hr-attorney

Employment matters can be tricky. From hiring and termination decisions to employee disputes and everything in between, there’s no question that human resources departments juggle a variety of complicated issues. In some cases, however, HR may not have all the answers. And that’s okay! But it’s important to know where to turn when these situations do arise. “Company HR managers do an amazing job of keeping up with all the details of taking care of the company’s employees. Sometimes they need help understanding how federal and state laws and regulations apply, particularly in unique situations.” HR Attorney Kristi Benson If you have questions about a particularly complicated employment matter, it might be time to consult with an HR attorney.  BrewerLong is an experienced employment and human resources law firm located in Florida that has the answers you need. Give us a call today to see how we can help you.  If you’re not quite ready to speak with an HR attorney, that’s okay too. In the meantime, here are 6 times when you should consider contacting a human resource attorney for your employment-related legal needs. 1. Hiring Decisions Before you hire an employee, there are some things you should know.  Many employers don’t realize that legal issues can arise before you even hire an employee. Thus, consulting with a human resource attorney before you begin the hiring process is a great idea. In fact, doing so just might keep you out of hot water in the future.   For example, while asking about an applicant’s age during the interview process might seem harmless, doing so could result in a potential age discrimination claim later on.   Other examples of things you shouldn’t ask a potential job candidate in the hiring process include questions about the applicant’s: Race,  Nationality,  Sexual orientation,  Marital status, or Disability.  An HR attorney can help you determine what questions are appropriate and which ones are better left unasked. Another hiring decision that may arise is how to classify a potential worker. For example, the decision of whether to classify a worker as an independent contractor vs. an employee will impact both the worker’s rights and the employer’s liabilities and expenses. Thus, it is important to know the potential implications before making a decision.  Looking to hire new workers to add to your team can be an exciting process. Nevertheless, you should always make sure you do so in an appropriate, legal, and ethical manner.  If you have questions about how to go about the hiring process in a manner that best protects you from potential legal liability, contact an HR attorney today.  2. Firing Decisions Just as important as hiring decisions are firing decisions.  The decision to terminate an employee can be difficult. Sometimes, however, it is necessary.  Examples of reasons you may need to fire an employee include:  Unethical behavior,  Theft or misuse of company property,  Poor work performance,  Poor fit within the company culture, and  Violation of company policy.  In some cases, you may need to terminate someone’s employment for reasons outside the employee’s control. For example, termination due to company-wide budget cuts may arise that render downsizing inevitable.  Whatever the case may be, the fact remains that firing an employee is a complex task. And depending on the reason for terminating the employee, you may be worried about a potential lawsuit.  Florida is an at-will employment state. This means that an employee can be fired at any time, as long as it is not for an illegal reason. Despite this fact, firing an employee still presents issues in many cases.  Even if you did not intend to fire an employee for an illegal reason, sometimes it may seem that way from an outside perspective. Thus, it is imperative that you take extra caution when firing an employee. By consulting with a human resources law firm prior to making any employment termination decisions, you can better protect yourself from exposure to legal ramifications. 3. Employment Contract Drafting and Review As is the case with all types of contracts, an employment contract is a legal document that details important rights and obligations.  While you may not need to have workers sign an employment contract, it is common practice to do so. Because employment contracts are legal documents, it is important to have them drafted and/or reviewed by an experienced legal professional. This way, you can better verify the validity of the contract and ensure that it is a fully enforceable legal document that will stand up in court if a dispute ever arises.  4. Drafting Company Policies Keeping company policies transparent and up to date is a vital part of running a company. Most importantly, it is crucial that new policies do not violate any laws.  When adopting a new policy, it’s always a great idea to contact an HR attorney to review the policy for potential legal issues. This may help you reduce the likelihood of legal challenges in the future. Additionally, it is a well-known fact that the law is ever-changing. Thus, even for your company’s more established policies, periodic review is imperative. A human resources law firm can help you review old policies in view of new laws and make revisions where necessary and appropriate. 5. Representation in Administrative Proceedings Brought By an Employee Employment law is regulated by multiple administrative agencies, including the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor.  Sometimes, a current or former employee may file an administrative claim against their employer with such a governmental agency.  When a government agency requests your cooperation in an investigation or administrative proceeding, contact an HR attorney as soon as practicable. While some employers try to handle administrative matters internally, a human resources attorney with experience in employment law issues can be an invaluable resource. An attorney can help you evaluate the strength of an employee’s claim against you and determine how best to respond.  6. Deciding Whether and How to Sue an Employee We all hear stories about employees…

