3. Properly Classifying Workers as either "Employees" or "Independent Contractors:"
There are many benefits to classifying a worker in Florida as an independent contractor rather than an employee. Florida businesses can save money with independent contractors because they do not need to pay employment taxes, or to withhold state, federal or local taxes from paychecks. Also, many of the employment discrimination laws do not apply to independent contractors. These reasons result in many Florida employers improperly classifying workers as independent contractors, when they really should be classified as employees.
When a Florida company classifies employees as independent contractors, those workers can report the employer to the Department of Labor's Wage and Hours Division, which may conduct an investigation into the employer's company . Similarly, workers can find a lawyer who is willing to sue the Florida company for unpaid wages (such as minimum wage or overtime) that the workers would have been entitled to if they were classified as "employees" rather than independent contractors.
Having this liability is an enormous risk for Florida small businesses and if they use an experienced labor and employment lawyer to assist them in putting together an employee handbook, they can also discuss any questions they may have regarding whether to classify the workers as "employees" or "independent contractors. Qualified lawyers can also assist a Florida business draft independent contractor agreements to help the company withstand challenges to the workers' classification. One problem that we have seen is that some lawyers in Florida do not understand the difference between the IRS test and the Department of Labor tests for whether a worker is an employee. This can result in a Florida company thinking it is protected, when it may not be protected against challenges. This is because the IRS test is more narrow than the DOL test. Florida small businesses can experience problems if they do not have an employment lawyer and only rely on a bookeeper or accountant. This is because while the accounting professional may have properly applied the IRS test for independent contractor, these people usually have no idea that there is a separate test for determining whether a worker qualifies as an independent contractor when it comes to the department of labor. This means that even if the IRS agrees that a worker is properly classified as an independent contractor, that same worker may not qualify as an independent contractor under the DOL test. This could leave the employer open to liability from either a DOL investigation or if a lawyer sues. If your Florida company obtains an employee handbook from a competent labor & employment attorney, that lawyer should be able to provide you with an audit as to whether you have properly classified your workers.
7 Reasons Your Small Business Needs Access to an Experienced Employment Lawyer:
Florida business owners have always used experienced labor lawyers to help conduct workplace trainings and investigations. However, in the world of #MeToo there is much more scrutiny given to whether a Florida business properly trained its workers and whether it adequately conducted a proper workplace investigation.
Managers and staff should be regularly trained. How often is regularly? Monthly or quarterly is a good example. If your company has regular meetings, during these meetings is a good time to remind managers of certain expectations. Also, sometimes training should be provided by experts. This is especially true if your workplace has experienced problems, such as allegations of a hostile work environment or workplace discrimination. If the business is receiving complaints, that means that employees perceive something to be wrong or unfair. Even if the complained-of issue is not illegal, it can be a good opportunity to refresh managers and staff as to the expectations in the workplace. Sometimes it demonstrates the seriousness of the matter if the business brings in an outside third party, such as an expert in the field, like an employment lawyer, to perform the training.
In Florida, workplace investigations are something that should not be taken lightly. If it is important to investigate a matter, then it is important that a person trained in proper investigations is in charge of the investigation. If your company does not have a person with a background in human resources, who hold certifications, and attends monthly HR trainings, then you may not be equipped to properly conduct an investigation and you may need to bring in someone with the experience. Often employment lawyers are brought in to conduct such workplace investigations. Using an experienced labor & employment lawyer to conduct (or at least guide) an investigation can bring to the table the ability to make sure that the investigation is conducted in a prompt and thorough manner which includes hallmarks of fairness, such as interviewing witnesses and reviewing relevant documents. If the investigation results in a recommendation to terminate an employee, that may trigger an EEOC charge or a lawsuit from the terminated employee. Obviously, the investigation will be a target of the challenge to the termination, so you want to make sure that the investigation was done properly.
4. Properly Classifying Workers as Exempt or Non-Exempt:
The federal Fair Labor Standards Act (FLSA) applies to many small businesses in Florida. The FLSA requires covered small businesses in Florida to pay nearly all workers minimum wage and overtime if that worker works more than 40 hours in a workweek. If you are not sure whether this law applies to your small business, and you have employees, you should immediately contact an experienced FLSA attorney to assist you in this matter.
Many small business owners in Florida have heard that they do not need to comply with the FLSA's overtime and minimum wage requirements if the worker is paid a salary. That is only partly true.
