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Employer lawyer Florida

Back in 2015 Houston, Texas attempted to and failed to pass an expanded human equal rights ordinance (“HERO”) which would have made it illegal to discriminate against someone based on 15 different “protected characteristics,” including sex, race, religion, sexual orientation and gender identity.

Now, the State of Texas has thought it prudent to follow the lead of North Carolina and pass a state wide law restricting bathroom access.

Texas Senate Bill 6 would require transgender people to use bathrooms in public schools, government buildings and public universities based on “biological sex.”  The measure would also preempt local nondiscrimination ordinances (these are the HERO or HROs that more liberal or progressive cities pass to provide protection within city limits) that allow transgender Texans to use the bathroom that corresponds with their gender identity.

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Not surprisingly, like North Carolina’s HB-2 there may be a large negative economic impact if Texas passes Senate Bill 6.   Texas politicians have already invited the ire of the NFL, large companies and celebrities/entertainers by proposing to limit bathroom access by “biological sex”.

“Biological sex” is defined in the bill as “the physical condition of being male or female, which is stated on a person’s birth certificate”.   What’s so complicated about that, you ask.

  • First, as many as 1 in 1,500 babies are born with ambiguous genitalia that qualify them as “intersex”.
  • Second, thousands of the 1.4 million transgender Americans have had sex-reassignment surgery, which means that many people who were designated as male or female at birth now have “the physical condition” of being another gender.
  • Third, for transgender people who retain the biological markers of their original gender identification (because they choose not to undergo surgery or cannot afford it), many transgender women and men feel not only uncomfortable but endangered when being forced to use a bathroom that does not mesh with their identity.

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Baffled by bathroom litigation and how to handle bathroom access, I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), and here (litigation involving Hobby Lobby that included restroom access claims).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

After previous efforts that failed in 2012 and 2016, the City of Jacksonville, Florida has now passed an expanded human rights ordinance (“HRO”) that provides employment and housing protections based on sexual orientation and gender identity.

This time around the City Council addressed several issues that created hurdles during the prior efforts to expand the HRO.

  • First, sexual orientation and gender identity are defined in the HRO;
  • Second, gender identity must be demonstrated in a “consistent and uniform” manner and be sincerely held, not asserted for “improper, illegal or criminal purpose”.

These two provisions are designed to address the scenario, much discussed in the news, where a man dresses up as a woman solely to invade the women’s restroom for nefarious purposes.

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  • Third, addressing the locker room issue, the HRO states that businesses can still provide single sex facilities for anything that is, by its nature, a private facility, like a single-sex bathroom.  Businesses will not be required to change any existing signage or retrofit any existing facility.
  • Fourth, dress codes are also allowed under this bill, but cannot be based on “sex stereotype”- meaning a business cannot tell a secretary to wear a skirt if she’s female (if your dress code requires women to wear skirts or high heels or makeup, you are already asking for trouble).  Rather, the dress code would require the secretary to be dressed professionally.

Additionally, the City of Jacksonville provided carve outs for religious institutions and small businesses.

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Befuddled by bathroom litigation, I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), here (addressing Houston’s bathroom access ordinance) and here (litigation involving Hobby Lobby that included restroom access claims).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Happy New Year!  Also, its time for Florida employers to pay attention to the new 2017 Florida minimum wage.  As of January 1, 2017, Florida’s minimum wage will rise from the current rate of $8.05 per hour to $8.10 per hour.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region.  Based upon this year’s calculation, Florida’s new minimum wage for 2017 is $8.10 per hour.

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Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage.  However, the employer must pay tipped employees a direct wage.  The direct wage is calculated as equal to the minimum wage, $8.10, minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.08.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

By many accounts, North Carolina has lost in excess of $400 million in business revenue (and a whole lot of basketball games) due to HB2.  HB2, for those who don’t know, is the controversial law that limited who could use which bathrooms and was the subject of fierce protests by many in the LGBTQ communities.  HB2 also limited state level discrimination claims (later rescinded by the legislature) and restricted the ability of local municipalities to raise the minimum wage.

Now, Charlotte City Council has repealed their non-discrimination ordinance in an effort to strike a deal with North Carolina’s state legislature to repeal HB2 and return things to the status quo.  And, the status quo may actually be better for transgender Tar Heels because they will no longer be “formally” banned from public bathrooms.  However, Charlotte’s repeal only goes into effect if the State of North Carolina repeals HB2 and that did not come to pass even after 9 hours of debate yesterday.

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The bathroom battles are not over in North Carolina or nationwide (especially with a new administration waiting in the wings).   But, in general, employers and private companies are better off permitting access to the bathroom that transgender employees and customers choose to use.

I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), here (addressing Houston’s bathroom access ordinance) and here (litigation involving Hobby Lobby that included restroom access claims).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

News today that New York Attorney General Eric Schneiderman has reached agreements with several large retail companies to limit on-call scheduling of employees.  On-call scheduling has been a way for large companies with fluctuating staffing needs to schedule employees depending on weather, holidays, shopper volume, etc.  However, many employee rights’ organizations have lobbied against what they see as an unfair practice since on-call scheduling may make cause employees difficulties in scheduling transportation, child care, school/classes, or other employment.

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While Florida does not have a reporting time pay law, several other states require employers to compensate employees a minimum number of hours in pay if they report to work.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

23 states, plus the District of Columbia and Guam permit some form of medical marijuana use.  And, there are various medical marijuana ballot provisions, including currently in Florida, which likely will lead to more states permitting medical marijuana after this November’s election.

