Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

On January 31, 2017, the Supreme Court of Florida issued an opinion regarding the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”). This decision is of extreme importance to the health care industry in Florida as it will significantly impact the peer review activities of hospitals and other health care providers within the state. Continue Reading Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

IMMIGRATION NEWS FLASH: USCIS Filing Fees Increased Significantly on December 23, 2016!

image On December 23, 2016, the U.S. Citizenship and Immigration Services (USCIS) significantly raised filing fees for over three (3) dozen types of petitions and applications filed to seek immigration benefits. The last filing fee increase was in November 2010.Continue Reading IMMIGRATION NEWS FLASH: USCIS Filing Fees Increased Significantly on December 23, 2016!

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

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 New Overtime Rules Have Far-Reaching Effects

PUBLIC RECORDS LITIGATION: Condition Precedent for Seeking Attorneys’ Fees Against the State

In a recent case – State of Florida, Department of Economic Opportunity v. Consumer Rights, LLC – the First District of Appeal reversed the trial court’s award of attorney’s fees under Florida’s public records law, because the party seeking the public records failed to give notice of the claim for attorney’s fees to the Department of Financial Service at the time it filed the complaint pursuant to Section 284.30, Florida Statutes.

Section 284.30, Florida Statutes, provides as follows:

State Risk Management Trust Fund; coverages to be provided.—A state self-insurance fund, designated as the “State Risk Management Trust Fund,” is created to be set up by the Department of Financial Services and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees. (Emphasis added.)

In its opinion, the Court noted that “[t]he statute explicitly excludes eminent domain, inverse condemnation, or Public Employees Relations Commission suits from this statute’s requirements. If the Legislature sought to exclude public records cases from these requirements, it would have listed it with the other exclusions. As such, the plain language of the statute shows that the Legislature intended to include public records cases within its purview.”

Accordingly, the Court concluded that the notice requirement of Section 284.30 was a condition precedent to the award of attorney’s fees and reversed the award of fees in this case, despite a finding by the trial court that the agency had “unjustifiably delayed in producing the records” in violation of Chapter 119, Florida Statutes.
A motion for rehearing has been filed with the Court.

For more information regarding this issue or other open government issues, contact Mark Herron at mherron@lawfla.com

EDUCATION LAW – Federal Court holds that commercial banner hung on school fence is not entitled to any First Amendment free-speech protection

School boards often have programs allowing private businesses or organizations to hang banners on school property in return for donations to support school activities. The banners are a way of saying “thank you” to these businesses and organizations for their financial support. These banner programs raise a host of liability issues for school boards under the First Amendment – depending upon whether the banners are considered “private speech” or “government speech.”
Continue Reading EDUCATION LAW – Federal Court holds that commercial banner hung on school fence is not entitled to any First Amendment free-speech protection

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 EEOC Extends Workplace Protection for Sexual Orientation

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 Empoyment Law Update: FMLA Protections