sick leave, and penalty calculations: (1) payments in lieu of of eight Saturday evenings due to cus- payment scheduling.3 The DOL’s pro- taking holiday, vacation, sick, or paid tomer demand or employee no-shows.9 posed rule, which is estimated to save time off; (2) payments for bona fide Employer contributions to employee over $280 million in litigation costs over meal periods where no work is done accident, unemployment, and legal the next decade, clarifies when unused unless an agreement or course of con- services benefit plans would also be ex- paid time off (PTO), ancillary benefits, duct establishes that the employer and cluded from regular rate determinations and the like may be excluded from the employee have treated such as “hours for overtime compensation purposes.10 regular rate.4 As currently proposed, worked”; and (3) payments for travel The DOL states that particular bo- these modifications to the regular rate expenses incurred by the employee nuses—like employee-of-the-month regulations are business friendly. in furtherance of the employer’s inter- bonuses and severance bonuses— ests, even if they benefit the employee may be excluded from the regular in addition to the employer, provided rate.11 Interestingly, the DOL suggests such are “reasonable” in line with the that employee bonuses for unique or Federal Travel Regulation or within the extraordinary effort not given pursuant realm of “reasonable” business and to preestablished criteria, paid solely industry norms.5 Other employee perks at the employer’s discretion close in that the DOL proposes to exclude from time to the period to which they cor- regular rate calculations because they respond, and not paid pursuant to a promote health or raise morale include: promise, agreement, expectation, or (1) the cost of on-site treatments from regular practice, could be excludable chiropractors, massage therapists, per- from the regular rate.12 This proposal sonal trainers, counselors, employee appears to open the door, just a crack, assistance programs, or physical to the possibility that a narrow group of therapists; (2) on-site or off-site gym bonuses related to performance, albeit access, fitness classes, or gym mem- not to preestablished criteria, could be berships; and (3) wellness programs excluded from regular rate calculations such as health risk assessments, while, historically, bonuses based on biometric screenings, vaccinations, the quality or quantity of performance nutrition classes, weight loss programs, were deemed “nondiscretionary” and smoking cessation programs, exercise includable in the regular rate for over- classes, stress reduction programs, time purposes. and coaching programs.6 So long as they are not linked to a particular level Joint Employment Rule of hours worked or services rendered, Proposal employee discounts on goods or ser- In early April, the DOL issued a no- vices would also be excludable from the tice of proposed rulemaking to revise regular rate.7 The DOL also notes that and clarify the responsibilities of joint certain employer tuition programs like employers with respect to their mutual online courses, continuing education employees for compensation purposes programs, modest tuition reimburse- where the employers are “not comment programs, and assistance repay- pletely disassociated” with respect to ing college debt, would be excludable the employees’ employment.13 For the from the regular rate as employer gifts most part, the DOL’s joint employer or similar payments since they are not proposal codifies the four-point balanc- directly connected to the employee’s ing test first set forth in the Ninth Cir- day-to-day duties for the employer.8 cuit’s decision in Bonnette v. California The DOL further proposes to elimi- Health and Welfare Agency as to when nate the requirement that show-up employers are “joint employers” with and call-back pay be “infrequent and regard to their common employees.14 sporadic” to be excludable from the Specifically, the DOL’s proposed rule regular rate but clarifies that it should focuses on whether the reputed joint

14 employer actually exercises power to The DOL also suggests that there are the employee’s total working hours are hire or fire the employee; supervises circumstances under which a franchi- aggregated for overtime compensation or controls the employee’s employment sor is not a joint employer of the fran- purposes.30 conditions and schedule; determines chisee’s employees.24 In the example Lastly, as expected, the proposed the employee’s pay rate and method; given, the franchisor is a global hospi- rule holds joint employers jointly and and maintains the individual’s employ- tality brand with thousands of hotels op- severally liable for all wages due to the ment records.15 The DOL notes that if, erating under franchise agreements.25 employee.31 apart from the employer, another party The franchisor provides the franchisee benefits simultaneously from the em- with a sample employment application Section 13(a) Exemptions’ ployee’s work and is acting, directly or and handbook and with other forms New Threshold Salary indirectly, in the employer’s interest with and documents related to the fran- Requirement and Highly regard to the employee, this other party chise’s operation.26 Under the parties’ Compensated Employees’ 16 is a joint employer for FLSA purposes. standard industry licensing agreement, Increased Compensation The DOL’s proposal makes clear the the franchisee is solely responsible for Obligation DOL’s intent to render irrelevant the all day-to-day operations including hir- While not determinative of an em- employee’s economic dependence on ing, supervising, and firing employees; the potential joint employer—including ployee’s exempt status, an employee’s setting employees’ pay rates and pay salary has long been one of the key any consideration of the employee’s job methods; and maintaining all required considerations in assessing the indi- specialty or skill, profit or loss oppor- 27 employment records. In this situation, vidual’s eligibility for the FLSA’s execu- tunity, managerial skill, or investment the DOL decrees that the franchisor tive, administrative, and professional in helpers, equipment or materials does not directly or indirectly exercise (EAP) exemptions from minimum wage required for work—to a joint employer sufficient control to be deemed a joint 32 17 and overtime compensation. Effective determination. This proposed rule 28 employer. January 1, 2020, the DOL Wage Hour further states that any person, including Nothing in the proposed joint employ- Division’s (WHD) final overtime com- an organized group, partnership, cor- er rule alters the DOL’s longstanding pensation rule changes the threshold poration, association, trust, individual, practices with regard to “multiple em- standard salary level for EAP exemp- or legal representative, may be a joint ployers who suffer, permit, or otherwise tion eligibility.33 Indicating that the 2004 employer.18 The DOL’s proposal eluci- employ an employee to work separate regulations were substantively compre- dates that operating as a franchisor/ sets of hours in the same workweek” by hensive and expressing a reluctance franchisee, running a business on an- design.29 They are joint employers, and to return to the ambiguities associated other business’ premises, participating in an association’s health or retirement continued, next page plans, or having a business agreement with another that requires the estab- lishment and maintenance of certain employment law compliance policies, does not make joint employer status more or less likely.19 Significantly, the proposed joint employment FLSA regulations specifically address, by example, an entity’s use of a staffing company to procure workers daily.20 Under that example, the packaging company requests from the agency differing number of workers every day depending upon its sophis- ticated analysis of expected customer demand.21 The packaging company, which sets the hourly workers’ pay rate and supervises their work, sends workers home when the workload is insufficient to support their use.22 The DOL states that in this particular sce- nario, the packaging company is a joint employer with the staffing agency as to these employees because it exercises sufficient control over the workers.23