Hiring-Independent-Contractors-vs-Employees

Whether a worker is an independent contractor or an employee impacts company expenses to employ the individual. Additionally, a worker’s classification affects the individual’s rights in the workplace. Correctly classifying worker status is an essential element of Florida employment law.  Growing companies, particularly when they are starting out, often want to minimize their own labor expenses by engaging independent contractors. However, this can backfire, particularly if an independent contract is actually an employee for legal purposes. Florida Employment Attorney Kristi Benson What Is the Difference Between an Independent Contractor and an Employee? The Florida Department of Revenue aids in assessing employee or independent contractor classification. The following nine determining factors aid in the classification: The extent of control the business exercises over the work;  Whether the employee engages in a distinct business;  Whether completion of work is supervised or independent; The level of skill required;  Whether the employer or the worker supplies equipment and tools;  The length of employment;  Whether the job is part of the regular business of the employer; Whether parties believe they are creating an employer/employee relationship; and  Whether the hiring party is a business. Another vital issue in classification questions is whether the individual is financially dependent on the company. An economically dependent individual is likely an employee. On the other hand, a financially independent individual is likely an independent contractor. What Are the Rights of Employees vs. Independent Contractors in Florida?  An employee classification affords workers many federal protections. The Fair Labor Standards Act (FLSA) permits employees to earn federal minimum wage and overtime. Florida sets minimum wage at $8.56 per hour. Federal youth employment standards outline the jobs and number of hours minors are permitted to work. Legally mandated benefits afforded to employees also include workers compensation, unemployment compensation, and military leave.  Additionally, the Family Medical and Leave Act (FMLA) applies to employees.  Employers are subject to record-keeping requirements for all employees. What Are the Benefits of Hiring an Independent Contractor? Hiring an individual as an independent contractor offers businesses multiple benefits.  There is a labor cost reduction in hiring independent contractors in Florida. Companies are not required to pay employment taxes or other benefits. These benefits include retirement, paid time off, workers’ compensation, or overtime pay. The avoidance of these expenses is beneficial for smaller companies with less profit.  Independent contractors provide more flexibility. Businesses typically hire independent contractors on a project basis. Therefore, independent contractors offer more flexibility to businesses. Businesses may scale up or scale down project needs based on customer demand. For example, if your business thrives on project-based production, an independent contractor may be a perfect choice.  Florida independent contractor rules dictate employers have considerably less control over independent contractors. The performance of independent contractors is typically result-based. A standard employee/employer relationship measures performance through everyday observation and monitoring.  Employers are not immediately responsible if an independent contractor is injured while working. Reduced liability exists for claims of wrongful termination, job discrimination, and sexual harassment. Employers may still be liable in certain circumstances as state and federal laws regulate these areas. What Are the Benefits of Hiring an Employee?  The benefits of hiring an employee often outweigh the added expenses to your business.  Generally speaking, employees personally invest in your business. The relationship between an employer and employee may provide increased loyalty, productivity, and engagement. Less employee turnover results in less modifications to a company structure. There are more predictable salary and wage costs to a business. Additionally, investments in training employees provide added benefits to business productivity and success.  In addition to the above points, employers exert more control over employees. Employers determine how, where, and when their employees perform their specified tasks. Increased control allows for uniformity in production and performance by all employees. Further, employers control employee hours of work. For example, an employer may demand that all employees work from 9:00 a.m. to 5:00 p.m.  What Should I Include in My Florida Independent Contractor Agreement?  An independent contractor agreement in Florida can protect you and your business from potential lawsuits or liability. Defining terms of employment and expectations prevents confusion related to worker classification.  You can also use the agreement to support your classification of the worker if a dispute arises later. For example, imagine an independent contractor files for workers’ compensation by claiming they are your employee. However, you have an agreement that outlines responsibilities typical of an independent contractor and states that the person is an independent contractor. You can use this agreement as evidence that the person is an independent contractor and defend against the workers’ comp claim. An independent contractor agreement should include the following key points:  Statement of relationship indicating the worker is an independent contractor; Project description outlining the independent contractor’s responsibilities;  Payment and billing terms;  Project timeline and deadlines; and Non-disclosure terms and confidentiality clauses. Florida’s independent contractor rules do not require independent contractor agreements. However, clearly defining these terms in an independent contractor agreement helps both the contractor and client know what to expect. What Are the Penalties for Misclassification of Independent Contractors?  Florida independent contractor laws charge strict penalties for misclassification of worker status. Unintentional misclassification does not prevent the imposition of penalties. According to the IRS, baseless misclassification of an employee as an independent contractor results in liability for employment taxes for the worker. However, if a reasonable basis exists for the misclassification, relief exists from liability for employment taxes.  Penalties include a $5,000 penalty for each misclassified employee. The IRS may also institute a penalty of 1.5% of the employee’s federal income tax liability and another 20% of the amount of Federal Insurance Constributions Act (FICA) tax that should have been withheld from the employee’s wages. Intentional misclassifications result in penalty increases.  Contact Us Classifying a worker as an employee or independent contractor is a challenging task. Correct classification of workers protects your business from unnecessary penalties and litigation. The attorneys at BrewerLong have extensive experience in the field of employment law. We work…

