Florida Labor and Employment Attorneys

There is a well-known Faustian legend about the great Delta blues musician Robert Johnson that maintains he went out to a crossroad down in Mississippi and agreed to sell his soul to the Devil in exchange for becoming the greatest Blues musician who ever lived.  This story has grown through the decades, and it certainly does not help that Mr. Johnson passed away under mysterious (or at least mysterious to the historical record) circumstances at the age of 27.  Robert Johnson left behind a comparatively small body of work, but his legacy on music is undeniable.  One of the great tracks he left behind is “Cross Road Blues.”  In the song, the narrator discusses the difficulties he is facing and how he searched for guidance while at the crossroad.  Like the narrator, we often receive calls from employees and employers at the crossroad of an employment relationship.  One question asked of us on an almost daily basis is whether non-compete agreements are enforceable in Florida.  In this post, we will answer that question and provide some guidance regarding such agreements.

The short answer is that non-compete agreements are generally valid in Florida, if they meet certain requirements.  Section 542.335, Florida Statutes, governs non-compete agreements in Florida. Such agreements are valid “so long as such contracts are reasonable in time, area, and line of business[.]” § 542.335(1), Fla. Stat. (2021).  Non-compete agreements must be in writing, and the party seeking to enforce it must also “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(1)(a)-(b), Fla. Stat. (2021).  The party seeking to enforce the non-compete agreement must “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(1)(b), Fla. Stat. (2021).  The Legislature provided the following examples of a “legitimate business interest,” although this is by no means a complete list:

1. Trade secrets (as defined in section 688.002(4), Florida Statutes);
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets;
3. Substantial relationships with specific prospective or existing customers, patients, or clients;
4. Customer, patient, or client goodwill associated with:
   1. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
   2. A specific geographic location;
   3. A specific marketing or trade area.
5. Extraordinary or specialized training.

§ 542.335(1)(b)1.-5., Fla. Stat. (2021). The party seeking to enforce the non-compete must also plead and prove that “the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” § 542.335(1)(c), Fla. Stat. (2021).  Generally, the courts will deem reasonable a non-compete for two (2) years or less and will examine the geographic scope of the non-compete on a case-by-case basis.  It is important to note that non-compete agreements vary and that it is critical that they be evaluated on an individual basis by an attorney.

One recent development of note is President Biden’s issuance of an Executive Order that in part targets non-compete agreements.  Specifically, President Biden instructed the Chair of the Federal Trade Commission (“FTC”) as follows: “To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Proclamation 14036, 86 FR 36987 (July 14, 2021).  To date, there has been no implementation of this Executive Order.  Even if the FTC attempts to enforce the limits on non-competes, there will certainly be legal challenges.  We will provide updates on this issue as they become available.

If you need further assistance navigating the crossroad of an employment relationship (or ensuring you are prepared if you ever come upon it), please do not hesitate to contact us.  We are here to make sure that employees and employers can have a smooth transition and do not feel as lost as Robert Johnson’s narrator.

We hope you and your family stay safe and healthy.

It can certainly be said that, like the subject of the famous Pat Benatar song, COVID-19 does not fight fair.  And like Pat Benatar, humanity has declared, “Knock me down, it’s all in vain.  I get right back on my feet again.”  We have received several calls regarding employers requiring their workers to be vaccinated.  This blog post will answer some of the most asked questions.

The question we receive most often is, “Can a company require employees to get the COVID-19 vaccine?”  The Equal Employment Opportunity Commission (“EEOC”) has made it clear that covered employers (generally, employers with 15 or more employees) can require all employees coming into the workplace to be vaccinated as long as the employer complies with the relevant laws (such as Title VII and the Americans with Disabilities Act).  An employee may seek a reasonable accommodation to be excused from the requirement for reasons such as a disability or a sincerely held religious belief, practice, or observance.  An employer must evaluate the accommodation request to determine if a reasonable accommodation can be provided that does not pose an undue hardship (significant difficulty or expense) on the employer.  Employers must ensure they have a policy that does not discriminate against an employee due to a protected class (for example, race, gender, age, religion, sex, or any other class protected by law).  Reasonable accommodations that employers may provide to those with a disability or a sincerely held religious belief include, but are not limited to, requiring the employee to wear a face mask, requiring the employee to “social distance” from other employees, working remotely, or periodically being tested for COVID-19.  On a related note, the Department of Labor has made it clear that under the Fair Labor Standards Act (“FLSA”), an employer is required to pay an employee for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.