15 FLSA’s NEW AND PROPOSED REGULATIONS, continued with the pre-2004 long duties test, the Additionally, the highly compensated least annually or on a more frequent DOL made no changes to the EAP employee (HCE) exemption, which basis.52 In practical terms, in order to exemptions’ duties in this 2019 rule.34 set such individual’s compensation maintain the exemption, employers The DOL estimates that these new at a minimum of $100,000 per year in must pay EAP employees at least 90% overtime regulations will impact 1.3 2004, including any catch-up pay, rises of the standard salary—$615.60 in the million employees who will now be eli- to $107,432 annually under this 2019 U.S. states—for every workweek dur- gible for overtime compensation unless overtime rule.44 As with the EAP exemp- ing the pay period.53 EAP employees’ their employers raise their compensa- tions, the HCE’s total annual compen- bonuses, incentives, and commissions tion.35 This September 2019 overtime sation of $107,432 must include, at a may be paid toward the remaining 10% compensation rule was crafted as a minimum, $684 per week paid on a of the standard salary throughout the direct result of Nevada v. U.S. Dept. of salary or fee basis.45 This HCE amount designated 52-week year or, if nec- Labor, which invalidated the DOL’s final of $107,432 is significantly less than essary, during the catch-up period.54 2016 overtime rule that the WHD never the $147,414—the 90th percentile of Under the 2019 rule, employers will be enforced.36 In Nevada, the federal dis- all full-time salaried workers nation- allowed to make a final catch-up pay- trict court granted summary judgment ally—that the DOL had initially sug- ment to bring the exempt executive’s, against the government regarding the gested in March 2019.46 At present, administrative’s, and/or professional’s 2016 overtime rule’s implementation the DOL estimates that only 101,800 pay to the required level within one pay because it found the rule “ma[de] over- employees nationwide are classified as period after the designated 52-week time status depend predominately on exempt HCEs.47 Pursuant to this new period.55 An employer can use a previ- a minimum salary level, thereby sup- rule, any final catch-up payment made ously identified calendar or fiscal year, planting an analysis of an employee’s to the HCE after the end of the 52-week or the employee’s work anniversary, job duties.”37 In its issuance of the final period will count only toward the prior as the 52-week period for catch-up 2019 overtime compensation rule, the year’s annual compensation total and purposes.56 If the employer fails to des- DOL acknowledged that the 2016 rule’s not the current compensation year in ignate a 52-week period for catch-up in minimum standard weekly salary jump which it is paid.48 advance, then the calendar year will be from $455 to $913 “was inappropriate The 2019 rule also sets EAP salary the default 52-week period.57 Where a because it excluded from exemption levels in U.S. territories. Specifically, catch-up payment is made for the previ- 4.2 million employees whose duties as of January 1, 2020, $455 per week ous 52-week period’s shortfall, it cannot would have otherwise qualified them is the special salary level for Puerto be counted toward the 52-week period for [the EAP] exemption.”38 The 2019 Rico, the U.S. Virgin Islands, Guam, in which it was paid.58 The 2019 rule overtime rule formally rescinds the and the Commonwealth of Northern also allows an employer to pay an EAP controversial 2016 overtime rule.39 Mariana Islands, and $380 per week employee a prorated amount of his or Currently, pursuant to the 2004 FLSA is the special salary level for American her annual compensation based upon regulations, the minimum standard Samoa.49 The 2019 rule increases the the number of weeks worked where the salary an employee must have to be weekly base rate for exempt motion employee does not work the entire 52- considered for the executive, admin- picture-producing employees to $1043 week period due to the start or end of istrative, professional, and non-hourly (exclusive of board, lodging, and other employment.59 The employer also has computer professional minimum wage facilities) or a proportionate amount the ability to make a catch-up payment and overtime exemptions is $455 per based on the number of days worked.50 to preserve the exemption of the EAP week or $23,660 per year.40 In drafting There is no “salary basis” requirement employee who does not work a full year the 2019 rule and resetting the EAP for this exempt motion picture industry provided that it is paid no later than the exemptions’ standard salary level, the employee.51 next scheduled pay period.60 DOL looked to the 20th percentile of There is one compensation change The DOL further signaled that it full-time salaried workers in the lowest in the 2019 rule that indicates that intends to update salary levels and wage census region, the South, and the DOL is moving toward integrat- Highly Compensated Employee (HCE) the retail industry.41 Effective January ing certain workplace realities in its compensation requirements through 1st, the DOL has set the minimum stan- policy decisions. The new rule allows its rulemaking authority on a more dard salary for the EAP exemptions at employers to count nondiscretionary frequent basis than in the past but $684 per week or $35,568 per year.42 bonuses (i.e., those that are based in its final 2019 regulation, the DOL Employers are permitted to convert this on the quality or quantity of work), backed off its 2016 rule requiring a required salary to equivalent amounts incentive payments, and commissions salary update every three years and for longer periods: biweekly pay of at toward meeting up to 10% of the ex- its 2019 proposal of every four years.61 least $1368; semi-monthly pay of at empt EAP’s standard salary level or the After review of public comments, the least $1482; or monthly pay of at least U.S. territories’ special salary levels if DOL reasoned that it was best to allow $2964.43 such monies are paid to employees at “prevailing economic conditions . . . [to]

