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Thursday, January 29, 2015

NEW YEAR, NEW RULES: WHAT YOUR COMPANY NEEDS TO KNOW FOR 2015 - PART II

PREGNANCY DISCRIMINATION CLAIMS NOW VIABLE IN FLORIDA

In April 2014, the Florida Supreme Court ruled that the Florida Civil Rights Act (FCRA) covers pregnancy discrimination, the Court taking the broad view that pregnancy discrimination extends to the laws regarding protection of an individual based on gender.  In this case, Delva v. The Continental Group, the Plaintiff worked as a front desk manager at a property management firm. She filed suit against the Defendant employer alleging that because of her pregnancy, the employer heightened the scrutiny of her work, refused to allow her to change shifts and work extra shifts (despite company policy allowing such things), refused to allow her to cover shifts, and refused to schedule her for work after she returned from maternity leave. While the underlying merits of the discrimination claims have since been remanded back to the circuit court, the issue before  the Florida Supreme Court was whether Plaintiff could bring a claim for pregnancy discrimination under the FCRA. The decision was a resounding “yes” with the Court ruling 6-1 in favor.

In its liberal construction of the FCRA, the Court explained that “[t]o conclude that the FCRA does not protect women from discrimination based on pregnancy — a primary characteristic of the female sex — would undermine the very protection provided in the FCRA to prevent an employer from discriminating against women because of their sex.” Delva v. The Continental Group, 137 So. 3d 371, 375 (Fla. 2014).

Recently, the Equal Employment Opportunity Commission (EEOC) issued its first comprehensive update on the subject of pregnancy discrimination in more than 30 years by issuing new enforcement guidelines on the treatment of pregnant employees under the federal Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).  Importantly, the EEOC guidelines highlight who is covered by the PDA, which medical conditions related to pregnancy or childbirth are covered by the PDA, and how employers must address issues such as employee  leave, light duty requirements, and equal parental leave. For example, employers may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes they are acting in the employee’s best interest.  Additionally, the PDA covers current, past, and potential pregnancy – an employer may not discriminate based on an employee’s intention or potential to become pregnant (even if the job presents risks to the pregnant employee or her fetus).

What does this mean for employers? Employers should continue to ensure that their policies and procedures include prohibition of gender discrimination, including pregnancy, and that its managers and supervisors are knowledgeable in such policies and procedures. Employers should keep open lines of communication with its employees and allow the employee to determine when they want to take their leave as they are in the best position to determine their ability to work. Documenting the employee’s decisions and any discussions employer has with employee, such as when they will take their leave, are important in protecting the employer should a pregnancy discrimination claim arise.

For more information on how to handle or prevent potential pregnancy discrimination issues, contact me at Christina@sotolawgroup.com or (954) 567-1776.

Sources: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm; http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm; http://www.jacksonlewis.com/resources.php?NewsID=4831; Delva v. The Continental Group, 137 So. 3d 371 (Fla. 2014)

WAGE AND HOUR CLAIMS #1 ISSUE FOR EMPLOYERS IN 2015

The number of wage and hour lawsuits will continue to grow in 2015, becoming a source of major financial exposure for employers and is considered the number one “headache” in corporate workplace issues.[1]  A new litigation trend report[2] expects this number will only rise throughout 2015, with increased litigation regarding off-the-clock claims brought by non-exempt employees; independent contractor classification; joint employer liability; unpaid overtime; and missed or late meal and rest breaks. The report also anticipates increased activity and continued aggressive litigation by federal agencies.

Employers are wisely investing in compliance training and procedures. Most importantly, employers need to know how to pay employees and to ensure payroll methods are compliant with state and federal laws. Generally, employers should familiarize themselves with both federal and state wage and hour laws, and recognize that where state law is provides broader protections to employees, that state law will control. Employers are also advised to start conducting self-audits and continue enhancing workplace compliance programs.

Employers can also minimize exposure by carefully reviewing its basis for categorizing any employees as “exempt” from the minimum wage and overtime requirements of state or federal law. Misclassification is often the foundation for wage and hour claims. Employers are also encouraged to ensure that non-exempt employees do not work “off-the-clock.” Compensable time includes any time that an employer permits an employee to work, including such time spent by employee during a meal break or after regular business hours conducting work for the employer. Such time must be paid by the employer, and employer must keep accurate time records for all non-exempt employees.

Inaccurate time records for non-exempt employees seems to be the number one problem among employers in the construction industry. Often times the employer relies on the project superintendent or other office employee to keep accurate time records for non-exempt employees on site, allowing handwritten time cards or other records that the employee has not reviewed. It is advised that employers create timesheets for each non-exempt employee, requiring the employee’s signature each week verifying that the hours are accurate and correct. Keeping organized, accurate records will not only help the employer stay compliant but will tremendously assist an employer in defeating or resolving a wage and hour claim in its infancy.

