Employer lawyer West Palm Beach

It is pumpkin spike latte time here in Florida which is one of the only signs of fall with our tropical weather.   Fall also is time for Florida employers to pay attention to the new 2018 Florida minimum wage.  As of January 1, 2018, Florida’s minimum wage will rise from the current rate of $8.10 per hour to $8.25 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 2018 is $8.25 per hour.

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, $8.25, minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.23.

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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.

Hurricane Irma did a number on South Florida and the Keys and while many people have no power and damage (myself included), we are all getting back to work.  Over the next few days I’m going to focus my posts on post-Irma employment law issues.

Before and during the storm, I noticed some companies were getting bad press for requiring their employees (mostly low paid non-exempt [hourly] service workers) to come into work when Florida’s Governor, Rick Scott, was imposing mandatory evacuations in many areas.

First, requiring employees to work during mandatory evacuations means bad press on social media and in the news.  These days, news stories can quickly become viral and can negatively impact your company brand and your business.

Second, while there is no Florida state law that prevents termination of at-will employees who fail to report to work (even during an emergency) there are other protections for employees.

Specifically, the Occupational Safety and Health Administration (“OSHA”) provides guidance to employers and employees regarding hurricane preparations and post-storm response.  Also, under the OSHA Act, it is against the law for an employer to retaliate against an employee who demands a safe and healthful workplace.  Obviously there are exceptions to the OSHA rules for first responders and some government workers.

While the OSHA anti-retaliation provision may not protect an employee who evacuates, if you are demanding that your employees work in an area where there is a mandatory evacuation your employees could certainly claim that the workplace was not safe at that time.  Employers in this situation may want to consider closing their operations so employees can evacuate or prepare for the impending storm.  Alternatively, companies may want to ask for volunteers to work during an emergency situation and/or not impose harsh penalties on employees who are no-shows.

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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.

Please see my update, over on Fox’s In the Weeds, on the Florida Legislature’s success in passing a medical marijuana bill during the recent special session.  Now we wait on Governor Rick Scott to sign the bill, which he is expected to do.

Once Gov. Scott signs the bill into law, Florida Statute s. 381.986 (Compassionate use of low-THC and medical cannabis law) will be amended to state the following:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.  This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.  This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

What that means is that employers will have some protections to maintain drug free workplaces and to discipline or terminate employees under the influence of medical marijuana.  But with all new laws, litigation establishing rights of employers and employees is likely.

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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.

See my post over on Fox’s In the Weeds, regarding the Florida Legislature’s failure to pass regulations implementing Amendment 2 (medical marijuana).

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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.

See my post over on Fox’s In the Weeds, regarding the Florida Senate passing its version of regulations for Amendment 2 (medical marijuana).

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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.

See my post over on Fox’s In the Weeds regarding the Florida House of Representatives passing HB 1397 which is a bill to legislate Amendment 2 (medical marijuana).

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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.

See my post, over on Fox’s “In the Weeds” blog, regarding Florida fraudsters taking advantage of the delay in Florida’s implementation of Amendment 2 (medical marijuana).

Also, if you are interested in cannabis business in Florida and nationally, follow Fox’s In the Weeds.

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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.

Last month, I posted about one Florida House proposal to implement Amendment 2 (which legalized medical marijuana this past November).

Thereafter, several other bills have been put forward and one in the House, HB 1397, has now passed the House Health Quality Subcommittee.  HB 1397, written by House Majority Leader Ray Rodrigues, is quite restrictive and basically the opposite of SB 614 (the topic of my last post).  Specifically it provides the following:

  • A requirement that non-terminal patients must have a doctor at least 90 days before they can get a cannabis recommendation.
  • Bans the smoking of medical marijuana.
  • Also bans edibles like brownies and “vaping.”
  • Slow expansion of the number of licensed growers and dispensaries.  HB 1397 grants licenses to the seven existing growers (previously licensed under Haleigh’s Hope law).  In addition, five applicants denied last year by the Department of Health would obtain licenses after 150,000 patients have registered.  New licenses would be allowed once there are 200,000 patients registered.

46348049 - medical marijuana in jar lying on prescription form near stethoscope. cannabis recipe for personal use. legal drugs concept

Heading back to the Florida Senate, Rob Bradley, has proposed SB 406 which has also made it past a key committee (the Senate Health Policy Commitee).  SB 406 is a more “in the middle” bill and proposes the following:

  • The proposal does not include any language that would restrict doctors’ ability to decide for themselves if patients qualify for marijuana treatment.
  • Nonresidents would be allowed to apply to receive medical marijuana in Florida as long as they are able to get medical marijuana in their home state and qualify in Florida.
  •  The Department of Health would be required to have computer software system to track marijuana from “seed to sale”.
  • Patients would also be allowed to increase their supply from 45 to 90 days or even more than 90 days with a doctor’s approval.
  • The Bill would increase the number of marijuana dispensaries, expanding the number of businesses by five more when the state has 250,000 patients, 350,000 patients, 400,000 patients and then every 100,000 thereafter.
  • At least one of the five dispensaries would have to be a black-owned company.
  • The Bill also proposes a new medical marijuana research group at the Moffitt Cancer Center in Tampa.

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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.

How do you respond when someone tells you they practice voodoo?  How about Santeria or Rastafari?   Do you laugh or scoff in response, do you start singing Sublime??  Here in South Florida, a multicultural and multi-ethnic area, there are a plethora of minor religions being practiced by thousands of people.  As a result, laughing or kidding about someone’s religion, even if seems like a joke to you, is the wrong move in an employment setting.

As an example, news of a recent employment lawsuit filed by a follower of the Yoruba religion, the African ancestor to voodoo and Santeria, who claims discrimination because her employer was making fun of her religion and allegedly restricting her ability to wear her religious garb.  Specifically, Jenessys Gomez, alleges that her bosses and co-workers made fun of her after she started wearing Yoruba-mandated white from head to toe, including a white cover over her shaved head.

42101574 - religious symbols

This latest lawsuit is a good reminder to employers that Title VII covers all kinds of religions and even non-theistic beliefs.  The EEOC guidance on religious observance provides the following:

Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers.  For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.  An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.  Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

When it comes to religious garb or grooming, employers should tread carefully and only limit an employee’s right to wear their religions garb or abide by their religions grooming requirements if, and only if, it creates a real workplace safety, security, or health concerns.

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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.

In November 2016, Florida voters overwhelmingly approved, with more than 70% voting yes, expanded medical marijuana by passing Amendment 2.

Now comes the tough work of implementing Amendment 2.  One bill, SB 614, proposes to throw out the current medical marijuana system in Florida (which was set up in 2015 to grow, process and distribute low-THC cannabis oil) which strictly capped the number of businesses allowed to participate in medical marijuana.

37140040 - florida state flag on cannabis background. drug policy. legalization of marijuana

St. Petersburg Republican Jeff Brandes, the proponent of SB 614, calls the current system “state sanctioned cartel” that limits competition and results in higher prices.  At present, the Florida medical marijuana system is limited to only seven vertical license holders.  A “vertical license” means that the license holder must do it all and grow, process and distribute the product.  And, by maintaining the current system it will obviously severely restrict businesses who want to be involved in what will be big business under Amendment 2.

Senator Brandes’ plan would get rid of the vertical license system and instead create four types of licenses:  one to grow marijuana, one to process marijuana, one to transport marijuana, and one for retail centers.  Each county, and Florida is a large state with 67 counties, could have one retail center per 25,000 residents, or nearly 800 statewide.  But, the bill still permits local governments to outright ban retail dispensaries.

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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.