16 drive future [exempt salary or compen- or her normal workweek, i.e., that they an employer to take tip credit for any sation] updates.”62 are “roughly equivalent.”69 According amount of time that a tipped employee The DOL rejected a number of sug- to the DOL, if the EAP employee is performs non-tipped duties contem- gestions that these new compensation guaranteed at least $725 per week in poraneously with, or within a reason- requirements be phased in for certain which the employee performs any work, able time immediately before or after, employers, including nonprofits.63 The typically works four or five shifts per performed tipped duties.79 The DOL’s DOL also rebuffed the suggestion that week, and is paid $210 per shift, such previous guidance had stated that there EAP salary thresholds and HCE com- would not violate the exemption’s salary was a 20% time limit on tipped employ- pensation requirements be determined basis requirement.70 The reasonable ees’ performance of non-tipped tasks.80 on a region-by-region or industry basis relationship requirement applies only Non-tipped duties include cleaning and using Bureau of Labor Statistics data.64 when the exempt employee’s pay is setting tables, toasting bread, mak- Rather, the DOL deemed any such calculated on an hourly, daily, or shift ing coffee, and occasionally washing multiple-level salary or compensation basis and not on a salary basis.71 dishes or glasses.81 requirements too administratively and On the other hand, as a result of practically difficult, especially with re- Proposed Modifications the CAA and the new proposed rule, gard to employers doing business in employers who do not take tip credit 65 to Tipped Employees’ more than one geographic area. Regulations will be permitted to establish manda- The 2019 overtime compensation Apart from its final overtime compen- tory, nontraditional tip pools that benefit rule also addresses the effect, on the both tipped employees receiving full exempt status of EAP employees, sation rule on September 27, 2019, the DOL issued a notice of proposed minimum wage (or more) from the em- of minimum guarantees plus extras. ployer and employees—such as cooks, Specifically, if an EAP is guaranteed rulemaking as to tipped employees on October 8, 2019, to account for dishwashers, and janitors—who do not at least the minimum weekly amount 82 needed regulatory changes in light of traditionally receive tips. The tipped required to meet the salary basis test, employees in this mandatory tip sharing such employee can receive additional the Consolidated Appropriations Act of 2018 (CAA) amendment of the FLSA pool must receive a direct cash wage of compensation without losing the ex- 83 regarding tipped employees.72 In do- at least $7.25 per hour. An employer’s emption or violating the exemption’s pay records will have to denote by salary requirement.66 Additional coming so, the DOL withdrew its proposed 73 symbol, letter, or other notation those pensation includes flat sums, bonuses, 2017 tip regulations. In March 2018, the CAA amended Section 3(m) of the employees receiving tips for which the straight-time hourly pay, time and a employer takes no tip credit, as well as half for hours over forty, and paid time FLSA to prohibit employers, whether 67 or not they take tip credit, from retain- the weekly or monthly tip amount each off. Therefore, in addition to a salary 84 74 such employee receives. of at least $684 weekly, an executive, ing employee tips. Pursuant to the In order to avoid unlawfully “keep- administrative, professional, or non- CAA’s alteration of the FLSA, employ- ing” tips, an employer with a manda- hourly computer professional employee ers, managers, and supervisors are tory tip pool must fully redistribute the may receive 2.5% commissions on no longer allowed to keep or share in collected tips when it pays employees sales, or an additional amount for work employee tips, including in tip pooling their wages or as soon as practicable above and beyond the EAP’s “normal” arrangements, under any circumstanc- 75 thereafter.85 The proposed tip regula- workweek, without losing the EAP es. For purposes of these proposed tion thus captures the WHD’s guid- exemption.68 This regulation provides tip regulations, the manager or super- ance in its Field Operations Handbook employers additional and welcome visor must be an exempt executive (FOH) that an employer cannot hold flexibility to secure and retain critical employee under the FLSA’s Section tips, regardless of processing times management and operational person- 13(a)(1) or a management employee nel in a competitive environment. who owns at least a 20% interest in for credit card transactions, but must 76 In a further nod to today’s business the enterprise. Neither the CAA nor distribute tips in the pay period they practices, an exempt EAP’s earnings the proposed tip rule prohibits tip pools are earned, on the scheduled payday, may be computed on an hourly, daily, under the FLSA where tips are shared or if impossible to ascertain, as soon or shift basis, without voiding the ex- only by those employees who custom- as practicable after such payday but 86 emption or violating the salary basis arily and regularly receive tips, such as before the next scheduled payday. requirement, provided two conditions wait staff and bartenders.77 As to tipped In sum, aside from determining the are met: (1) the employee is guaran- employees for whom the employer required tip percentage contribution to teed, without regard to the number of takes tip credit, the proposed regulation a mandatory tip pool, the only control hours, shifts, or days worked, at least retains the notification requirements for an employer may lawfully exert over the exemption’s minimum salary basis tip pool contributions and continues to tips is in their distribution pursuant to a amount; and (2) a “reasonable relation- limit tip credit to the amount of tips the legitimate tip pool, whether traditional 87 ship” exists between the amount guar- employee actually receives.78 The new or nontraditional in nature. anteed the employee and the amount proposed tip regulation, in accord with Pursuant to the CAA’s amendment of the employee actually earns during his recent DOL guidance, further allows continued, next page

