With the ringing in of 2018 comes an opportunity to do away with the bad habits and start good ones. Here are a few pointers to help keep your business in compliance with labor and employment laws all year long.
Pay the New Minimum Wage in Florida
Effective January 1, 2018, Florida’s minimum wage for non-tipped employees increases from $8.10 to $8.25 per hour, and for tipped employees, increases from $5.08 to $5.23 per hour. Ensure that your current payroll practices have accounted for these increases, and that your business has also posted somewhere conspicuous and accessible in the workplace a copy of the 2018 Florida Minimum Wage Poster. A free download of the poster in the English, Spanish, and Creole languages is available from the Florida Department of Economic Opportunity at www.floridajobs.org.
Revisit that Old and Dusty Employer Handbook
With the #MeToo movement and the recent wave of sexual harassment claims sweeping across the county, employers should take a close look at their current anti-harassment policies and procedures to ensure that they are adequate. A common policy drafting mistake is to provide for only one avenue of reporting – that all complaints must be reported to a direct supervisor. But, what if the employee’s direct supervisor is the harasser? Make sure that your employees have multiple outlets for reporting, and that those to whom claims of harassment may be reported are prepared to listen and take appropriate action. Employers should also strongly consider providing appropriate harassment prevention training even if the training will just be a refresher.
The National Labor Relations Board (NLRB) recently revisited the applicable standard in determining whether an employer’s policies unlawfully limit employees’ rights to engage in protected concerted activity. Previously, an employer’s policy was subject to violating the National Labor Relations Act if it could be “reasonably construed” to limit an employee’s right to engage in protected concerted activity such as, for example, discussing the terms and conditions of employment with other employees. Now, the analysis is whether an employer has a “legitimate justification” for the policy in question. While this change is considered more employer-friendly, businesses should still revisit their current policies regulating workplace conduct standards and determine what legitimate justifications exist for those policies.
Consider whether your company has become subject to the requirements of the Family and Medical Leave Act of 1993 (FMLA). Even a company with less than 50 employees may nonetheless be subject to the requirements of the FMLA if it had hired at least 50 employees for 20 or more calendar work weeks in the prior or current calendar year. Any employer subject to the FMLA must make certain disclosures to employees of their rights under the FMLA, in addition to providing and administering leave in accordance with the Act.
Medical marijuana continues to be a rapidly-evolving area of the law, with a broad diversity among states regarding its use. While Florida employers are not currently required to permit on-duty medical marijuana use, or permit their employees to report to work under its influence, Florida employers should consider whether their current policies reflect their attitude towards its use. For example, if an employee tests positive on a drug screen, will the employer permit the employee to furnish a registration card/prescription to explain the result, so long as there are assurances that the employee will not work in an impaired state? Or, alternatively, if the employer adopts a zero-tolerance drug-free workplace prohibiting “illegal drugs,” does the policy reflect that “illegal drugs” are any such drugs currently deemed illegal under either state or federal law?
Revisit Whether Your Workers are Appropriately Classified as Independent Contractors or Employees
Businesses should consider revisiting whether its workers are appropriately classified as either employees or independent contractors. Misclassification can lead to hefty liability such as civil and monetary penalties, reimbursement of back wages (including overtime pay and work-related expenses), and tax obligations. Don’t make the mistake of relying solely on a Form 1099 and a position title in making the determination. The analysis required for the determination is much broader. Consider factors such as whether the worker is integral to the company’s business, the degree of control maintained over the worker, and the term of the worker’s engagement. Generally, the more integral the worker is to the company’s business, the more control the company maintains over the employee, and the longer the engagement, the more likely it is the worker should be classified as an employee.