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At the height of the Civil War, the False Claims Act (“FCA”) was enacted to combat defense contractor fraud perpetrated against the Union Army.[1]  The FCA has been amended many times since 1863, but it remains a powerful weapon for the Government to ensure that taxpayer funds are used properly.[2]  Violators can be subjected to high-dollar fines and damages.  In 2021, the Department of Justice “obtained more than $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government.”[3]  The FCA applies to all types of Government funds, from defense contractors to Medicare recipients.  Many states, including Florida, also have similar Acts to protect State dollars.[4]  In addition to permitting the Government to pursue violators on its own, the FCA also allows private citizens acting as whistleblowers to file suit on behalf of the Government.[5]  Such claims are called qui tam suits, a concept that arose in England where individuals could, in some instances, sue on behalf of the Crown and obtain a share of the recovery.[6]  Individuals who bring suits on the behalf of the Government are called “Relators.”  Under the FCA, private citizens may obtain a portion of the recovery for successful suits.  In cases where the Government takes over for the Relator (i.e., the Government intervenes in the case), the recovery for the individual can be between 15-25% of the recovery.[7]  In cases where the Government declines to intervene (i.e., the individual continues litigating the FCA claim without the Government), the amount can range from 25-30% of the recovery.[8]

FCA cases are complex and require a careful review of all documents and information available.  Once a decision is made by an individual and her counsel to pursue an FCA claim, the first step is for counsel to draft a disclosure statement for the Government.  This document acts as a roadmap, providing the Government with an overview of the claim.[9]  In addition to the disclosure statement, a Relator also provides all relevant documentation to the Government.  The next step is to draft the complaint, which will be filed under seal with the court.  This means that, while the Government conducts its investigation, the complaint is not made public.  Following the filing of the disclosure statement, the Government will interview the Relator.  This is an opportunity for the Relator to provide any additional information.  Once that is complete, the Government will conduct a thorough investigation into the claims and determine if it will litigate the case.  If it declines to litigate, the Relator and her counsel must decide whether to litigate the declined case.  Although a case is declined, Government approval is still necessary if there is a recovery.  FCA litigation can be expensive and lengthy, but Relators play an integral role in assisting the Government and taxpayers in taking on those who defraud the public.  Having experienced FCA counsel is critical, and the attorneys of Jill S. Schwartz & Associates are well-versed in FCA claims and the representation of Relators in these matters.

This is only a brief overview of FCA claims.  There are many complexities to this vital area of the law.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The False Claims Act, The United States Department of Justice, https://www.justice.gov/civil/false-claims-act (last visited May 25, 2022).

[2] Id.

[3] Id.

[4] § 68.081, et seq., Fla. Stat. (2021).

[5] The False Claims Act, https://www.justice.gov/civil/false-claims-act.

[6] What is Qui Tam?, Bracker & Marcus LLC, https://www.fcacounsel.com/false-claims-act-attorneys/what-is-qui-tam/ (last visited May 25, 2022).

[7] False Claims Act Attorneys, Bracker & Marcus LLC, https://www.fcacounsel.com/false-claims-act-attorneys/ (last visited May 25, 2022).

[8] Id.

[9] Id.

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On February 10, 2022, the United States Congress approved a bill (H.R. 4445) entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (“the Act”). The bill, which received bipartisan support, will almost certainly be signed into law by President Biden. Indeed, on February 1, 2022, the Administration issued a Statement of Administration Policy that praised the legislation and called for its passage. The Administration asserted that “[t]his bipartisan, bicameral legislation empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration.” In short, the Act states that agreements that provide that arbitration is the only avenue for individuals (as opposed to going to court) are not enforceable in cases where sexual assault or sexual harassment are alleged. The Act amends the Federal Arbitration Act and represents a significant change for employers and employees (and others who may fall under arbitration clauses) in cases where there are allegations of sexual harassment or sexual assault.