17 FLSA’s NEW AND PROPOSED REGULATIONS, continued the FLSA, the DOL and private parties multiplying by half).95 The upward cap ultimately litigation, in the workplace as are permitted to recover in an admin- of what a nonexempt employee may to particular compensation practices. istrative or civil proceeding against the legally work is limited to the employee’s Moreover, where implemented, these employer the amount of tip credit taken fixed salary divided by the minimum regulatory modifications will, in part, by the employer, the sum of tips the em- wage.96 Among other things, failure to result in greater compensation for ployer unlawfully withheld from tipped pay the employee at least minimum employees and continue to encourage employees, and an equal amount in wage via the fixed salary jeopardizes employers to provide ancillary work- liquidated damages.88 Likewise, the the FWW and subjects the employer to place health and insurance benefits. DOL, in its discretion, may now impose liability to the employee for traditional civil money penalties up to $1100 per time and a half overtime.97 M. Kristen Allman instance when an employer impermis- The DOL is now proposing a key is Florida Bar Certi- sibly retains employee tips in violation clarification regarding application of fied in Labor and of the FLSA, where the employer is a the FWW overtime method, which is Employment Law repeat or willful FLSA offender.89 estimated to involve approximately and is Of Counsel The DOL estimates that if the pro- 1.4 million employees.98 Namely, the to Bleakley Bavol posed tip rule is implemented in its cur- DOL proposes to amend the existing Denman & Grace in rent form, approximately $107 million in regulation to plainly state that bonuses, Tampa. tips may be transferred, via mandatory premium payments, or other kinds of M.K. ALLMAN tip pools, from the tipped employees compensation paid to an employee, in who are paid at least the $7.25 hourly addition to the fixed salary, are compat- Endnotes federal minimum wage to back-of-the- ible with the FWW overtime method but 1 90 Regular Rate Under the Fair Labor Standards house employees. Interestingly, the must be included in the regular rate Act, 84 Fed. Reg. at 11888 (proposed Mar. 29, DOL suggests in this notice of proposed calculation for purposes of determin- 2019) (to be codified at 29 C.F.R. pts. 548, 778) rulemaking that employers could cap- ing the half-time overtime due.99 In so [hereinafter Regular Rate]. 2 29 U.S.C. § 207(a)(1)–(e) (2010). ture some of this monetary transfer by stating, the DOL acknowledges that 3 Regular Rate at 11889. reducing back-of-the-house employee some agency verbiage in 2011 could 4 Id. wages so long as employees still receive have been misinterpreted to suggest 5 Id. at 11892–4; Proposed 29 C.F.R. 91 at least the requisite minimum wage. that additional payments to an em- §§ 778.217, 778.219 and 778.320(a)–(b) (2019). ployee, beyond the fixed salary, were 6 Regular Rate at 11895–6; Proposed 29 C.F.R. incompatible with the FWW. Likewise, § 778.224(b)(3)–(4) (2019). Proposed Rule Changes to 7 the DOL notes that since 2011, there Regular Rate at 11896; Proposed 29 C.F.R. Fluctuating Workweek Overtime § 778.224(b)(5) (2019). Compensation Alternative has been an unintended, growing di- 8 Regular Rate at 11896–7; Proposed 29 C.F.R. The fluctuating workweek (FWW) chotomy among courts as to the effect § 778.224(b)(5) (2019); 29 U.S.C. § 207(e)(2) of productivity-based payments (e.g., (2010). method of overtime compensation is 9 commissions) and “hours-based” sup- Regular Rate at 11897–8; Proposed 29 C.F.R. an accepted alternative to the standard §§ 778.221 and 778.222 (2019). plemental payments (e.g., night shift one and a half times the regular rate 10 Regular Rate at 11899; Proposed 29 C.F.R. overtime for nonexempt employees.92 differentials) on the employer’s ability §§ 778.215(a)(2) (2019). 100 11 Currently, under the FWW method, a to claim the FWW overtime method. Regular Rate at 11899; Proposed 29 C.F.R. §§ 778.211(d) (2019). fixed salary is paid to a nonexempt The suggested modifications to the FWW regulation make clear that such 12 Regular Rate at 11899; Proposed 29 C.F.R. employee and that salary is intended §§ 778.211(d) (2019). additional payments of any nature will to compensate the individual for all 13 Joint Employer Status Under the Fair Labor straight-time hours worked in a particu- not, standing alone, jeopardize an Standards Act (FLSA), 84 Fed. Reg. at 14043, lar workweek without regard to whether employer’s and employee’s mutual un- 14044 (proposed Apr. 9, 2019) (to be codified at derstanding to apply the FWW method 29 C.F.R. pt. 791) [hereinafter Joint Employer the employee actually works more or Status]. 93 to the computation of that employee’s less than forty hours. In application, 14 Joint Employer Status at 14043–4. See also the fixed salary must be calculated overtime. Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), abrogated on other to pay the nonexempt employee for grounds in Garcia v. San Antonio Metro Transit all hours actually worked at minimum Conclusion Auth., 469 U.S. 528 (1985). wage or greater.94 Under the FWW, the The final or proposed regulatory 15 Joint Employer Status at 14043–4; Proposed employee would then be due half-time changes discussed above should be 29 C.F.R. § 791.2(a)(1) (2019). 16 overtime for those hours worked in welcome news, perhaps for differ- Joint Employer Status at 14043–4. 17 Joint Employer Status at 14045; Proposed 29 excess of forty that week (i.e., by divid- ent reasons, to both employers and C.F.R. § 791.2(c)(1) (2019). ing the fixed salary by the number of employees. The FLSA rule proposals 18 Joint Employer Status at 14045; Proposed 29 hours worked that particular week and aim to reduce misunderstanding, and C.F.R. § 791.2(d)(1) (2019).