For more information on compliance procedures and other wage and hour issues, contact me at Christina@sotolawgroup.com or (954) 567-1776.

Sources: Corporate Counsel; “Wage and Hour Suits 'No. 1 Headache' for Employers in 2015”; http://www.corpcounsel.com/id=1202714132470/Wage-and-Hour-Suits-No-1-Headache-for-Employers-in-2015#ixzz3PtZXyNyW; 11th Annual Workplace Class Action Litigation Report, Seyfarth Shaw LLP, 2015 Edition; http://www.pepperlaw.com/publications_update.aspx?ArticleKey=3115


Christina L. Feyen, Esq.
The Soto Law Group, P.A.
2400 East Commercial Blvd., Suite 400
Fort Lauderdale, FL  33308
www.sotolawgroup.com
TEL:  954-567-1776
FAX:  954-567-1778



NEW YEAR, NEW RULES: WHAT YOUR COMPANY NEEDS TO KNOW FOR 2015 - PART I

FLORIDA MINIMUM WAGE INCREASE EFFECTIVE JANUARY 1, 2015

ATTENTION ALL EMPLOYERS:  Effective January 1, 2015, Florida’s minimum wage is now $8.05 per hour, up from $7.93 (with a minimum wage of at least $5.03 per hour for tipped employees, in addition to tips). An employer that is found liable for intentionally violating Florida’s minimum wage requirements is subject to a fine of $1,000.00 per violation, payable to the state.

If you are notified by an employee that they have not been receiving the lawful minimum wage, act quickly! An employer only has 15 calendar days to resolve any claims for unpaid wages before an employee may bring a civil action in a court of law to recover back wages, damages, and attorney’s fees. Additionally, the Attorney General or other official designated by the Legislature may bring a civil action to enforce the minimum wage.

The Florida Department of Economic Opportunity adjusts the state minimum wage annually on September 30th, adjusting the minimum wage by the rate of inflation for the 12 months prior to September 1. 

Sources: Florida Minimum Wage Act, Fla. Stat. §448.110
http://www.frla.org/frla-news/item/1477-2015-florida-minimum-wage-announced

OBAMACARE EMPLOYER MANDATE NOW IN EFFECT

Companies with 100 or more full-time workers must now offer affordable health care to at least 70% of its staff (and their dependents to age 26) pursuant to the Affordable Care Act (popularly known as “Obamacare”). A full-time employee is one who works at least 30 hours a week, or whose hours equal at least 130 a month, for more than 120 days in a year. This Employer Mandate went into effect January 1, 2015 and carries a hefty fine for those qualifying employers who fail to comply. The Employer Mandate for employers with 50 to 99 employees goes into effect in 2016 but for the year 2015, these employers will need to certify that they are not reducing the size of their workforce to stay below 100. Companies with less than 50 people on staff are not subject to the Employer Mandate.

Employers will be fined if they do not offer “affordable coverage” and even just one of their employees receives subsidized insurance on an individual exchange. For 2015, the fine is $174 a month multiplied by the number of full-time employees (minus 80 workers).  This penalty increases if the company offers insurance but said insurance is not considered “affordable” or “comprehensive.” In such instance, the employer will be required to pay $261 a month for each employee that receives subsidized coverage on an individual exchange.

What is “affordable” and “comprehensive” coverage? Employers’ insurance offerings must pass two tests:

1) To be “affordable,” the plan’s premiums cannot cost an employee more than 9.56% of their income. This applies only to employee-only coverage since the health reform law does not consider the affordability of family coverage.

2) To be “comprehensive,” the policy must pay for at least 60% of the staff’s medical expenses and cover an array of essential health benefits, such as prescriptions and maternity care.

To avoid tax penalties, affected employers should become familiar with IRS reporting requirements and document compliance from day one. If you are a large company (100+ employees) and you have not tailored your benefits to comply with the Employer Mandate, act immediately to bring your coverage into compliance. Starting in 2016, all affected employers will have to offer coverage to 95% of employees.

Sources: http://money.cnn.com/2015/01/02/news/economy/obamacare-employers-health-insurance/
http://www.cigna.com/assets/docs/about-cigna/informed-on-reform/employer-mandate-fact-sheet.pdf


Christina L. Feyen, Esq.
The Soto Law Group, P.A.
2400 East Commercial Blvd., Suite 400
Fort Lauderdale, FL  33308
www.sotolawgroup.com
TEL:  954-567-1776
FAX:  954-567-1778



Wednesday, January 28, 2015

New Construction Project? First Things First: The Preliminary Notice & Ensuring Your Rights to Payment

What are preliminary notices?
In Florida, preliminary notices come in the form of a Notice to Owner and/or Contractor. The distinction between a notice that goes to an owner as opposed to a contractor hinges on whether the project is privately or publically owned. Most preliminary notice companies err on the side of caution and issue a combined Notice to Owner/Contractor form which complies with both private (Fla. Stat. 713) and public (Miller Act, Fla. Stat. 255) project laws in Florida.

