Top Labor Law Blogs

  1. BEFORE YOU SUE: 10 questions every employee should ask – By Robin Shea

Florida is an “at will” employment state, meaning that both the employer and employee may terminate employment at any time, with some exceptions, such as discrimination or retaliation. If you feel your employer has wrongfully harassed, terminated or owes you unpaid wages, there are several questions you may ask yourself before filing a lawsuit.

  1. New Exemption Rules May Be Delayed To Late 2016 – Posted by Bill Pokorny

New rules proposed by the Department of Labor for employee exemption under the FLSA will take effect sometime during 2016.  With a huge influx of comments regarding the new rule proposal, the DoL is likely to delay the rule changes to late in the upcoming year.  Employers are still clamoring to impose new policies to ensure compliance with the new rules.  Likely changes will include a raise in the minimum salary for exempt employees, which will be approximately $50,440 per year.  New classifications of employees, and/or raises in salary (to maintain exempt status) are expected by employers in the coming months prior to the rules coming into effect.

  1. Employer’s Policy Was Illegal But Enforcing it Was Not – Huh? – By Dennis J. Merley

A Texas hospital loses and then wins in federal court against charges of violations under the Americans with Disabilities Act.  A nurse, employed at the hospital took leave under the Family Medical Leave Act for two months due to personal medical issues.  Shortly after her return, she informed her employer that she would need to go on leave again, for a amount of time that would exceed both the FMLA coverage and violate hospital policy.  The hospital terminated the nurse, claiming that they could not accommodate such a long leave of absence under any circumstance.

The nurse filed charges with the Employment Equal Opportunity Commission (EEOC), and received a determination that cited the hospital policy created an artificial mechanism that violated the ADA.  The nurse then brought her claim to federal court with her EEOC “Right to Sue” notice.

The federal court ruled that the hospital’s policy did violate the ADA and was illegal.  However, they upheld the hospital’s termination of the nurse was legal because her request did not include a return time and the expectation of an indefinite leave of absence was considered excessive and not protected by federal law.  Basically, it was illegal for the employer to have a policy that did not provide flexibility to accommodate disabled employees, but the employee cannot expect an indefinite leave of absence, which would place an unreasonable burden on the employer.

  1. Study shows older female job-seekers have harder time getting hired – Sivertson and Barrette, P.A.

A research conducted by the National Bureau of Economic Research has found a substantial prejudice against older female applicants.  Studies determined that younger applicants received call backs from potential employers at a much higher rate than older applicants and even higher than older female applicants.  This is contrary to an older study which suggested that older male job seekers received the greatest level of hiring prejudice.  Discrimination based on gender or age (older than 40) is illegal under federal law and may be subject to civil action.

  1. Court Rules Light Duty Work Not Sheltered Employment in Florida Workers’ Compensation Case – by Friedman, Rodman & Frank, P.A.

A housekeeper injured her shoulder at work.  He physician ordered her back to work with a “light duty” restriction.  Her employer offered her a temporary position in regards to her doctor’s recommendations, which the housekeeper refused, stating that she would prefer to return to work after completion of her physical therapy in approximately two months.  The employer terminated her in response, citing that her refusal to return to work or call in as grounds for her termination.

Upon the housekeeper’s completion of physical therapy, she filed for partial disability benefits, but was denied her workman’s compensation claim by her employer due to her refusing light duty.  At a JCC hearing the woman cited that the light duty offer was “sheltered employment” under Florida Statute 440.15(6).

The judge denied her appeal, stating that the light duty job offer was reasonable and suitable under in her condition.  She was ultimately denied her benefits claim due to her unjustified refusal for suitable work.

6. – The gainesville lawyers of Massey & Duffy publish this legal blog.

FLSA Overtime Notice Permitted

The law firm of Massey & Duffy has been permitted to send the following notice of a FLSA collective action to numerous employees of a local company. The text of the notice is as follows:


TO: All persons who work or have worked for SAL-MARK SERVICES, LLC, doing business as HOME BY CHOICE, who held job positions titled or classified as Caregiver and/or Companion Sitter at any time during the three years preceding the date of this Notice.

DATE: June 23, 2014

RE: Fair Labor Standards Act (“FLSA”) Lawsuit Filed Against SAL-MARK SERVICES, LLC, doing
business as HOME BY CHOICE