18 19 Joint Employer Status at 14045; Proposed 29 33 Defining and Delimiting the Exemptions for 40 29 C.F.R. § 541.100(a)(1) (2004); 29 C.F.R. C.F.R. § 791.2(d)(2)–(4) (2019). Executive, Administrative, Professional, Outside § 541.200(a)(1) (2004); 29 C.F.R. § 541.300(a) 20 Proposed 29 C.F.R. § 791.2(g)(5) (2019). Sales and Computer Employees, 84 Fed. Reg. (1) (2004); 29 C.F.R. § 541.400(a)–(b) (2004). at 51230, 51234 (Sept. 27, 2019) (to be codified Effective January 1, 2020, exempt adminis- 21 Id. at 29 C.F.R. pt. 541) [hereinafter Defining and trative and professional employees (including 22 Id. Delimiting the Exemptions]. non-hourly computer professionals), but not 23 Id. 34 Defining and Delimiting the Exemptions at executive employees, can also be compensated on a fee basis of not less than $684 per week. 24 Proposed 29 C.F.R. § 791.2(g)(8) (2019). 51233–4, 51244. See 29 C.F.R. §§ 541.200(a)(1), 541.300(a)(1), 35 25 Id. Id. at 51231, 51240. Pursuant to 29 U.S.C. § 541.400(a)–(b) and 605 (2019). A fee payment 26 Id. 207(a), employers are generally required to pay meets the minimum salary threshold if the fee non-exempt employees one and a half times their paid to the administrative or professional em- 27 Id. regular rate of pay for hours worked over forty in ployee, when converted to an hourly amount 28 Id. a workweek. per hours worked, equals or exceeds the weekly 29 Proposed 29 C.F.R. § 791.2(e)(1) and (g)(8) 36 Nevada v. U.S. Dept. of Labor, 275 F.Supp.3d threshold salary had the employee worked forty (2019). 795 (E.D. Tex. 2011) [hereinafter Nevada I]; De- hours. 29 C.F.R. § 541.605(b) (2019). Therefore, 30 Proposed 29 C.F.R. § 791.2(e)(1) and (g)(8) fining and Delimiting the Exemptions, at 51235. if an accountant was paid a fee of $350 to pre- (2019). The government appealed the Nevada I decision pare a SEC disclosure and took twenty hours to to the Fifth Circuit Court of Appeals; the appeal do so, then the accountant would meet the ad- 31 Proposed 29 C.F.R. § 791.2(e)(1)–(2), (f) and was subsequently dismissed. See Nevada v. ministrative or professional exemption’s required (g)(8) (2019). U.S. Dept. of Labor, Case No. 16–41606, Dkt. threshold salary because in converting the fee to 32 Section 13(a)(1) of the FLSA, 29 U.S.C. #10 (Sept. 6, 2017) [hereinafter Nevada II]. an hourly amount for a forty-hour workweek, the § 213(a)(1), exempts bona fide executive, ad- employee would have received $700, an amount 37 Nevada I, 275 F.Supp.3d at 806. ministrative, professional (including non-hourly in excess of the exemption’s standard salary 38 computer professionals), and outside sales Defining and Delimiting the Exemptions at requirement. Id. employees from minimum wage and overtime 51231, 51240. 41 Defining and Delimiting the Exemptions at requirements. 39 Id. at 51235, 51246. 51231. continued, next page

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19 FLSA’s NEW AND PROPOSED REGULATIONS, continued

42 Defining and Delimiting the Exemptions at 50 Defining and Delimiting the Exemptions at ter personnel engaged in serving customers, 51235; 29 C.F.R. §§ 541.100(a)(1), 541.200(a)(1), 51235, 51247; 29 C.F.R. § 541.709 (2019). bellhops, bussers, service helpers, service bar- 541.300(a)(1) and 541.400(a)–(b) (2019). 51 29 C.F.R. § 541.709 (2019). tenders, chefs who have direct contact with 43 customers and prepare or serve meals to them 29 C.F.R. §541.600(b) (2019). 52 Defining and Delimiting the Exemptions in a designated area, bar backs who support 44 Defining and Delimiting the Exemptions at at 51235, 51247; 29 C.F.R. § 541.602(a)(3) the bartender and receive tips from him or her, 51235; 29 C.F.R. § 541.601(a)(1) (2004); 29 (2019). On the other hand, the 2019 rule does and sommeliers who explain the wine list, bring not alter the existing requirement under 29 C.F.R. C.F.R. § 541.601(a)(1) (2019). selected wine to the table and serve custom- 45 § 541.601b)(1) that Highly Compensated Em- 29 C.F.R. § 541.601(b)(1), (2019). While ers wine. Field Operations Handbook, Ch.30, ployees receive the standard salary amount, now the HCE’s total annual compensation includes § 30d04(b). Conversely, the WHD finds janitors, $684, each pay period on a salary or fee basis commissions, nondiscretionary bonuses, and non-performance chefs, dishwashers, laundry without regard to any paid bonuses or incentives. other nondiscretionary compensation, it does room attendants, salad preparers, and prep See 29 C.F.R. § 541.602(a)(3) (2019). not include board, lodging, medical insurance cooks to be non-tipped employees. Id. 53 29 C.F.R. § 541.602(a)(3) (2019). See gener- payments, life insurance payments, retirement 78 Tip Regulations at 53962; Proposed 29 ally Defining and Delimiting the Exemptions at plan contributions, or other fringe benefit costs. C.F.R. § 531.54(c) (2019); Proposed 29 C.F.R. 51248. Id. § 10.28(e) (2019). 54 46 29 C.F.R. § 541.602(a)(3)(i) (2019). Defining and Delimiting the Exemptions at 79 Tip Regulations at 53961; Proposed 29 55 51231. Defining and Delimiting the Exemptions at C.F.R. § 531.56(e) (2019); Proposed 29 C.F.R. 47 Id. 51249; 29 C.F.R. § 541.602(a)(3)(i) (2019). § 10.28(b)(2) (2019). 56 48 29 C.F.R. § 541.601(b)(2) (2019). 29 C.F.R. § 541.602(a)(3) (2019). 80 Tip Regulations at 53963. 57 49 Defining and Delimiting the Exemptions Id. 81 Id. 58 at 51235, 51246; 29 C.F.R. §§ 541.100(a)(1), 29 C.F.R. § 541.602(a)(3)(i) (2019). 82 Tip Regulations at 53957, 53960; Proposed 541.200(a)(1), 541.300(a)(1), 541.400(b) (2019). 59 Defining and Delimiting the Exemptions at 29 C.F.R. § 531.54(b)–(d) (2019). In order to be a 51248; 29 C.F.R. § 541.602(a)(3)(ii) (2019). tipped employee, the individual must be engaged 60 29 C.F.R. § 541.602(a)(3)(ii) (2019). in an occupation that customarily and regularly 61 Defining and Delimiting the Exemptions at receives tips of at least $30 per month. 29 U.S.C. 51252. See 29 C.F.R. § 541.600(a) (2016). §203(t) (2018). Compare with 29 C.F.R. § 541.600(a) (2019). 83 Tip Regulations at 53960; Proposed 29 C.F.R. 62 Defining and Delimiting the Exemptions at § 531.54(b) (2019). Mark Your 51252. 84 Proposed 29 C.F.R. § 516.28 (2019). 63 Defining and Delimiting the Exemptions at 85 Tip Regulations at 53960; Proposed 29 C.F.R. Calendar! 51234–5. § 531.54(b)(1) (2019). 64 Defining and Delimiting the Exemptions at 86 Tip Regulations at 53960; Proposed 29 C.F.R. 51239. § 531.54(b)(1) (2019); Field Operations Hand- 65 Id. book, Ch.30, § 30d05(b). See also 29 U.S.C. § 66 203(m)(2)(B) (2018). 29 C.F.R. § 541.604(a) (2019). 87 67 Tip Regulations at 53961–2; Proposed 29 Id. C.F.R. §§ 531.52(b)(2), 531.54(a) and 10.28(e) 68 Annual Id. (2019). 69 29 C.F.R. § 541.604(b) (2019). 88 Tip Regulations at 53959; 29 U.S.C. § 70 Id. 216(b)–(c) (2018). Florida Bar 71 Id. 89 Tip Regulations at 53960; 29 U.S.C. § 216(e) 72 Tip Regulations under the Fair Labor Stan- (2018). dards Act (FLSA), 84 Fed. Reg. at 53956 (pro- 90 Tip Regulations at 53957. Convention 91 posed Oct. 8, 2019) (to be codified at 29 C.F.R. Id. pts. 10, 516, 531, 578, 579 and 580) [hereinafter 92 See 29 C.F.R. § 778.114 (2011). Tip Regulations]. 93 June 17–20, 2020 73 Id. Tip Regulations, 84 Fed. Reg. at 53956 (Oct. 94 8, 2019). Id. 95 74 29 U.S.C. § 203(m)(2)(B) (2018); Proposed Id. 29 C.F.R. § 531.54(b) (2019). Currently, employ- 96 Id. ers may take tip credit up to $5.12 for each hour 97 Id. Other conditions that must be met to utilize a tipped employee works toward the federal the FWW method of overtime compensation minimum wage of $7.25 per hour provided the include: (1) the employee’s work hours fluctuate employer pays the tipped employee an hourly week to week; (2) the fixed salary is paid regard- cash wage of at least $2.13. See 29 U.S.C. § less of the variance in hours worked week to 203(m)(2)(A) (2018); 29 U.S.C. § 206(a)(1)(C) week; and (3) the employee and employer have (2016). a clear, mutual understanding that the employee 75 29 U.S.C. § 203(m)(2)(A) (2018). An employ- is paid a fixed salary, not subject to deduction, er cannot keep tips, whether paid in cash or by for all straight-time hours worked regardless of credit or debit card, to cover operating expenses, the number of such hours. Id. make capital improvements, or pay vendors. Tip 98 Fluctuating Workweek Method of Computing Hilton Orlando Regulations at 539601. Overtime, 84 Fed. Reg. at 59590, 59596 (pro- 76 Tip Regulations at 53960–1, 53963; Pro- posed No. 5, 2019) (to be codified at 29 C.F.R. pt. Bonnet Creek posed 29 C.F.R. § 531.52(b)(2) (2019). 778) [hereinafter Fluctuating Workweek Method]. 77 Tip Regulations at 53956–7; 29 U.S.C. § 99 Fluctuating Workweek Method at 59593; 203(m)(2)(A) (2018). Previously, the WHD has Proposed 29 C.F.R. § 778.114 (2019). identified tipped occupations as wait staff, coun- 100 Fluctuating Workweek Method at 59593–4.

