Employment Law

Employees Can’t be Fired for Being Homosexual or Transgender

It is now a violation of federal law for an employer to fire an employee because the employee is homosexual or transgender.

The United States Supreme Court, issued its ruling, in a 6 to 3 decision, on June 15, 2020, in the case of Bostock v. Clayton County, Georgia. Under the Court’s ruling, Title VII of the Civil Rights Act of 1964 now prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBT) status.

The Court’s decision changes the law of Florida. The federal Eleventh Circuit Court of Appeals (which encompasses Florida, Georgia and Alabama) had previously held that sexual orientation was not protected under Title VII.

In the opinion for the majority, Justice Neil Gorsuch stated:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Chief Justice John Roberts Jr. and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined the majority. Justices Samuel Alito Jr., Brett Kavanaugh and Clarence Thomas dissented.

Significantly, the Court did not address the effect of today’s ruling on sex-segregated bathrooms, locker rooms, and dress codes. These other issues will continue to be hotly litigated.

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Selected Highlights of Families First Coronavirus Response Act (FFCRA) (March 19, 2020)

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. Here are some highlights of the Act for employers:

FFCRA

  • takes effect: April 1, 2020
  • three major provisions for employers:
    • amends FMLA
    • establishes paid sick leave requirement
    • provides for tax credits for employers

Emergency Family and Medical Leave Expansion Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • if employed at least 30 days
  • Triggering Event for Benefit:
    • unable to work or telework due to need to care for employee’s child (under 18 years old) because child’s school or place of care is closed due to a public health emergency
  • Benefit:
    • 12 weeks of job-protected leave
    • 1st 10 days of leave may be unpaid
    • remainder of leave must be paid at two-thirds the employee’s regular rate
    • however, paid leave is capped at $200/day and $10,000 aggregate per employee
    • job restoration entitlement may not apply to small employers (less than 25 employees) under some circumstances

Emergency Paid Sick Leave Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • all full-time and part-time employees (regardless of length of employment)
  • Triggering events:
    1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
    3. Employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
    4. Employee is caring for an individual subject to a quarantine or isolation order or who was advised by a health care provider to self-quarantine due to COVID-19 concerns;
    5. Employee is caring for a son or daughter because the child’s school or place of care is closed or unavailable due to COVID-19; or
    6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Benefit:
    • Full time employees entitled to:
      • 80 hours of paid sick leave at employee’s regular rate – for reasons 1, 2 and 3
      • 80 hours of paid sick leave at two-thirds of the regular rate – for reasons 4, 5 and 6
    • Part-time employees entitled to:
      • Paid sick leave based on average number of hours worked during the prior 6 months
  • Caps on paid sick leave:
    • Capped at $511/day and $5,110 total per employee for reasons 1, 2 and 3
    • Capped at $200/day and $2,000 total per employee for reasons 4, 5 and 6
  • Other provisions:
    • Sick leave does not carry over to following year

Tax Credits for Paid Sick and Paid Family and Medical Leave

  • Employers entitled to payroll tax credits for payments made to employees

The foregoing is merely a summary of some of the primary provisions of the Act which apply to employers generally. There are many other detailed provisions that are not set forth here. If you have a particular question regarding how the FFCRA applies to you and your employees in particular, you should contact your legal counsel for advice.

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Employee Medical Leave Requests: Balancing the FMLA and ADA

When employees request a leave of absence due to medical issues, the Family and Medical Leave Act (FMLA) requires covered employers, those with 50 or more employees, to provide employees twelve weeks of unpaid leave for qualifying medical reasons. However, what if an employee needs more than twelve weeks of leave? Or, what if an employee has already used all of the employee’s FMLA leave for the year but needs more time off? Is the employer required to grant long periods of medical leave to employees in these circumstances? That question was recently addressed by two federal courts of appeal. Continue Reading →

The New I-9 Form And Increased Employer Fines For Violations

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new I-9 Employment Eligibility Verification Form. (All employers are required to complete an I-9 Form for each new employee to document the verification of the employee’s identity and authorization to work). The new I-9 Form is effective January 22, 2017, employers should start using the new I-9 Form immediately for all new hires and reverifications. The prior version, which has been in effect since 2013 is now obsolete. The new I-9 Form can be found here: https://www.uscis.gov/i-9. Continue Reading →