Business Required to Pay Severence in Florida

Under Florida law, a business is generally not required to pay severance to a terminated employee. The U.S. Department of Labor generally does not require employers to offer severance pay. However, the existence of an agreement outlining severance terms creates a legal obligation to satisfy those terms. What Is Severance Pay? Severance pay is compensation an employer provides to an employee after termination of their employment. Monetary payment is not the only form of severance. Severance may include include extended benefits such as health insurance, retirement accounts, stock options, and assistance in searching for new work. Severance pay in Florida also includes payout of unused accrued “paid time off” or PTO, vacation pay, or sick leave. The months of service or the term of employment typically provides the basis for monetary severance calculations. In Florida, severance pay usually applies when an employee is laid off or retires early—not terminated or fired. Severance pay protects the newly unemployed and is typically viewed as a gesture of goodwill. Severance pay provides a previous employee with support until they secure a new job. However, when the employer has had a dispute with a departing employee, severance pay may be bargained to deter future legal action. Elements of a Valid Severance Agreement A strong severance agreement may protect against any future legal action by the employee. Because employees are only required to be paid severance according to an agreement between employer and employee, it’s important for that agreement to also include the benefits the employer gets in exchange for paying severance to the employee. Employers’ Attorney Kristi Benson Depending on the facts of the termination, an employer may want to include the following terms in a severance agreement. Release of Legal Claims If the potential for future litigation exists, the inclusion of a release of future claims is necessary. A release of general claims requests that the employee also agrees to release the employer from any potential claims they may have against the company. Confidentiality and Non-Compete Restrictions Confidentiality or non-compete restrictions may be a vital element of a severance agreement in Florida. Specificity of confidentiality clauses vary and request that the employee not divulge any proprietary information about the company or the employee’s employment. Non-compete clauses limit the employee’s future employment in a similar business over some time and in a certain geographic area. Non-compete clauses in Florida are enforceable as long as they are reasonable and protect a legitimate business interest. Mutual Non-Disparagement A mutual non-disparagement clause provides both the employer and the employee agree not to speak negatively about the other.  Mutual General Release A mutual general release releases both the employer and the employee from any future legal action. Neutral Reference or Reference Letter Severance agreements may include a neutral reference or reference letter. A neutral reference provides that employers may provide only dates of employment and position to requesting future employers. A reference letter goes further and provides dates of employment, position, and a positive statement. Contact Us If you are contemplating the termination of an employee or need assistance drafting strong severance agreements, contact the experienced Florida business law attorneys at BrewerLong. We are the premier employer’s law firm in Orlando and work tirelessly to protect you and your business from future litigation. Contact us today!