20 The Florida Bar Labor and Employment Law Section 2019-2020 Audio Webcast Series (3737)

November 20, 2019 March 11, 2020 12:00 p.m. – 1:00 p.m. 12:00 p.m. – 1:00 p.m. Have You Googled It? Website Accessibility Hot Topics in Public Sector Bargaining (3577) Under Title II and Title III of the ADA (3573) This seminar will discuss the recent developments in public This seminar will explore the recent trends and litigation sector bargaining and the cutting-edge issues that employers regarding website accessibility under Title II and Title III of and unions will face at the bargaining table as well as discuss the ADA as well as discuss best practices for handling these best practices for addressing those issues. cases from both governmental entity and private business Nathan J. Paulich, GrayRobinson, P.A., Tampa perspectives. Anastasia Protopapadakis, GrayRobinson, P.A., Miami April 8, 2020 Available Options: ON DEMAND 12:00 p.m. – 1:00 p.m. DOWNLOADABLE AUDIO PODCAST New Rules of Reason or Reasons to Rue? December 11, 2019 NLRB Decisions Changing the Landscape of 12:00 p.m. – 1:00 p.m. the Union and Non-Union Workplace (3578) We’re at Impasse. Now What? Best Practices This seminar will explore why all employers must be cognizant for the Impasse and Special Magistrate of the NLRB and the impact of recent NLRB decisions on all Process (3574) workplaces. This seminar will discuss the impasse process as well as Lisa K. Berg, Stearns Weaver Miller Weissler Alhadeff & provide best practices for handling your case before the special Sitterson, P.A., Miami magistrate. Robert S. Turk, Stearns Weaver Miller Weissler Alhadeff & Thomas W. Young, III, Special Magistrate Sitterson, P.A., Miami Stephanie M. Marchman, GrayRobinson, P.A., Gainesville Available Options: ON DEMAND May 6, 2020 DOWNLOADABLE AUDIO PODCAST 12:00 p.m. – 1:00 p.m. January 8, 2020 What Employers and Employees Need to 12:00 p.m. – 1:00 p.m. Know About the GDPR, CCPA, and Emerging Be an Expert in Handling Experts: Best Privacy Laws (3572) Practices for Expert Designation, Discovery, This seminar will explore the recent legislation regarding privacy Direct and Cross-Examination (3575) and discuss best practices for employees and employers in addressing these recent developments in privacy legislation. This seminar will explore the best practices in federal and state court for designating experts, conducting discovery, and Kevin M. Levy, GrayRobinson, P.A., Miami handling the direct and cross-examinations of experts in labor and employment matters. Samuel J. Horovitz, Rogers Towers P.A., Jacksonville Eric J. Holshouser, Rogers Towers P.A., Jacksonville CLER PROGRAM Max. Credit: 7.0 hours February 5, 2020 General: 7.0 hours for series; 12:00 p.m. – 1:00 p.m. 1.0 hour per program

Flexible Work Arrangements: Legal CERTIFICATION PROGRAM Implications of a Millennial Must-Have (3576) Max. Credit: 7.0 hours Hear the latest on flexible work arrangements and the legal Labor and Employment Law: 7.0 hours; and practical considerations attorneys need to know in advising 1.0 hour per program clients on adopting or electing to participate in such programs. Deborah C. Brown, Brown Law and Consulting, PLLC, Tampa

To register, log into The Florida Bar Members Portal at www.member.floridabar.org, click CLE Events/Meetings and scroll to the desired course, OR click on a title above.