Despite the overwhelming change of law at the state level, federal law still classifies marijuana as a Schedule I drug.  Schedule I drugs are defined as having “no currently accepted medical use and a high potential for abuse.”  So, its no surprise that with almost half the states approving medical use of marijuana there would come a time in which the Drug Enforcement Administration (“DEA”) would have to revisit marijuana’s classification.  That time is now, with the DEA indicating it will issue new guidance on marijuana during the first half of 2016

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Descheduling, or the more likely rescheduling, could, over time, have a big impact on employers seeking to enforce a “drug free workplace.”  Employers do not violate the Americans with Disability Act (“ADA”) when they test for illegal drugs, but if marijuana becomes a descheduled or rescheduled drug, the gray area as to the legal treatment of  marijuana grows grayer.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

There has been a ton of news coverage regarding North Carolina’s new bathroom access law included within HB-2.   I’ve written several posts on bathroom access and employment litigation regarding bathroom access.  See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), here (addressing Houston’s bathroom access ordinance) and here (litigation involving Hobby Lobby that included restroom access claims).

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Somewhat lost in the hub-bub over the bathroom and locker-room access restrictions, is the more important news that North Carolina’s recent changes to its discrimination laws included a dramatic change that likely removed a private right of action for all North Carolina employees who may have complaints or claims regarding any type of discrimination.   While the LGBT community has been protesting these changes, there has been little focus on the fact that HB-2 has changed the rights of all North Carolina employees to bring discrimination lawsuits based on race, religion, color, national origin, age, biological sex or handicap pursuant to state law.

Specifically, North Carolina Statute § 143-422.3 was amended to provide that

This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.

That change likely translates, in practice, to mean that North Carolina employees will have to file complaints with the United States Equal Employment Opportunity Commission (“EEOC”) and thereafter file their lawsuits solely in Federal Court.  While the North Carolina local politicians shrug off these implications, this change in law will likely mean fewer employment discrimination lawsuits in North Carolina due to statute of limitation differences between federal and state law.

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Additionally, HB-2, also limits home rule by towns, cities and counties in North Carolina that want to provide greater protection and rights to their citizens.  Changes to local ordinances to include explicit protection to the LGBT community has been a successful way for this community to gain more protection county by county and town by town in Florida.  See more on this issue over on Fox’s Employment Discrimination Report blog.

Legal challenges to North Carolina HB-2 are already under way.  In fact, one of my former law school professors, Angela Gilmore, is a named Plaintiff is a lawsuit already filed by the ACLU.  I took my first year Real Property course with Professor Gilmore and received an A.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

March madness, sweet sixteen games start tonight.  Here is a post from a couple of years ago with some good reminders regarding risks of betting pools in the workplace.  Also, go Terps!

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As I previously posted, medical marijuana has made Florida’s 2016 ballot and is likely to pass muster this time around (in 2014 medical marijuana received 58% of the Florida vote, falling just short of the 60% necessary to pass).

So, assuming that Florida employers will soon be faced with questions from medical marijuana using employees lets explore whether Florida employers will have a duty to accommodate such employees.  Like with many new laws, litigation over the question will eventually give us a more certain answer.

But, in the meantime, Florida employers can look to case law authority for similar medical marijuana laws in other states.  First, lets start with the relevant Florida ballot language which provides:

(6) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.

This Florida ballot language is similar to language from the medical marijuana statutes of Alaska, California, Maryland, Massachusetts, New Mexico, etc. which simply serve to decriminalize medical use of marijuana.

And, Florida’s ballot language does NOT include “duty to accommodate” language that is found in the medical marijuana statutes of Arizona, Delaware, Maine, New York, etc.   For example, Arizona’s statute provides the following protection for employees:

An employer may not discriminate against a person in hiring, termination or
imposing any term or condition of employment or otherwise penalize a person
based upon either:
-the person’s status as a cardholder;
-a registered qualifying patient’s positive drug test for marijuana
components or metabolites, unless the patient used, possessed or was
impaired by marijuana on the premises of the place of employment or
during the hours of employment.

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Recently, the United States District Court for the District of New Mexico dismissed a lawsuit brought by an employee who was fired after testing positive for marijuana after utilizing medical marijuana as permitted by New Mexico law (which is similar to Florida’s ballot language).

In the New Mexico case, Rojerio Garcia, during his job interview, disclosed his serious medical condition, HIV/AIDS, and further disclosed that he treated his medical condition with medical marijuana.  Mr. Garcia was hired and underwent a drug test which he subsequently failed.  Accordingly, Tractor Supply, the employer, discharged Mr. Garcia on the basis of the failed drug test.

Mr. Garcia filed suit and argued that New Mexico’s Compassionate Use Act (“CUA”), which permits the use of marijuana for medical purposes should be considered in combination with New Mexico’s Human Rights Act, which prohibits employers from discriminating on the basis of a serious medical condition.  As such, Mr. Garcia argued that New Mexico employers must accommodate an employee’s use of medical marijuana for a serious medical condition under the New Mexico Human Rights Act.

The Court disagreed.  It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico’s law did not.  Consequently, Mr. Garcia did not have a claim under the CUA because the law did not provide a duty to accommodate.

Florida’s proposed medical marijuana law language is more akin to New Mexico and other states where there is no affirmative duty to accommodate medical marijuana use.  As such, Florida employers should expect that enforcement of a non-discriminatory drug free policy will likely remain permissible but also complicated.

Check back, as I’ll be posting more on what Florida employers need to know about medical marijuana in the workplace.

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Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Medical marijuana, which narrowly failed to pass (with 58% support, less than the 60% required) in 2014, will be back on the 2016 ballot.  The group supporting the medical marijuana initiative has now collected the required number of verified signatures.

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Most experts expect the medical marijuana initiative to pass this time around since it will be on the ballot during a presidential election year which, normally, increases voter turn-out.

Check back, as I’ll be posting more on what Florida employers need to know about medical marijuana in the workplace.
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Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.