In defining “sexual assault dispute” and “sexual harassment dispute,” the Act is fairly straightforward. “Sexual assault dispute” is defined as “a dispute involving a nonconsensual sexual act or sexual contact, [as defined in federal or similar Tribal or State law], including when the victim lacks capacity to consent.” “Sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” In those matters, the Act provides that “no predispute arbitration agreement or predispute join-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” The Act states that the determination of whether its terms are applicable to a particular lawsuit will be made by a court, rather than an arbitrator. The Act applies “with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”

For employers and employees, this means that any existing forced arbitration clauses are likely to be deemed invalid in cases arising following enactment of the Act where there are allegations of sexual assault or sexual harassment, although the parties can voluntarily choose to arbitrate the claims. Given that the Act specifically addresses claims of sexual assault and sexual harassment, it is possible that moving forward, some claims will have to be arbitrated while the sexual assault/sexual harassment claims proceed to court.

This legislation marks a milestone in allowing individuals to bring their allegations of sexual assault or sexual harassment to the light of the public via the court system. The Act requires an examination of current arbitration agreements and potentially will require revisions to carve out the covered claims. There are other attempts to limit the enforceability of arbitration agreements, although those attempts have thus far proved unsuccessful. We will provide updates at they become available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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In a previous blog post, we referenced the vaccine mandate for employers announced by the Biden administration and stated that there would be legal challenges. This post acts as a follow up in the wake of the U.S. Supreme Court’s opinions in National Federation of Independent Business (“NFIB”) v. Department of Labor, Occupational Safety and Health Administration (“OSHA”), 595 U.S. ___ (2022), and Biden v. Missouri, 595 U.S. ___ (2022). 

In NFIB, the Supreme Court addressed the mandate issued by OSHA for employers with at least 100 employees. Several States, businesses, and nonprofit organizations filed applications with the Supreme Court to stay the mandate, as the Sixth Circuit had lifted a previous stay and permitted the mandate to take effect. NFIB, at *1. The mandate required all covered workers to be vaccinated, and it overruled any contrary state laws. Id. The only exceptions under the mandate were for employees who obtained a weekly test at their own expense and on their own time and wore a mask throughout the workday, employees who worked remotely 100 percent of the time, and for employees who work exclusively outside. Id., at *1, 3. The Court noted that “OSHA has never before imposed such a mandate. Nor has Congress.” Id., at *1. 

After reviewing the history of the mandate and the litigation initiated by the Applicants, the Court held that “Applicants are likely to succeed on the merits of their claim that the Secretary (of Labor) lacked authority to impose the mandate.” Id., at *5. The Court determined that the mandate, covering approximately 84 million workers, extended beyond the agency’s authority. Id., at *5-6. The Court further held that “[t]he Act (Occupational Safety and Health Act) empowers the Secretary to set workplace safety standards, not broad public health measurers.” Id., at *6. The Court rejected the Government’s argument that contracting COVID-19 qualified as an occupational hazard in most workplaces. Id. According to the Court, “[t]hat kind of universal risk (of contracting COVID-19) is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Id., at *6-7. The Court concluded that permitting OSHA to regulate daily hazards “would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Id., at *7. The Court acknowledged that 

OSHA could regulate occupation-specific risks related to COVID-19 (such as researchers who work with the virus). The Court thus criticized OSHA’s “indiscriminate approach” used in the mandate. Id. Given the lack of historical precedent and the authority the Secretary of Labor sought, the Court ruled that the mandate exceeded OSHA’s authority. Id., at *8. The Court thus granted the applications for stays and remanded the cases to the lower courts to continue the legal challenges. Id., at *9. For now, the OSHA mandate is not in effect. Justices Breyer, Kagan, and Sotomayor dissented from the opinion. 

In Biden, the Court addressed a mandate issued by the Secretary of Health and Human Services that requires facilities that receive Medicare and Medicaid funding to ensure that their staff are vaccinated against COVID-19 (unless there is a medical or religious exemption). Biden, at *1. Two District Courts prevented enforcement of the mandate, and the Government appealed to the Supreme Court. Id. The Court noted that one function of the Secretary of Health and Human Services “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Id., at *2. Importantly, one condition that facilities obtaining Medicare and Medicaid funding have long had to meet is to “maintain and enforce an ‘infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.” Id. (citation omitted). 