The most popular exceptions to the FLSA's requirements are called white collar exemptions. This is because certain types of white collar employees are "exempt" from the FLSA. In order for an employee to be "exempt" from the FLSA's requirements under the white collar exceptions, each such worker must meet a 3-part test. The worker must: 1) be paid on a salary basis; 2) the salary must meet a minimum threshold; and 3) the employee must meet the "duties" test for the type of white collar exemption they fit into. As you can see, just paying a worker a salary is only one of the three requirements for making them "exempt" from the FLSA. You may also notice that there is no mention at all about having the employee sign an "independent contractor agreement." This means that it is inadequate to hand a new worker a contract to sign that declares that they are an independent contractor. The Department of Labor and an employee's lawyer will not magically go away just because the worker signed a certain document, without evidence of the other requirements. That being said, an experienced FLSA lawyer can assist your small business in Florida by auditing each position to determine whether the worker is likely to meet the test, and if so, drafting an independent contractor agreement that includes language that demonstrates the duties that the worker performs which also show that the worker meets the DOL duties test for the FLSA exemption. A highly skilled employment lawyer may also be able to include language in your independent contractor agreement to maximize the likelihood that the worker will be found to be an "independent contractor" under both the IRS test and also the DOL test!
The proper classification of Florida workers as "exempt" or "non-exempt" will impact language that is included in an employee handbook. This is because you may not allow non-exempt employees to check work email or otherwise perform work while they are "off the clock." An example is when a worker answers work-related text messages or emails at home or on the weekend, and they later sue, claiming that they should have been paid for that work. Your Florida company can address this in the employee handbook, to minimize such liability.
7. Properly Handling Requests for Accommodation:
Various federal and state laws may require a Florida employer to consider whether an employee is entitled to a reasonable accommodation. As an example, if an employer has a grooming policy and an applicant or employee requests to not comply with that policy because of her religion. This situation could require a covered business in Florida to analyze the situation and determine whether the individual may be entitled to an accommodation on the basis of religion. Another example that Florida companies may encounter is if an employee claims that he is disabled and needs special treatment because of his disability. This type of situation may require the employer to first analyze whether the employee is disabled, and if so, the employer may have to engage in an interactive process with the employee regarding the requested accommodation. This is a tricky area for employers and they should seek guidance of an experienced discrimination lawyer top assist them.
2. Employee Handbooks in Florida:
A small business owner in Florida may have heard that there is no law requiring Florida small businesses to have an employee handbook. While this is true, it often is wise to use an employee handbook to explain various things to your employees so that they do not get confused and to protect your company against lawsuits.
Also, many Florida companies who have at least two employees are covered under the National Labor Relations Act (NLRA) and have no idea that they are violating it! As an example, if your Florida business is covered by the NLRA (which it probably is) then you can have illegal language in your current handbook if it was not reviewed by a competent Labor & Employment attorney. The most typical example of an illegal policy is if your Florida business prohibits employees from discussing wages with others, such as co-workers.
Also, most Florida companies with a gross annual revenue over $500,000 and which are engaged in interstate commerce are subject to the Fair Labor Standards Act (FLSA). Many small businesses in Florida learn about this law when they get sued for violating it! As your Florida business grows, the number of laws that apply to it also grows. It is difficult to keep track of what employment laws apply, but an experienced labor & employment lawyer can help. A couple examples are anti-discrimination laws and medical leave policies. To the extent your Florida business is subject to these laws and policies, it is important to consider including these into an Employee Handbook.
Another reason your Florida company may want to use an Employee Handbook is to clearly explain to employees which benefits they have and how they are used. In a Benefits section a Florida employer may explain the type of benefits for which employees may be eligible during employment. You can explain which benefits your business offers, such as paid time off (PTO), sick leave/medical leave, jury duty leave, parental leave, family and medical leave, dental insurance, vision insurance, life insurance, workers’ compensation, retirement plans, 401k, and short term disability insurance. The company can explain whether all employees are eligible or only full time employees are eligible for benefits.
An employee handbook should clearly establish the rules governing conduct within the workplace itself. Some of these rules may be required under federal and state laws – such as workplace safety policies (as well as anti-discrimination policies, discussed above). The policies may also provide for information about what to do in emergency situations and reporting accidents.