What Employers Should Know About Working From Home Laws

The COVID-19 global pandemic has turned many business structures upside down. Nationwide, employers have notified their employees to work from home to slow the spread of the virus. Despite this change in structure, maintaining the productivity of your employees ensures the survival of your business. Employers must consider legal implications, procedural issues, and technological factors associated with this new telework environment. From payroll to tax considerations, if employers are advising employees to work from home, there are many issues to adapt to in the new workplace landscape.  Even when employees are working from home, employers must comply with the same federal and state laws intended to protect employees. Employment Attorney Kristi Benson What Are the Factors to Consider for Working At Home? There are several factors for employers to consider when determining whether the implementation of a work-at-home policy is feasible for their specific business. Making the Decision to Switch to a Telework Environment Employers should review their existing company policies and agreements with their employees and with third parties, such as customers, to determine if remote work is feasible for all or some employees. Does a telework or implementation procedure exist? If not, employers should prepare for clear communication with employees regarding expectations, reimbursement of any related expenses, and management of employee productivity. Employers should also internally review existing insurance plans and policy coverage data to determine if workers’ compensation and employee benefits, among others, remain in place despite the work environment change. Technological Factors Employees should be technologically equipped to work from home with internet connectivity, a computer, a printer, and other business-specific needs. Employers must consider whether privacy and data controls are sufficient to protect the business and any other private information. These may include the following: The implementation of added security measures to protect data and its transmission; The maintenance and storage of company data on company servers and not personal servers; and The requirement of all company communications conducted exclusively through company emails and accounts. It is important to consider the specific needs of your business in determining the level of privacy and controls you need. Communication with Employees Employers should provide defined expectations of employees working from home. It’s also a good idea to ensure clear communication channels to encourage employee communication with upper management. Employers should also confirm with employees how existing company policies, such as workplace harassment and employee benefits, extend into the working-from-home environment. Employee Agreement Where possible, employers should obtain a written agreement from their employees of the new telework policy. The agreement should covers the following points: Which employees are permitted to work from home; Employee expectations when working from home; Employee hours of availability; Employee understanding of the company procedures related to the protection of private information and general security; Monitoring of employee productivity; and  That the work from home policy is temporary and in response to the COVID-19 global pandemic. An employee agreement can help cement employee expectations and encourage continued productivity. Payment of Employees Rules regarding how you need to pay your employees vary depending on whether the employees are considered “exempt” or “non-exempt” under the Fair Labor Standards Act (FLSA). Exempt Employees As defined, FLSA exempt employees performing work outside of the office will earn their salary. These employees are exempt from overtime but will be paid for a full workweek if they performed any work during the week. If exempt employees did not work during a workweek, they need not be paid. However, if the exempt employees are directed not to work by the employer, then they must be paid their full salary. Employers must track the “type” of work exempt employees are carrying out. Monitoring procedures to measure productivity of exempt employees might be a good idea, especially when employees are working away from upper management. Exempt employees must perform their primary duties to maintain their exempt status. Non-Exempt Employees Non-exempt employees are those that are paid on an hourly basis and are eligible for overtime pay. Employers must pay non-exempt employees the hours that they have worked. If a non-exempt employee does not work, the employer is under no obligation to pay. If non-exempt employees are called upon to work extended hours as a result of the COVID-19 emergency, employers may be required to provide extra overtime pay.   Even more so than with exempt employees, monitoring the hours of work completed by non-exempt employees is important because it can affect overtime pay and other benefits. Disability Considerations Employers must ensure that the same accommodations afforded to any employees with existing disabilities still exist when working from home. For example, if an employee has a disability that requires extended breaks, those considerations must be implemented even though the employee is no longer working in the office. As more businesses adapt their platforms online, accommodations should be made for employees with vision or hearing disabilities. The federal Equal Employment Opportunity Commission (EEOC) requires an employer to make “reasonable accommodations” for a disabled employee, including: Modifying work schedules and policies, Providing qualified readers or sign language interpreters, and Providing devices or modifying equipment. The EEOC ensures that employees with disabilities are able to work just like their co-workers. Business Expenses and Tax Considerations Employees may be able to claim their home office as a tax deduction as a result of mandated work-from-home policies. An employee may request a home office deduction if required by your employer and the employer pays no rent to the employee. If challenged by the IRS, the employee is required to show documentation that the employer required the employee to work from home. The home office of the employee must be exclusively used for work with no personal use at any time during the tax year. If an employer requires an employee to work remotely due to COVID-19, they may wish to consider reimbursing the employee for any new phone, internet, or other expenses incurred, if the additions permit the employee to telecommute successfully. However, they are not required to do…