Unlike in NFIB, in Biden the Court held that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.” Id., at *4. The Court noted that the mandate worked to protect patients and is “consistent with the fundamental principle of the medical profession: first, do no harm.” Id., at *5. The Court related that the Secretary of Health and Human Services routinely imposed conditions to protect patients and that the relevant facilities have always had to satisfy conditions to ensure the safe provision of healthcare. Id., at *6. The Court concluded that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Id., at *8. The Court rejected the argument raised by the challengers to the mandate that the rule is arbitrary and capricious. Id. The Court further rejected the other arguments raised by the challengers. Id., at *8-9. The Court thus granted the Government’s applications to stay the lower courts’ rulings, and the case will now go back to the lower courts. Id., at *9-10. Justices Thomas, Alito, Gorsuch, and Barrett dissented. 

As challenges to COVID-19 measures make their way through the courts, we will continue to provide important updates to help guide employees and employers. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us. 

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On November 18, 2021, Governor Ron DeSantis signed into law legislation related to COVID-19 vaccine mandates by employers. This legislation was passed during a special session of the Florida Legislature called by Governor DeSantis in response to federal vaccine mandates. As the federal mandate is embroiled in legal battles throughout the country, the legal landscape remains very much unsettled. In Florida, this new legislation took effect immediately, and it is critical for employees and employers to stay informed about these changes. 

Section 381.00317(1), Florida Statutes (2021), provides: “A private employer may not impose a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on (1) the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; (2) religious reasons; (3) COVID-19 immunity; (4) periodic testing; and (5) the use of employer-provided personal protective equipment.” (Emphasis and numbering added). Employers are to use forms created by the Department of Health. Those forms can be found on the Department of Health’s website at http://www.floridahealth.gov/newsroom/2021/11/20211118-florida-department-health-covid19-vaccination-exemption-forms.pr.html (last visited Dec. 20, 2021). The takeaway from the above is that employers can implement vaccine mandates as long as they offer the stated exemptions, including allowing employees to opt to undergo testing paid for by the employer or using personal protective equipment (“PPE”). Employers can also continue to protect its workforce through the use of PPE and testing that is separate from a vaccine mandate. 

In order to claim a medical exemption, an employee “must present to the employer an exemption statement, dated and signed by a physician or a physician assistant . . . who has examined the employee.” § 381.00317(1)(a), Fla. Stat. (2021). The statement must provide that in the opinion of the medical professional, “COVID-19 vaccination is not in the best medical interest of the employee.” Id. This exemption is similar to an exemption under the Americans with Disabilities Act (“ADA”). 

Regarding the religious exemption, an “employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.” § 381.00317(1)(b), Fla. 

Stat. (2021). The form provided by the Department of Health makes it clear that an “employer shall not inquire into the veracity (i.e., truthfulness) of the employee’s religious beliefs.” Notably, the employee is not required to provide documentation from a religious leader. 

In order to claim the exemption based on immunity, “the employee must present to the employer an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” § 381.00317(1)(c), Fla. Stat. (2021). The employee must attach a copy of the test results to the form submitted to the employer. 

Regarding the testing exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.” § 381.00317(1)(d), Fla. Stat. (2021) (emphasis added). The statute does not provide an exception if the testing cost would create an undue hardship on the employer. 

In order to claim the PPE exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.” § 381.00317(1)(e), Fla. Stat. (2021) (emphasis added). The statute does not provide a definition for PPE. 

The Florida Legislature made it clear that “[i]f an employer receives a completed exemption statement . . ., the employer must allow the employee to opt out of the employer’s COVID-19 vaccine mandate.” § 381.00317(2), Fla. Stat. (2021). 