New Overtime Rules Have Far-Reaching Effects

This week the Obama Administration released a final rule, effective December 1, 2016, which significantly raises the salary threshold for workers to qualify for overtime. Previously, many employees who earned to $23,660 were entitled to overtime pay at time-and-a-half compensation for any hours worked in excess of forty during the week. Under the new rule, the threshold is now at $47,476, meaning that many employees who make up to $913 per week are entitled to time-and-a-half compensation if they work over 40 hours per week. In addition to raising the threshold for exempt employees, the Rule also raises the threshold to be considered a “highly compensated employee” under the Fair Labor Standards Act from $100,000 to $134,004 annually. Continue Reading →

EEOC Extends Workplace Protection for Sexual Orientation

On the heels of the U.S. Supreme Court’s landmark same-sex marriage decision, the EEOC has issued a decision of its own that could help extend workplace protections for the LGBT community. On July, 15, 2015, the EEOC ruled that existing civil rights laws bar workplace discrimination on the basis of sexual orientation. The complaint was filed by a federal air traffic control employee against the Secretary of the Department of Transportation, alleging that the complainant was denied a job opportunity because of his sexual orientation. After the Department dismissed the complaint, the complainant appealed the decision to the EEOC, which reversed the Department’s decision. Continue Reading →

CRIMINAL BACKGROUND CHECKS

In 2012, the EEOC issued guidance to employers regarding the use of criminal background checks as a pre-employment screening process. link The Agency believed that the use of criminal background check would or could lead to a disparate impact on black job applicants. In its guidance, the Agency stated, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.

On Tuesday, in its continued effort to limit the use of background checks, the EEOC filed suit against Dollar General Corp and a U.S. unit of German auto maker BMW, AG alleging that the companies’ policies regarding the use of background checks had the effect of discriminating against black applicants.

Despite its actions, EEOC senior Counsel James A. Paretti Jr., speaking the American Bar Association ‘s Labor and Employer Conference, explained that the EEOC was not seeking to bar the use of criminal background checks but wanted employers to at least consider what it calls the “Green Factors” in making its employment decisions. In Green, the 8th Circuit identified three factors that it considered relevant to assessing the applicant’s criminal record as it related to the job being sought. They are:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

See Green v Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).
Employers are cautioned that the use of background checks without consideration of the “Green Factors” could lead to litigation by either a rejected applicant or the EEOC.

For more information on this case and other employment law related matters, please contact Brennan Donnelly at bdonnelly@lawfla.com

U.S. Department of Labor Finalizes Rules On Employment of Veterans and Disabled Persons

Employers with Federal Government contracts are affected by the final rule proposed by the USDOL. On September 24th the USDOL published two final rules in the Federal Register aimed at increasing hiring of disabled persons and veterans. The rules are effective on March 24th 2014 and federal contractors wil be required to comply with the new rules by that date. Both rules establish minimum goals for hiring disabled employees and veterans. You can view the new rule regarding veterans at
https://www.federalregister.gov/articles/2013/09/24/2013-21227/affirmative-action-and-nondiscrimination-obligations-of-contractors-and-subcontractors-regarding#h-6. You can view the new rule regarding disabled persons at
https://www.federalregister.gov/articles/2013/09/24/2013-21228/affirmative-action-and-nondiscrimination-obligations-of-contractors-and-subcontractors-regarding#h-18.

By: Brennan Donnelly

Empoyment Law Update: FMLA Protections

The U.S. Department of Labor issued a final rule implementing two important expansions of FMLA protections.  In 2008 the FMLA was amended to provide employees with family members serving in the Armed Forces, National Guard and Reserves with FMLA leave for reasons related to their family members’ military service. In 2010 the FMLA was again amended, expanding the military-related leave protections. The FMLA was also amended to include a special eligibility provision for airline flight crew employees. Continue Reading →

Employment Law Update

Employers need to be aware of a new tool in the plaintiff’s employment lawyer’s arsenal: the Florida Minimum Wage Law (FMWL).

Although Florida voters passed the law in 2004 as an amendment to Florida’s Constitution, codified at Article X, Section 24, Florida Constitution, it has been largely ignored by the plaintiff’s bar until recently.  The legislative implementation of the constitutional provision is found at §448.110, Florida Statutes.

Continue Reading →