Another question we often receive is, “Can a company reward an employee for getting the COVID-19 vaccine?”  The answer is yes, an employer may provide incentives to employees to get vaccinated, if the employer does not acquire genetic information about the employee.  These incentives may include financial bonuses or additional paid time off.

One final question we often receive is, “May a company require proof of vaccination?”  Yes, an employer may require proof of vaccination.  That information, however, must remain confidential in the employee’s medical file.

The federal government has added a new wrinkle to this issue by announcing that, via Executive Order and the Occupational Safety and Health Administration (“OSHA”), it will mandate vaccines (or, in some cases, weekly testing) for federal employees, government contractors, and all employers with 100 or more employees. These measures are highly controversial and will undoubtedly be subject to Constitutional and other legal challenges.  We will provide further updates as these disputes are resolved in the federal courts.

As we have noted previously, the COVID-19 pandemic has led to an ever-changing landscape.  Our firm will continue to “put up our dukes” and assist clients in traversing through this crisis.  Please stay tuned to this blog for additional updates and contact us if you have any questions or concerns.

We hope you and your family stay healthy and safe.

Coronavirus and Employment Law: What Should Employers and Employees Know?

*NOTE: This article addresses the application of existing laws to the coronavirus pandemic. For a discussion of new requirements under the recently enacted Family First Coronavirus Response Act (FFCRA), which expands the requirements of the FMLA and FLSA, see Part 2 of this article.

In light of the outbreak of coronavirus, which is currently having a significant impact on the operations of many businesses, it is important for both employers and employees to be mindful of their legal rights and obligations. The following is a summary of some of the key legal issues that might arise under pertinent employment statutes:

Family and Medical Leave Act

⦁ An employee who tests positive for coronavirus would unquestionably have a serious health condition under the FMLA. Assuming that employee meets the other criteria for coverage (12 months service, 1,250 hours worked within previous 12 months, employed at a location with 50 or more employees within a 75 mile radius),, the employee should be placed on FMLA leave.

⦁ If the business continues to operate while the employee is out, the employer may count the time off towards the employee’s 12 week allotment of protected leave. However, if the business shuts down or otherwise furloughs its employees for any period of time, that time cannot be counted towards the employee’s allotment of leave.

⦁ An employer may require a fitness for duty certification prior to permitting an employee who has contracted coronavirus from returning to work.

⦁ Refusal to reinstate an employee who has recovered from the virus could prompt claims for interference with rights and retaliation under the FMLA.

Americans with Disabilities Act

⦁ Although coronavirus is a temporary condition that does not meet the definition of “disability” under the ADA, the law might nonetheless be implicated if an employer unreasonably refuses to reinstate an employee who has recovered from the virus.

⦁ An employer’s refusal to reinstate or dismissal of an employee who has recovered from the virus could be deemed as discrimination against someone who is “regarded as” having a disability.

⦁ Conversely, temporary measures short of dismissal (i.e. mandatory leave) for individuals known or suspected to have been exposed to the virus would likely be deemed permissible, given the legitimate need to protect co-workers from exposure.

⦁ Because coronavirus is not a “disability,” the ADA does not require that employers accommodate those with the virus by permitting telecommuting or work from home. If employers elect to do so, however, they may set a precedent applicable to disabled employees who request the option of working from home in the future.

Fair Labor Standards Act

⦁ Hourly employees will continue to be paid for the hours they work. If employees are working from home or remotely due to “social distancing” practices, employers should implement clear rules for reporting working hours to ensure that all hours are paid and that employees are not over-reporting their time.

⦁ Salaried exempt employees who miss time because they have contracted the virus are generally not entitled to pay under the FLSA. The employer may pro-rate salaries (for partial week absences after PTO is exhausted) or suspend salary payments (for full week absences) while the employee is out of work without destroying the salary basis of pay.

⦁ If the employer shuts down the business, salaried employees are entitled to their full salary for any partial week worked (i.e. if the employer shuts down or re-opens the business mid-week). No salary is due during any full week in which no work is performed.

⦁ Salaried nonexempt employees paid pursuant to a fluctuating workweek pay plan should receive their full salary in any week in which any work is performed.

Workers Compensation

As coronavirus, even if arguably contracted through work interactions, is not “workplace illness” (compared to, for example, “black lung” in coal miners), and therefore would likely be deemed outside of workers compensation coverage.