A Handbook may also spell out the conduct expected of the employee in the workplace. This may include usage of computer systems and email, substance abuse policies, confidentiality of trade secrets and business information, social media usage, progressive discipline, attendance policies, how employees handle workplace disputes or complaints (conflict resolution and a complaint reporting procedure), and a dress code.
An employee handbook is not something that should sit on the shelf and never used. It should be a roadmap for your employees and managers. Your managers across the entire organization should handle issues consistently because they should all be following the roadmap explained in the handbook. Essentially, an employee handbook should provide a framework for managers to follow to make sure employees are being treated fairly in various departments.
You may also want to include other basic information such as work from home policies, performance reviews, and a payroll schedule. It is always important to have policies regarding how employees (or you) accurately track hours worked (timekeeping), among other metrics, especially because this is typically required by federal law. Consider policies on meal and rest breaks and make sure the policies you adopt are consistent with state and federal law.
Another reason to use an employee handbook is to lay out the rules governing conduct within the workplace. Federal and State laws may mandate some of these rules, such as anti-discrimination policies and workplace safety policies. Handbooks also explain to employees what is expected in certain situations, such as use of computer systems, internet, social media and email, Drug-free workplace policies, confidentiality of trade secrets and business information, discipline, attendance policies, grooming and dress code, and how employees can make complaints such as hostile work environment or sexual harassment.
An employee handbooks is also a good place to address your position on employees working from home policies, which helps the employer accurately track hours worked (timekeeping), and other wage and hour issues like meal and rest breaks.
In Florida, winning an unemployment claim based on misconduct often requires proof that the terminated employee was on notice of a specific rule and had been warned that violating the rule would lead to disciplinary action up to and including immediate termination.
One of the biggest mistakes Florida employers make when it comes to handbooks is copying another employer's handbook or one found online. This is a recipe for disaster because many Florida small businesses have no obligation to do certain things, but as soon as an employer puts language in their employee handbook about it, the employer may find itself liable for that issue. As example is when a small business in Florida is not required to comply with the Family and Medical Leave Act (FMLA) because it has fewer than 50 employees, but the employer "borrowed" an employee handbook that was for a larger employer that was covered by the FMLA. In this situation, the smaller business may end up getting sued for violating the FMLA when it otherwise never would have been.
If you are not sure about your employee handbook, or just want to have one created for your business from scratch, this is something that can actually be accomplished relatively inexpensively if you use an experienced labor & employment lawyer.
If you are searching for Employment Law for Small Businesses, or Treasure Coast Small Business Employment Lawyer, here is a great free resource:
Top 7 Reasons Why Every Florida Small Business Needs Access to an Employment lawyer:
1. Non-Compete Agreements in Florida:
In Florida, the general policy is that restraints upon trade, including covenants not to compete, are generally unenforceable. However, restrictions are permitted to the extent that they meet the standard set forth in the Florida Statutes. The enforcement of contracts (including non-compete agreements) that restrict or prohibit competition is not prohibited so long as they are reasonable in time, area, and line of business. Also, in order for a non-competition agreement to be valid in Florida, it must be in writing and signed. This is important because a court shall not enforce any non-compete agreement that is not in writing and signed by the person against whom enforcement is sought. In Florida, it is the person seeking enforcement of a restrictive covenant who has the requirement to plead and prove:
a. the existence of one or more “legitimate business interests”; and
b. that the contractually specified restraint is “reasonably necessary” to protect such interests.
This means that if your company has an employee sign a non-compete agreement in Florida, and if that employee violates it, it is the company’s obligation to prove that there is at least one legitimate business interest that is being protected by the non-compete and also that the restrictions imposed upon the employee are reasonably necessary to protect those interests.
There are multiple things that can be legitimate business interests, and an experienced labor & employment lawyer can assist your business to make sure that these are identified when creating the non-compete agreement.
How does a small business choose the right labor & employment lawyer on the Treasure Coast? Word of mouth is a great place to start. Many of our clients refer other business owners to our employment law firm to help them with matters related to recruiting, hiring, disciplining and firing employees. Sometimes small businesses are confused about whether to classify a worker as an employee or an independent contractor and they need an experienced employment lawyer to help them with that. There can be serious consequences to a Florida business if it classifies workers improperly. It is helpful to have a labor & employment lawyer assist and provide counsel about such matters.