The Florida Legislature charged the Department of Legal Affairs with enforcement of these provisions. Any employee may file a complaint with the Department “alleging that an exemption has not been offered or has been improperly applied or denied in violation of this section.” § 381.00317(3), Fla. Stat. (2021). If the investigation uncovers a violation, the employer must be notified and the employer must be given the opportunity to cure the noncompliance. Id. 

If an employer terminates an employee for failing to comply with the vaccine mandate, the employee can file a complaint with the Department. Id. The Florida Legislature noted that “[t]ermination includes the functional equivalent of termination,” which would include forcing an employee to resign. Id. If the terminated employee files a complaint with the Department and the investigation determines that an employee was improperly terminated in violation of the statute, the Attorney General is required to impose an administrative fine not to exceed $10,000 per violation for an employer with fewer than 100 employees and $50,000 per violation for employers with 100 or more employees. Id. The Attorney General may not impose the fine if the employer reinstates the employee with back pay to the date the complaint was received prior to the Department issuing a final order. Section 381.00317 does not provide for individuals to sue their employers. 

The Florida Legislature explicitly notes that “[a]n employer may not impose a policy that prohibits an employee from choosing to receive a COVID-19 vaccination.” § 381.00317(7), Fla. Stat. (2021). Finally, this legislation expires June 1, 2023. § 381.00317(8), Fla. Stat. (2021). 

In addition to employer vaccine mandates, the Florida Legislature also prohibited “any business operating in this state” from requiring “patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in this state.” § 381.00316(1), Fla. Stat. (2021). The legislation “does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or government-issued guidance to protect public health.” Id. There are similar restrictions on governmental entities and educational institutions. § 381.00316(2)-(3), Fla. Stat. (2021). There are exceptions for health care providers, certain behavioral health providers, and clinicians. § 381.00316(5), Fla. Stat. (2021). The Department of Health is permitted to impose a fine of up to $5,000 per violation. § 381.00316(4), Fla. Stat. (2021). 

The federal vaccine mandates continue to work their way through the court system. To the extent that Florida law directly conflicts with the federal mandates that remain in place, the federal law would likely control. This will, of course, depend on if the federal mandates survive. This is an ever-changing area of the law, and there will likely be legal challenges to this legislation as well. As these developments occur, we will update this blog. 

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us. 

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In the classic Quentin Tarantino film PULP FICTION (A Band Apart/Jersey Films 1994), one of the primary plot points revolves around main characters Jules and Vincent safeguarding a briefcase with mysterious contents.1 They go to great lengths to ensure the briefcase does not leave their possession. Just as Jules and Vincent take all necessary steps to protect the briefcase, so too must employers ensure the protection of employees’ health records. We often receive calls from employees and employers regarding protecting medical records obtained as part of an individual’s employment, and this post will provide an overview of that topic.

As an initial matter, many individuals associate medical records with the Health Insurance Portability and Accountability Act (“HIPAA”). Although it is true that HIPAA was designed to protect “sensitive patient health information from being disclosed without the patient’s consent or knowledge,” the well-known “Privacy Rule,” which addresses the use and disclosure of protected health information, applies only to “Covered Entities.” See “Health Insurance Portability and Accountability Act of 1996 (HIPAA),” Centers for Disease Control and Prevention, https://www.cdc.gov/phlp/publications/topic/hipaa.html (last visited Nov. 17, 2021). “Covered Entities” include healthcare providers, health plans, and healthcare clearinghouses. Id.

Although an employer may also sponsor a health plan, the Privacy Rule “does not protect your employment records, even if the information in those records is health-related.” “Employers and Health Information in the Workplace,” U.S. Dep’t of Health & Human Services, https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html (last visited Nov. 17, 2021). Generally, the “Privacy Rule” does not apply to the actions of an employer. Id. If an employer also acts as a Covered Entity, it must consider what position it played in obtaining the health information (for example, an individual may be employed by a healthcare provider and be a patient of that provider). Employers are permitted to ask employees for a note from a physician or other health information if necessary for an employment-related purpose (e.g., sick leave, workers’ compensation, wellness programs); however, if employers seek information directly from a Covered Entity, the employee’s authorization will be required. Id. As the Department of Health and Human Services notes, “[g]enerally, the Privacy Rule applies to the disclosures made by your health care provider, not the questions your employer may ask.” Id. Although HIPAA generally does not apply in the employment context, that does not mean employers can freely share an employee’s health information.