Compelled Attendance

The biggest grey area in the law arises from the question of whether employers may compel employees to work or, stated another way, terminate those who refuse to come to work, during the outbreak.

In an at-will state such as Florida, employers can, of course, terminate employees for any reason. Certainly, a refusal to work qualifies.

An ancillary question is whether an employee who is compelled to work and then contracts the virus might have a claim against the employer under a theory of negligence. While courts have rejected claims of this type in the past (i.e. Quezada v Circle K Stores, Inc., 18 Fla. L. Weekly Fed. D 795 (M.D. Fla. 2005)), the law remains somewhat unsettled in this area.

Conclusion

Ultimately, employers must work with employees to balance their respective interests and avoid the legal pitfalls that might arise. Our firm remains available to address specific questions in this area, and will remain accessible throughout this crisis. Stay safe and stay healthy!

Coronavirus and Employment Law, Part 2: New Legislation

In our previous blog, we addressed the employment law implications of the coronavirus pandemic under existing employment laws. Congress has now passed new legislation, titled the “Family First Coronavirus Response Act” (FFCRA), which creates new rights and obligations for employees and employers.

The provisions of this new law take effect on April 3, 2020 (15 days from enactment), and expire on December 31, 2020.

Emergency Family and Medical Leave

This portion of the FFCRA temporarily expands the Family and Medical Leave Act (FMLA), as follows:

Employee Eligibility: Any employee who has been employed for at least thirty (30) calendar days may seek Emergency FMLA leave.

Employer Coverage: Employers with fewer than five hundred (500) employees must provide Emergency FMLA leave.

Qualifying Circumstance: The Emergency FMLA provisions apply to employees who are unable to work (or telework) because they must care for a minor child because the child’s school or care facility has been closed, or if their child care provider is unavailable, due to a “public health emergency” (currently in effect due to the coronavirus).

Leave Entitlement: Eligible employees may take leave for up to twelve (12) weeks for a qualifying circumstance.

Paid Leave Requirement: The first ten (10) days of Emergency FMLA is unpaid. During that time, employees may elect, but may not be required, to utilize any accrued paid time off. During the remainder of the Emergency FMLA, employees must be paid two-thirds of their normal pay (i.e. regular working hours x 2/3 regular rate of pay, or 2/3 weekly salary), up to $200 per day and a maximum aggregate total of $10,000.

Job Restoration: The FMLA’s requirement of job restoration to employees returning from leave will not apply to employers who employ fewer than twenty five (25) employees if the job previously held by the employee no longer exists due to the public health emergency, and the employer is not able through reasonable efforts to provide an equivalent position.

Enforcement: As this portion of the FFCRA amends the FMLA, it is subject to the FMLA’s enforcement provisions, including civil actions for denial of rights and retaliation.

Paid Sick Time Requirement (Emergency Paid Sick Leave Act)

The Emergency Paid Sick Act (EPSA) portion of the new law creates new requirements for employers during the effective period of the FFCRA (through the end of 2020).

Coverage: The EPSA requirements apply to employees (regardless of how long they have been employed) working for private employers engaged in commerce with fewer than five hundred (500) employees, as well as public employers.

Qualifying Circumstances: Employees will be eligible for paid sick time under the following circumstances relating to coronavirus:

⦁ They are subject to a Federal, State or local quarantine or isolation order;

⦁ They have been advised by a health care provider to self-quarantine;

⦁ They have experienced symptoms and are seeking a medical diagnosis;

⦁ They are caring for an individual subject to a quarantine or isolation order, or who has been placed under quarantine by a health care provider;

⦁ They are caring for a child due to a school or care center closure, or if their child care provider becomes unavailable; or

⦁ They are “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.”

Exclusions: Employees of health care providers and emergency responders may be excluded from the EPSA’s requirements.

Paid Sick Time Entitlement: Under the EPSA, full time employees are entitled to eighty (80) hours of pay. Part time employees are entitled to the equivalent of two-weeks of their average weekly earnings.  The maximum amount due to any employee is up to $511 per week/$5,110 total for self-care (bullets 1 through 3 above) or $200 per week / $2,000 total for other qualifying circumstances (bullets 4-6 above). Employees may use their accrued paid time off before utilizing the mandatory paid sick leave, but may not be required to do so.