What is the purpose of a preliminary notice?
For the supplier or subcontractor, the most important role of the preliminary notice is to secure your potential lien or bond claim on a construction project. Additionally, the notice alerts the owner of a project to your participation/scope of work on a construction project and your possible future claim should you not receive payment for your labor, services and/or materials.

What is the procedure in Florida for a Preliminary Notice?
Generally, the preliminary notice (notice to owner/contractor) must be served within 45 days of beginning to furnish labor, materials or services to a project. The failure to serve the notice or to serve it untimely is a complete defense to a lien or bond claim. There is a special exception for specially fabricated materials which requires the preliminary notice to be served within 45 days of beginning to manufacture the specially fabricated materials.

Florida law requires that service of the notice be made by actual delivery (in person), registered mail or overnight/global guaranteed mail. Typically the notice is considered effective upon receipt. There is an exception however. If a claimant mails the notice within 40 days of first furnishing and maintains a registered or certified mail log then the notice is effective upon mailing.

Who Should Receive Copies of the Notice?
The Owner, General Contractor, your Subcontractor/Customer, Surety, and the Lender. The mailing address and legal discretion of property for all these parties can typically be found in the Notice of Commencement.   

Preparing the Notice
The information and form required to be in a preliminary notice is detailed in Fla. Stat. § 713.06(2)(a) complying with this sector covers F13/295. That section provides that a notice must include: the lienor’s name and address, a description sufficient for identification of the property and the nature of the labor, services or materials to be furnished.

Making sure you issue a proper and timely Notice to Owner/Contractor is vital to preserving your rights to payment, either under a lien (Fla. Stat. §713.06) or a payment bond (Fla. Stat. §713.23/§255.05). Consulting with experienced construction legal counsel well before furnishing materials to a project can go a very long way in determining what rights you actually have and how to preserve them.

 


BY: JOSE A. RODRIGUEZ, ESQ.                            
The Soto Law Group, P.A.
2400 E. Commercial Blvd., Suite 400
Fort Lauderdale, FL  33308
TEL:  954-567-1776

FAX:  954-567-1778

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. Additionally, the information above is not intended to be legal advice. Please consult with an experienced lawyer if you have a specific issue or dispute.

Conditional Payment Bonds: A Trap for the Unwary

On a typical private payment bond (Fla. Stat. §713.23) project, lienor’s look to a bond issued and backed by a surety should their contractor or customer fail to pay for the lienor’s work or materials. Claims against a §713.23 payment bond are perfected by serving a proper and timely preliminary notice to the owner, contractor and surety (as disclosed in the notice of commencement) and also serving a Notice of Non Payment within 90 days of last furnishing materials, services or labor to the project. These type of claims do not require the filing of a lien but rather the serving of a Notice of Non Payment.

However, there is another type of bond claim in Florida which does require the filing of a lien in addition to the serving of a Notice of Non Payment to perfect your rights to payment. These bonds are called conditional payment bonds and are governed by Fla. Stat. §713.245. These conditional payment bonds are conditioned on the owner having paid the contractor for those amounts being claimed by the potential lienor. If that event of payment occurs, then the surety’s liability to the lienor is triggered. If that event of payment between the owner and the contractor has not occurred, then the lienor must look to the owner’s property for recovery (i.e. record a Claim if Lien).


So how do you know if you have a typical §713.23 payment bond or a §713.245 conditional payment bond on a project? The first clue will be in the Notice of Commencement. Florida Statute §713.245 requires that the notice of commencement identify the payment bond as a conditional bond, attaching a copy of it to the recorded Notice of Commencement. Additionally, the copy of the bond attached to the notice should carry the following specific language in large font:

THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, SERVICES OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN ON THIS PROJECT.

The type of security available on a project (lien, bond or conditional bond) is not always clear and can change as a project evolves. Making sure you or a reputable and diligent notice to owner company has served a timely and proper preliminary notice is the first step. Once you have completed your work or payment issues arise, your lien or bond rights must be perfected. It is always advisable to contact legal counsel familiar with the intricacies of Florida lien law to help you determine what further steps should be followed. So what is the bottom line? Always timely serve your Notice of Non Payment and record your Lien- your attorney can then follow up with the appropriate next step. We at the Soto Law Group, P.A., welcome any questions you might have regarding your Florida lien and bond rights.


      BY: JOSE A. RODRIGUEZ, ESQ.                        
      The Soto Law Group, P.A.
      2400 E. Commercial Blvd., Suite 400
      Fort Lauderdale, FL  33308
      jose@sotolawgroup.com
      TEL:  954-567-1776
      FAX:  954-567-1778 


The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. Additionally, the information above is not intended to be legal advice. Please consult with an experienced lawyer if you have a specific issue or dispute.