I.                                      INTRODUCTION

The purpose of this Notice is to inform you of a collective action lawsuit against SAL-MARK SERVICES, LLC, doing business as HOME BY CHOICE (referred to as “Defendant”), in which you are potentially “similarly situated” to the named Plaintiff, to advise you of how your rights may be affected by this suit, and to instruct you on the procedure for participating in this suit if you so desire.
As described more fully below, if you are eligible and wish to participate in this collective action, you must timely complete and submit the “Consent to Join” form attached to this Notice.
Plaintiff, Annette Strozier, (“named Plaintiff” or “Plaintiff”) has filed this action against Defendant on behalf of herself and all other past and present employees, who at any time during the preceding three years have held job positions titled or classified as Caregivers and/or Companion Sitters. Plaintiff alleges that the Defendant failed to pay them and past and present employees in the Caregivers and/or Companion Sitters positions overtime pay to which they were entitled under the Fair Labor Standards Act. Plaintiff alleges that these Caregivers and/or Companion Sitters were provided with a “Wage Scale” that provided “bonuses”, but that these bonuses were not included in the employee’s overtime wages earned for work performed during the last three years.
Plaintiffs also allege that they, and all employees similarly situated, are entitled to liquidated damages in an amount equal to the amount of unpaid overtime wages, and that they are entitled to prejudgment interest, attorneys’ fees, and costs associated with bringing this lawsuit.
The Defendant denies any and all liability, including Plaintiffs’ allegations that it failed to correctly compensate employees or that it is liable to Plaintiffs for any claimed violation of the FLSA.
This lawsuit is in the very early stages of litigation. The Court has conditionally certified this case as a collective action and ordered this Notice be sent to you.
The U.S. District Court for the Northern District of Florida, Gainesville Division, has ordered this FLSA Notice to be distributed to all past, present and future employees of Defendant who have been employed as Caregivers and/or Companion Sitters at any time during the three years preceding the date of this Notice (“Covered Employees”).
If you were employed by the Defendant as a Caregivers and/or Companion Sitters for any period during the three years prior to the date of this Notice and you believe that the Defendant has failed to pay you for all overtime compensation to which you are entitled, you have the right to join the pending lawsuit against.
If you want to participate in the lawsuit, you must take affirmative steps to indicate your intent to join the action. You must complete, sign and fax or mail a copy of your Consent to Join form, which is attached to this Notice, to Michael Massey of Massey & Duffy, 855 E. Univ. Ave., Gainesville FL 32601 (fax: 352-328-1814). If mailed, your signed Consent to Join form must be postmarked by no later than ___August 25, 2014_________. If faxed, your signed Consent to Join form must be successfully faxed no later than ___August 29, 2014_____.
If you fail to return the “Consent to Join” form to Massey and Duffy by __August 29, 2014_________, you will not be permitted to participate in this lawsuit.
Filing a “Consent to Join” form does not guarantee that you will be able to participate in the trial of this lawsuit as this may depend upon a final ruling from the District Courts that you and the named Plaintiff are “similarly situated” under federal law. Failing to return and have filed a “Consent to Join” form postmarked on or before the deadline means that you cannot be allowed to participate in any settlement or judgment for damages under the Fair Labor Standards Act as part of this lawsuit.
The Fair Labor Standards Act contains a limitations period of at least two years and potentially up to three years for the filing of a claim for unpaid overtime wages, after which the claim is forever barred. The statute of limitations on your claim for unpaid overtime wages will not stop running unless you elect to submit a Consent form and that form is filed with the Court. In the event that you decide not to file a Consent to Join in this Lawsuit, you should consult with your own attorney as to how the statute of limitations would apply to your claim.
If you choose to file a “Consent to Join” form and the Court later permits your claims to proceed to trial as part of the collective action, you will be bound by any judgment regarding the FLSA claims entered in this case, whether favorable or unfavorable.
If you choose to join the collective action, you will be represented by the law firm currently representing the Plaintiff. The attorneys for the Plaintiff are being paid on a contingency fee basis, which means that if there is no recovery, there will be no payment to the attorneys. Attorneys for the Plaintiff may be paid either by the Defendant, or they may, either in addition to or instead of payment from the Defendant, receive a percentage of any money judgment or settlement in favor of you, or others similarly situated, as agreed by contract or ordered by the Court.

If you return a Consent to Join form, you should be aware that important decisions concerning the prosecution of this case including for the FLSA claims may be made on your behalf.
As an alternative to joining this lawsuit, you may file your own lawsuit with any counsel of your choosing, or do nothing.
If you choose not to join this collective action, you will not be affected by any judgment or settlement in this case on this claim, and you will not be bound by any judgment on the Fair Labor Standards Act claim, whether favorable or unfavorable to the class. If you choose not to file a Consent to Join form, you are free to file your own lawsuit. If you choose not to file a Consent to Join form, the statute of limitations will continue to run until such time as you file a lawsuit on your own behalf.
Federal law prohibits the Defendant or its agents from discharging or in any other manner discriminating against you because you elect to join this action by filling out and returning the “Consent to Join” form, or otherwise exercise your rights under the Fair Labor Standards Act.
Michael Massey (FBN 153680)
855 E. UNIV. AVE.
Gainesville, FL 32601
Telephone: 352.505.8900
Facsimile: 352.414.5488

Further information about this Notice, the deadline for filing a “Consent to Join,” or questions concerning this lawsuit may be obtained by telephoning the Plaintiffs’ counsel at 352.505.8900.

                                                    XI.                         COURT AUTHORIZATION

This Notice and its contents have been authorized by the United States District Court. The Court has taken no position in this case regarding the merits of Plaintiffs’ claims or the defenses of the Defendant.