21 Federal Case Notes

By Melissa Castillo, Gainesville

Where an employee failed to disclose his FLSA to list any pending claims). The Eleventh Circuit took claims in his bankruptcy proceedings, made into account the employee’s lack of sophistication but numerous amendments without including the ultimately concluded that the other factors weighed claims, and then listed a claim other than his in favor of a finding that the employee “intended to FLSA claims, judicial estoppel was appropriate make a mockery of the judicial system by pressing under the Slater test. his [FLSA] claims in one forum while denying their Henderson v. Franklin, No. 18-14739, 2019 U.S. App. existence in another.” LEXIS 22755 (11th Cir. July 1, 2019). Because the Eleventh Circuit determined that there In this FLSA case, the Eleventh Circuit affirmed was no abuse of discretion by the district court in summary judgment and an order awarding costs to applying judicial estoppel to the employee’s FLSA C the employer on the grounds that the employee’s lawsuit, it did not address the question of standing FLSA claims were barred by the doctrine of judicial raised in the appeal. The Eleventh Circuit also af- estoppel because of his failure to include the claims firmed the award of costs and found that the employer A in his bankruptcy filings with the intent to mislead the was the prevailing party, even if it had prevailed on bankruptcy court. an affirmative defense. The employee alleged that his employer had vio- S lated the overtime provisions of the FLSA and had A reasonable juror could conclude that the prof- retaliated against him for complaining about the al- fered reasons for termination were pretextual leged violations. Prior to filing his FLSA action, the in a Title VII action for retaliation, where there E employee, represented by legal counsel, filed for was circumstantial evidence beyond temporal Chapter 13 bankruptcy. The employee amended proximity between the protected activity and the his property schedule on multiple occasions to list termination, including the fact that all events a potential personal injury claim against a different serving as reasons for termination occurred after defendant and to add creditors. Plaintiff, pro se, the employer learned of the employee’s protected also converted his Chapter 13 petition to a Chapter activity. N 7 petition on the same day that he filed his lawsuit Tebo v. City of Debary, No. 18-13819, 2019 U.S. App. under the FLSA. None of the amendments to the LEXIS 26573 (11th Cir. Sept. 3, 2019). bankruptcy petition included the FLSA claims against In this Title VII, 42 U.S.C. § 1983, and Florida Civil O the employer. Rights Act (FCRA) case, the employee alleged she To determine whether the district court abused its was discriminated against because of her gender discretion in ruling that judicial estoppel barred the and retaliated against for sending a letter to the T employee’s FLSA claims, the Eleventh Circuit applied EEOC regarding the employer’s alleged discrimina- the two-part test of Slater v. United States Steel Corp., tory conduct. The Eleventh Circuit affirmed summary 871 F.3d 1174 (11th Cir. 2017), which considers (1) judgment in favor of the employer on the employee’s E whether the party took inconsistent positions under gender discrimination claim, finding that the employee oath in separate proceedings, and (2) whether those failed to rebut the employer’s non-discriminatory inconsistent positions were “calculated to make a reasons for her termination, including that the em- mockery of the judicial system.” The Eleventh Circuit ployee undermined her supervisor, failed to obey S found that the first step was satisfied because the the supervisor’s orders, and used an unauthorized employee failed to disclose in the bankruptcy pro- email account. Whether the employer erred as to the ceeding his FLSA claims against the employer and reasons for the employee’s termination or whether the then pursued those claims in court. In determining employee “actually” engaged in the behaviors that led that the second step was satisfied, the Eleventh Cir- to the termination was “not relevant” to the court’s in- cuit reasoned that several factors indicated that the quiry because the “inquiry into pretext centers on the employee intended to mislead the bankruptcy court, employer’s beliefs, not the employee’s beliefs and, including the fact that he “was specifically asked to be blunt about it, not on reality as it exists outside on his property schedule to list any claims ‘whether of the decision maker’s head.” or not [he had] filed a lawsuit or made a demand However, the Eleventh Circuit reversed and re- for payment’” and the fact that he listed a separate manded the summary judgment for the employer personal injury claim in a subsequent amendment on the retaliation claim, finding it relevant that all the but omitted the FLSA claims (thus demonstrating he reasons for the employee’s termination arose from understood he was required to amend his disclosures conduct that occurred or was discovered after the