Many small businesses like to work with a local lawyer and that is often why they come to our firm. David Miklas is unaware of any other attorney on the Treasure Coast who exclusively practices labor & employment law, representing only employers, with as much experience.
Over the years David Miklas widened his practice to represent small businesses all over Florida and can practice in all Florida administrative locations, all Florida state courts and has been admitted in all of Florida's Federal courts. Although our firm represents clients from Destin, St. Augustine, Orlando, Tampa, West Palm Beach, Miami, etc. our roots are on the Treasure Coast and we concentrate most of our time on small businesses located in Vero Beach, Fort Pierce, Port St. Lucie, Jensen Beach, Stuart, Palm City, and Okeechobee.
When a small business googles employment lawyer or discrimination lawyer or retaliation attorney, they are often presented with various options. Most of the options along the Treasure Coast either represent employees or dabble in this area of the law. You need an employment lawyer with years of experience representing Florida companies.
Some small businesses contact us after they have received a complaint of sexual harassment and need help conducting an investigation. Others contact our law firm after they have received a letter from a lawyer demanding a bunch of money to settle a case or else they will sue the company. Sometimes you just need help in disciplining or terminating an employee or properly addressing complicated FMLA or ADA requests. We can help your business with any of these things.
You can contact our labor and employment law firm by email or by calling us at 1-772-465-5111.
5. Assistance is Hiring, Disciplining and Firing Employees in Florida:
Because small businesses do not have many employees, they may have certain people who wear several hats, such as bookkeeper, secretary and human resources. In Florida, this often results in the person who handles the hiring not being trained in the various laws that can be violated by improper hiring. As example is that if the person tasked with hiring decides to run a Facebook advertisement and chooses to limit that ad to only certain age groups, that may result in a charge of discrimination from the EEOC or a lawsuit alleging age discrimination in hiring. Also, there are certain types of questions that are illegal to ask applicants. This is an area where an experienced employment lawyer can help you avoid claims of discrimination in hiring.
Also, when a small business disciplines an employee, sometimes they may mistakenly believe that they must give the employee more rights or chances than they really have to. Some business owners come from "up north" where employees have many more rights than they have down here in Florida. Also, many small business owners may have been exposed to disciplining employees in a system where there was a union. If your small business in Florida does not have a union, you do not have to follow many of the requirements that may have been in place at a unionized workplace.
Firing an employee in Florida is the most dangerous situation for an EEOC charge or a lawsuit. This is because when an employee gets fired, this is the time that they are most likely to hunt down a lawyer to sue or go complain to a federal agency, such as the Department of Labor, OSHA, etc. Therefore, it is always wise to run all potential terminations by an experienced labor & employment lawyer before you fire the employee. This can be as simple as a quick phone call to make sure that your Florida business is on solid ground with the termination. Of course, the lawyer should ask multiple questions and may need to review documents such as the personnel file, including performance evaluations and past discipline, in order to properly analyze whether the termination is likely to withstand legal challenges. Florida is an employment at-will state, which means that you can fire an employee for any reason at all, so long as it is not illegal (which usually means discriminatory or retaliatory). There are certain situations where an employer actually can modify the employment-at-will nature of the relationship, and give the employee more right than they otherwise would have been entitled to. An example of this is when the employer chooses to give the employee an employment agreement which includes language that restricts the employer to only terminate the employee "for cause" as opposed to any reason.
Checking with a labor and employment lawyer prior to firing an employee is always much less expensive than defending/responding to a lawyer's demand letter, or lawsuit, or EEOC charge of discrimination, or Department of Labor investigation, or OSHA investigation, or NLRB investigation, etc.
Most small businesses in Florida hold off on hiring a labor and employment attorney until they have been served by a Sheriff's Deputy with a discrimination lawsuit. The biggest problem with this is that many discrimination and retaliation lawsuits are filed in Florida's federal courts (such as the U.S. District Court for the Middle or Southern District of Florida). There is a very strict deadline in federal court for a Florida company to respond to a lawsuit. If the company has not already researched experienced labor and employment lawyers, then they are facing a deadline and may not even receive a return phone call before the deadline passes. Also, many lawyers in Florida only practice in state court and they are not even admitted to practice in federal court. This is why it is important to look into which experienced discrimination lawyer you want to represent you, so if you are served with a lawsuit, your lawyer can hit the ground running to assist in your defense.