Enforcement: Employers violating the EPSA may be subject to liability under the minimum wage and retaliation provisions of the Fair Labor Standards Act (FLSA).

Tax Credits

Employers who provide paid family, medical or sick leave under the FFCRA may be eligible for tax credits to offset the cost of compliance.

As the federal government continues to address this crisis, more legislation may be enacted. Please stay tuned here for more updates and, as always, stay safe and stay healthy!

Coronavirus and Employment Law (Part 3)

As part of its continued effort to address the economic impact of the coronavirus pandemic, Congress has passed new legislation titled the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) that contains significant provisions that impact the workplace

Enhanced Unemployment Benefits
The CARES Act provides significantly greater unemployment benefits during the crisis. Specifically, the new law enhances (1) the categories of workers eligible to receive benefits, (2) the amount of benefits available, and (3) in some cases, the duration of payment.

In terms of eligibility, the CARES Act makes unemployment benefits available to many who typically are not eligible. Included are self-employed workers, independent contractors, and certain individuals who do not meet the standard tenure and hours minimums for eligibility. Those who now qualify may seek up to thirty-nine (39) weeks of benefits during the remainder of 2020 in the event that their job loss is caused by circumstances related to the coronavirus pandemic.

The most notable change is the amount of benefits employees can receive. In addition to sums provided under state law, employees can receive an additional $600 per week until July 31, 2020. This increase may make the prospect of drawing benefits more attractive to employees, and may provide employers with the ability to furlough employees without creating extreme financial hardship.

Finally, the new law allows for an additional thirteen (13) weeks of emergency unemployment benefits for employees who exhaust their entitlement under state and federal law.

Employees seeking to assess their eligibility or apply for benefits should access the Florida Reemployment Assistance website, FloridaJobs.org.

Small Business Loans/Employment Incentives

The CARES Act also provides access to loans for small business concerns, and provides incentives, through loan forgiveness or credits to businesses based upon the number or percentage of employees retained, the amount of the loan funds used for payroll, and the employer’s reinstatement of workers at the conclusion of the crisis. Your financial planners should study these new requirements and opportunities, as they may provide a benefit to both employers and employees.

Our firm will continue to assist clients in navigating this ever-changing landscape. Please stay tuned to this site for additional updates, and feel free to contact our offices with questions or concerns.

Expanding Employee Protections and Employer Compliance Issues  

            In the area of employment discrimination, a single set of facts can often raise legal issues under multiple overlapping statutes.  For example, an employee who is denied a leave of absence to deal with pregnancy complications might have claims under three federal laws, Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), and one Florida state statute, the Florida Civil Rights Act (FCRA).  Depending on timing and strategic issues, an employee can elect to utilize some or all of these avenues of redress.

In recent years, these protections have been expanded even further pursuant to several county discrimination, human rights and civil rights ordinances.  Ordinances are, simply stated, local statutes that can provide protections and remedies that mirror or, in many cases, exceed those offered by federal and states law.

In Central Florida, there are currently three counties that have enacted ordinances of this type: Orange, Volusia and Osceola.  While these ordinances create certain redundancies in the law, they also expand three key aspects of employment discrimination law: (1) employers covered, (2) protected categories of employees, and (3) direct access to court system.

Expansion of Employer Coverage 

          Most federal and state discrimination statutes are inapplicable to employers with fewer than fifteen (15) employees.  The county ordinances listed above, by contrast, apply to employers with five (5) or more employees.  Thus, many small employers who are beyond the reach of federal and state law are subject to the protections afforded by these ordinances.  Consequently, these small employers must develop policies and procedures to address equal employment opportunity and harassment issues.

Expansion of Protected Categories 

The three ordinances, in addition to the categories protected under state and federal law (race, color, religion, national origin, sex, disability, age, marital status), extend their prohibitions to discrimination against individual due to their “familial status” and “sexual orientation.”

“Familial status” refers to individuals who are pregnant or in the process of securing legal custody of a minor.  “Sexual orientation” refers to an employee’s sexuality, actual or perceived, as well has his or her gender identity and expression.  In Volusia County.  These protections include, in applicable circumstances, the right of transgender employees to utilize their restroom facility of choice.

Direct Access to Court 

Unlike employees utilizing federal and state employment discrimination statutes, the ordinances do not require that employees file an administrative charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or Florida Commission on Human Relations (FCHR) before filing a lawsuit.  Thus, the first notice an employer might receive of a claim under an ordinance can be the service of a civil lawsuit.