Florida Firing Laws

Employees and employers alike may wonder: Can you be fired for no reason in Florida? The answer is yes. Florida is an “at-will” state, which means that in most cases, Florida firing laws permit an employer to fire an employee at any time with or without cause. The employer also doesn’t need to give advance notice of termination. Nevertheless, there are a few situations where firing an employee can get an employer into hot water, so it’s important to understand the limitations. Additionally, it’s important to understand legal obligations you may have to an employee after firing them. A knowledgeable employment law attorney can help you develop policies and procedures to ensure that you comply with Florida laws on firing employees. For an overview of those laws, keep reading. How to Fire an Employee Legally in Florida Because Florida is an at-will state, you can generally fire employees without cause or notice. As with any rule, however, there are exceptions. You cannot fire an employee under Florida employment law if termination is for an illegal reason or goes against the terms of an employment contract. Don’t Terminate an Employee for Illegal Reasons Although you can usually terminate an employee for any reason or no reason, some reasons are illegal. If you fire an attorney for one of these illegal reasons, you may face a wrongful termination suit from the terminated employee. Discrimination Federal and Florida state law prohibits employers from firing employees based on: Race, Color, Religion, Sex, Gender identity, Pregnancy, Sexual orientation, National origin, Age, Disability, or Genetic information. In addition to these categories, Florida law prohibits employment discrimination based on marital status or AIDS/HIV. Retaliation Federal law prohibits employers from terminating employees in retaliation for a number of protected activities such as: Filing a complaint or complaining to an employer about discrimination or harassment; Participating in a discrimination or harassment investigation; Requesting accommodations for a religious practice or disability; Complaining about unfair labor practices; Taking leave under the Family and Medical Leave Act (FMLA); Participating in a union; or Reporting hazardous working conditions. Florida has enacted additional laws that protect employees from retaliatory termination for things like: Reporting an employer’s legal violations; Participating in an investigation into alleged violations; Claiming workers’ compensation; or Reporting government waste or gross mismanagement (in the case of public employees). This does not mean that employees in these circumstances cannot be terminated for valid reasons. But employers should tread carefully in such situations because a disgruntled employee may allege that the purportedly valid reason is just a pretext for retaliation. Comply with the Terms of Employment Contracts Employees and employers can choose to alter their at-will relationship with an employment contract. This may contain provisions that require good cause for termination, a certain amount of notice, or other restrictions. If you fire an employee in violation of the terms of an employment agreement, you could be sued for breach of contract. Provide Proper Notice for Large-Scale Layoffs One other law you should be aware of is the federal Workers Adjustment and Retraining Notification (WARN) Act. This federal law requires you to give 60 days’ notice if you intend to lay off either 50 or more employees at one location or more than 1/3 of your full-time workforce. Get in touch with our employment lawyers by filling out the form below. Florida Employment Law After Termination Florida laws on firing employees also require you to do a few things after you have let an employee go. Pay Remaining Wages Florida does not require you to pay a terminated employee’s outstanding wages immediately. However, you do need to be sure to pay them what they are owed by the next regular payday after they are fired. Provide Healthcare Coverage If you have 20 or more employees and offer optional group healthcare coverage, you have to allow the employee to maintain their coverage for up to 18 months following termination. This rule is governed by the federal Consolidated Omnibus Budget Reconciliation Act, commonly known as COBRA. Even though you have to allow the employee to continue coverage, you don’t have to pay for it. Unless you elect to subsidize COBRA as part of a severance package, the employee will have to pay both the employee and employer’s share of the insurance if they want to stay on the group plan. Pay Unemployment Benefits Unless the employee was fired for malicious conduct, they will be able to apply for unemployment benefits after they are terminated. Unemployment benefits will not pose an immediate cost to an employer, because they are paid for through reemployment taxes paid by the employer. However, your Florida reemployment tax rate is affected, over time, by the amount of benefits paid out for your former employees. BrewerLong Can Help You Comply with Florida Firing Laws Firing an employee is a straightforward business in most cases. But if you face issues of possible discrimination, retaliation, or breach of contract, Florida laws on firing employees can become complex. The particular situation involving an employer’s relationship with an employee before termination and the reason for termination is critically important to the employer’s exposure to a claim of wrongful termination. Talking with an attorney before terminating an employee is always best. Employment Law Attorney Kristi Benson BrewerLong is an employment law firm for employers. We take a proactive approach to help you avoid employment suits. We can help you develop procedures, draft policies, and even train your human resources team to help your business stay compliant with Florida employment laws. We can also defend you against wrongful termination, discrimination, breach of contract, or any other employment-related claim. Call us or contact us online today to learn how we can help protect your business.