22 employer learned of the employee’s EEOC complaint. ADA is broad enough to prohibit an employer from The Eleventh Circuit found the employee established firing an employee because the employer perceives a prima facie case of retaliation and created a jury that the employee will imminently contract a disease question as to whether the employer’s proffered rea- in the near future.” Even interpreting the statutory sons for termination were pretextual. The Eleventh definition of “disability” broadly, the Eleventh Circuit Circuit reasoned that the close temporal proximity of concluded that the terms of the ADA protect only merely thirty-two days between the employee’s pro- those individuals who experience discrimination be- tected activity and the termination, combined with the cause of a current, past, or perceived disability, not fact that all of the events serving as alleged reasons a disability that could possibly develop in a healthy for the termination followed the employee’s protected person in the future. activity, supported reversal of the summary judgment for the employer. The Eleventh Circuit concluded Summary judgment is denied where a jury ques- that a jury could reasonably infer that the employer tion exists regarding cat’s paw theory of liability was looking for reasons to terminate the employee on employee’s sexual harassment claim; sum- after learning of the EEOC complaint, which showed mary judgment is granted in favor of employer C retaliation. on Title VII retaliation claim where comparators had very different employment roles and did not The scope of “impairment” under the “regarded engage in the “same basic misconduct.” A as” prong of the ADA extends only to current, Smith v. City of Birmingham, No.: 2:17-cv-00983- past, or perceived disabilities, not to potential or JHE, 2019 U.S. Dist. LEXIS 161546 (N.D. Ala. Sept. future disabilities. 23, 2019). S EEOC v. STME LLC, Nos. 18-11121, 18-12277, 2019 In this Title VII case out of the Northern District of U.S. App. LEXIS 27499 (11th Cir. Sept. 12, 2019). Alabama, the court denied the employer’s motion In this ADA case, the Eleventh Circuit addressed for summary judgment as to the employee’s sexual E an issue of first impression as to the meaning of “re- harassment claim but granted summary judgment garded as having such an impairment” in 42 U.S.C. as to the employee’s retaliation claim. The employee § 12102(1)(C) and concluded that the ADA protects was a municipal worker who alleged she was termi- only persons who experience discrimination because nated from her employment because she refused of a current, past, or perceived disability—not be- the advances of her immediate supervisor. Although cause of a potential future disability that a healthy the employee was not terminated by her immediate N person may experience later. supervisor, the employee alleged the firing supervisor The EEOC brought this claim on behalf of the em- served as the immediate supervisor’s “cat’s paw.” The ployee, alleging the employer violated the ADA by employee also alleged the termination was retaliation O terminating the employee after she refused to cancel for filing an EEOC charge. her trip to Ghana. The employer’s reason for termina- In the sexual harassment claim, the court found tion was its fear that the employee might contract and there was a jury question as to whether the em- T develop Ebola due to her Ghana travel. The Eleventh ployer’s tangible employment action against the em- Circuit found that the meaning of “impairment” in the ployee was linked to the alleged sexual harassment. “regarded as” prong requires a plaintiff to demonstrate The employee prevailed on her cat’s paw theory by that the employer knew the employee had an actual presenting deposition testimony that her immediate E impairment or perceived the employee to have such supervisor had told her his recommendation would an impairment at the time of the adverse employment impact whether she would be retained and said, “If action. The plain language of the ADA prohibits ac- you would have did [sic] what I told you to do, then S tion based only on an impairment that exists at the you would have had your permanent position.” The time of the alleged discrimination. The “regarded court noted that the employer focused its argument as” prong cannot be read in isolation. Statutory con- on whether the immediate supervisor had the power struction requires “that ‘impairment’ in the ‘regarded to terminate the employee, ignoring the notion that as’ statutory prong, § 12102(1)(C), [be afforded] the the immediate supervisor’s recommendation could same meaning as ‘impairment’ in the actual disability ultimately result in her termination, and failed to prong.” Moreover, the Eleventh Circuit has held that a assert a proper defense to the employee’s tangible predisposition to develop an illness is not a physical employment action theory. impairment. The court rejected the EEOC’s argu- In the retaliation claim, the employee asserted the ment regarding the applicability of the Dictionary Act causal connection prong was met because she was (“words used in the present tense include the future treated differently from her immediate supervisor, as well as the present”), finding that although there who she asserts was “similarly situated.” In light of are present tense verbs in the statute, the ADA’s plain Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. language and context preclude a finding that “the 2019), where the Eleventh Circuit explained that

23 “at the prima facie stage, a plaintiff must show she different employment roles. Moreover, the employee and any ‘proffered comparators were “similarly situ- and her immediate supervisor did not engage in the ated in all material respects,”’” the court considered “same basic misconduct” because the supervisor’s whether the immediate supervisor had (1) “engaged misconduct pertained to his supervisory duties, which in the same basic conduct (or misconduct) as the the employee did not have. The plaintiff’s argument plaintiff,” (2) “been subject to the same employment that her immediate supervisor was “unqualified and policy, guideline, or rule as the plaintiff,” (3) “been incompetent” as a manager did not speak to how under the jurisdiction of the same supervisor as the the employer treated her because the employee plaintiff,” (4) and shared “the plaintiff’s employment or was not a manager. In sum, the employee failed to disciplinary history.” The court reasoned that because demonstrate she and her immediate supervisor were the plaintiff was a temporary line employee and her “similarly situated in most material respects, let alone supervisor was a permanent manager, they had very all,” under Lewis. C A State Case Note

S The Florida Public Sector Whistleblower’s Act The Third DCA held that the remedies section of the does not preclude noneconomic compensatory FPWA does not preclude the availability of noneco- damages or other applicable recoverable dam- nomic damages not explicitly listed in the provision, E ages not explicitly identified within the statute. reasoning that the provision creates a “floor, rather Iglesias v. City of Hialeah, No. 3D18-639, 2019 Fla. than a ceiling, on the types of relief that a party can App. LEXIS 11652 (Fla. 3d DCA July 24, 2019). seek” under the statute. The court cited O’Neal v. Fla. In this case, the Third District Court of Appeal of A&M Univ. ex rel. Bd. of Trs. for Fla. A&M Univ., 989 Florida reversed the trial court’s denial of noneco- So. 2d 6, 14 n.5 (Fla. 1st DCA 2008), a First District nomic damages for the appellant/cross-appellee, Court of Appeal case, which found that relief “must N finding that noneconomic compensatory damages are include” the remedies set out in the statute but is not not barred under the Florida Public Sector Whistle- limited only to those remedies. blower’s Act (FPWA), and affirmed the denial of the O appellee’s/cross-appellant’s motion for summary judgment. Iglesias, a member of the Hialeah Police Melissa Castillo is a third-year Department, alleged that the police department had law student at the University of T continued to enforce ticket quotas, which had been Florida Levin College of Law. banned by the Florida legislature. He brought a claim in the trial court against the city pursuant to the FPWA, alleging that the city retaliated against him for com- E plaining about ticket quotas. The trial court ruled that Iglesias could not seek noneconomic compensatory S damages under the FPWA. M. CASTILLO

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