Discrimination ordinances greatly expand the “playing field” of employment discrimination law, both for employers and employees.  Given the breadth of the protections in covered Counties, employees should consult counsel regarding their rights to determine which laws apply and best serve their purposes.  For employers, the ordinances increase the number of companies that must implement preventative policies and procedures, as well as the number of protected categories that their policies must address.

For more information regarding these issues and how they apply to you or your company, please contact the firm.

In the realm of employment law, one of the most frequently misunderstood terms is retaliation.

Employees often view the term too broadly, believing that the law prohibits all acts of retribution or punishment that follow a complaint of mistreatment. Conversely, employers often underestimate the number of circumstances in which they might have exposure to liability based upon allegations of retaliation.

The key to understanding the scope of the protections against unlawful retaliation can be summed up in two words: protected conduct.

“Protected conduct” is a catch-all for employee actions for which an employer is legally prohibited from imposing adverse consequences. They include, but are not limited to (1) allegations of or expressions of opposition to discriminatory conduct on the basis of race, color, sex, religion, national origin, age, disability, or other statutorily protected categories, (2) participation in formal proceedings related to discrimination claims, (3) invocation of rights to workplace accommodations, family and medical leave, or workers’ compensation benefits, (4) allegations of violations of laws that govern employer behavior or practices, and (5) expressions of opposition to violations of laws, rules and regulations (i.e. whistleblowers).

While the form of “protected conduct” can vary, a general rule for employees is that it must be specifically expressed. For example, an employee that believes he or she has been subjected to discrimination, but merely complains about “unfair treatment,” likely will not be found to have engaged in protected conduct. Similarly, many courts have held that retaliation prohibitions do not attach where an employee merely asserts that he or she has been subjected to “harassment” or a “hostile work environment,” but does not tie those allegations to a protected status (i.e. race, sex, age, etc.). Finally, an employee who seeks an accommodation, but does not put the employer on notice that the need has arisen from a disability, pregnancy or medical condition, may not be found to have triggered anti-retaliation protections.

Thus, while some employees may find it awkward or difficult to elevate general complaints in the workplace to specific allegations of legal violations, doing so is necessary to ensure that the “bubble of protection” provided by anti-retaliation laws are activated.

From the employer’s perspective, when an employee communication crosses the line between general workplace matters and protected conduct, a “red flag” should be raised. From that point forward, the employer must consider whether its actions might be construed by a third party as retaliatory.

Timing is a significant factor. If an employee is subjected to an adverse action within days of having engaged in protected conduct, the level of scrutiny will likely be very high. This does not mean that an employer is entirely handcuffed and cannot take actions necessary to effectively run its business. However, in doing so, it is advisable to have clear, objective and documented reasons for the measures taken.

We frequently provide assistance in this area. Representing employees, we often act as a guide, ensuring that communications with employers clearly invoke legal rights and qualify as protected conduct. Representing employers, we have extensive experience in assisting management in balancing legal obligations with business needs. In both cases, we strongly recommend that counsel be sought early in the process. Please contact us if you wish to consult on matters of this type.

The adage that an “ounce of prevention is worth a pound of cure” is particularly applicable in the area of compliance with the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) and the Florida Minimum Wage Amendment (FMW). As the interpretation of these laws often involve grey areas and counter-intuitive rules, we strongly recommend that employers regularly conduct payroll audits with the assistance of counsel

Unfortunately, while an audit can prevent future violations, they also may reveal past errors. It is then that employers will face a dilemma: what corrective measures should be taken?

Often times, an employer’s first instinct is to correct an error on a prospective basis only (i.e. by reclassifying employees, altering pay plans, or improving timekeeping methods). The rationale behind this approach is usually twofold. First, many employers presume that employees, upon being advised of such changes, will accept their employer’s good faith and refrain from bringing lawsuits relating to past practices. Second, often times, correcting an error retroactively is deemed to be cost prohibitive.

The prospective approach is, in essence, a calculated risk. On the day the error is corrected, the “clock starts ticking” on the potential claims arising from past practice by virtue of the running of the applicable statutes of limitations. If enough time passes, those claims will be extinguished. However, if even one employee files a lawsuit, the employer can be saddled with substantial damages and attorney’s fees.

It would seem that a logical alternative would be to settle past claims with employees. Unfortunately, that option is highly problematic. Unlike most other employment related claims, claims for unpaid wages arising under the FLSA cannot be waived by employees through private settlement agreements or releases. Rather, there are only two ways an employee may waive his or her rights under this statute: (1) under the supervision of the DOL, or (2) in the context of a lawsuit. As a result, an employer that provides back wages to an employee and obtains a waiver or release can still potentially be sued by that employee (i.e. if he or she later alleges that the settlement was for less than they were actually owed).

Recently, another option has emerged. On March 6, 2018, the Department of Labor’s Wage and Hour Division (WHD) announced an initiative called the Payroll Audit Independent Determination (PAID) program. Through this program, an employer that discovers a payroll error impacting minimum wages or overtime pay can report the matter and seek assistance from the WHD. The agency will then facilitate a resolution of the matter through a supervised settlement process.

There are several potential benefits of this program. First, it is a faster and less costly mechanism for resolving matters of this type. Second, in a supervised settlement, employers are typically only required to pay two years of back pay (as opposed to the three years available in court), and are not required to pay liquidated (double) damages which are always sought in litigation. Third, in resolving the claims with the WHD, there is no additional cost of paying an employee’s legal fees. Finally, unlike a private settlement, any resolution reached under the WHD’s supervision is binding and final.

The option of “confessing” to the WHD may not be the best option in all circumstances. It could, however, be the least costly remedial measure in certain circumstances.

While the issues that arise in attempting to cure a discovered error in FLSA and MWA compliance may seem daunting, none of them should deter employers from proactively evaluating and, if necessary, correcting their pay practices. Taking control of these problems, both through prevention methods and options to cure errors, is always the best approach. We regularly assist employers in this regard, and would welcome the opportunity to assist your organization.

In recent months, the topic of sexual harassment has come to the forefront of the news, primarily due to the revelations of misconduct by several powerful figures in the entertainment industry and politics. While the increased attention to this issue is beneficial, the media often fails to accurately and adequately describe the law, or the legal procedures, relating to sexual harassment in the workplace.

In the “court of public opinion,” there is ostensibly no time limit within which an allegation must be made, the definition of sexual harassment can be very broad, and consequences can be visited upon the accused without formal legal process. The legal system, which governs these issues outside the world of celebrities, is far more rigid. For this reason, it is important that both employees and employers be made aware of some key aspects of sexual harassment law.

First and foremost, not all offensive conduct of a sexual nature is deemed to be actionable sexual harassment. In determining whether that line has been crossed, the law asks three questions: The first is whether the employee considered the conduct offensive and unwelcome (the “subjective” test). The second is whether a reasonable employee would also find the conduct offensive and unwelcome (the “objective test”). The third is whether the conduct was severe or pervasive (as opposed to minor and consisting of isolated incidents).

If, in answering these questions, the conduct is found to qualify as sexual harassment, the employer is not automatically liable. Rather, in most cases, if the employer maintains a policy prohibiting harassment in the workplace, the employee must first attempt to seek a remedy internally by reporting the conduct to the employer. If the employer takes prompt action and corrects the problem, it is typically insulated from liability. If the employer fails to do so (allowing the harassment to continue), or if it retaliates against the employee who complained, significant liability can result.

The legal system, unlike the “court of public opinion,” has strict time limits. To preserve a claim of sexual harassment (not involving a tort such as assault and battery), an employee must file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) within three hundred days, or with the state Florida Commission on Human Relations (FCHR) within three hundred sixty five days, of the unlawful conduct.

From a practical standpoint, the best advice that can be given to both employees and employers is to get ahead of the issue. Employees should utilize the available reporting mechanisms provided by their employer “early and often.” While this can be an extremely daunting task, in our experience, this is the surest way for an employee to protect and, ultimately, vindicate their rights. We routinely assist employees through this difficult process.

Similarly, employers should adopt an “ounce of prevention is worth a pound of cure” approach. By creating and disseminating a clear and comprehensive anti-harassment policy, and by addressing complaints with a prompt and thorough investigation and, where necessary, disciplinary action, an employer can reduce the likelihood that a rogue manager will saddle the company with significant liability. Our attorneys provide guidance to employers in this crucial aspect of employee relations as well.

Workplace harassment, unfortunately, remains a serious problem. Contrary to the media’s implication, however, the legal principles that address this issue have been in place for decades. Simply stated, it’s not new to us. We welcome the opportunity to assist you in navigating this system.