Under the Americans with Disabilities Act (“ADA”), if an employer obtains medical records regarding an employee as part of the interactive process, the employer must keep the medical records separate from the personnel file and label them as “confidential medical records.” Employers may share the information with supervisors and managers who need to know the necessary accommodations and potential restrictions on the employee’s duties; first aid and safety personnel who may need to treat the employee if an emergency arises; and government officials who need the information to investigate compliance with the ADA. Similarly, records obtained by employers for purposes of the Family and Medical Leave Act (“FMLA”) must be kept separate from the employee’s personnel file and labelled as “confidential medical records.”

Like Jules and Vincent, we are here to ensure that you know the ins and outs of keeping someone’s “briefcase” secure (or know your rights if there is a concern about someone losing your “briefcase”). If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

¹ As an interesting trivia fact, that briefcase serves as a MacGuffin, “an object, event, or character in a film or story that serves to set and keep the plot in motion despite usually lacking intrinsic importance.” In Merriam-Webster.com. Retrieved November 5, 2021, from https://www.merriam-webster.com/dictionary/MacGuffin.

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Many people take DNA tests every year. Services such as AncestryDNA and 23andMe have become increasingly popular over the last few years. Undoubtedly, genetic testing has become instrumental not only in learning about one’s family history but also in helping to diagnose medical conditions. One of the lesser-known areas of employment law involves genetic information discrimination. This post will examine the Genetic Information Nondiscrimination Act (“GINA”) of 2008 and explore its impact in the workplace.

Title II of GINA prohibits discriminating against employees or applicants because of their genetic information. As with other classes protected by federal law (such as Title VII or the ADA), GINA applies to employers with fifteen (15) or more employees. As a starting point, it is important to understand the meaning of “genetic information.” This phrase includes information about genetic tests and the genetic tests of an individual’s family members (spouse, dependent child, parent, grandparent, or great-grandparent), as well as family medical history. Congress included family medical history because of the routine use of such information to determine if an individual is at an increased risk of getting a disease, condition, or disorder in the future. “Genetic information” also includes an individual’s request for or receipt of genetic services or the participation in clinical research that includes genetic services. Furthermore, the phrase includes the genetic information of a fetus or embryo carried by the employee or a family member of the employee.

GINA makes it clear that an employer may not use genetic information to make an employment decision. Under GINA, it is also illegal to harass a person because of her or his genetic information. This includes, as an example, routinely mocking an employee for his genetic information or about the genetic information of the employee’s family member. As with other forms of discrimination, the harassment must be severe and pervasive to be actionable; in other words, an offhanded comment or isolated incidents of harassment will not be enough to assert a claim against an employer. As with other forms of harassment, employees should report incidents to the proper individual, and employers should take all complaints seriously. Finally, it is illegal to retaliate against an employee for opposing discrimination based on genetic information. Retaliation may include disciplining an employee, demoting an employee, or terminating an employee for raising complaints of discrimination based on genetic information or filing a charge of discrimination with the Equal Employment Opportunity Commission and/or the proper state agency (in Florida, the Florida Commission on Human Relations). It should also be noted that when employers obtain genetic information about employers, such information shall remain confidential except in very limited circumstances.

GINA brought to the forefront the importance of genetic information and ensured that employees are protected from discrimination and retaliation based on the genetic information (and that of family members), just as other classes are protected. When dealing with genetic information discrimination and retaliation, it is important to know your “ACGTs.” We are here to help and ensure employees and employers do not get confused by the law. If you need assistance, do not hesitate to contact us.

We hope you and your family stay safe and healthy.

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“A dog judges others not by their color or creed or class but by who they are inside. A dog doesn’t care if you are rich or poor, educated or illiterate, clever or dull. Give him your heart and he will give you his.”

—John Grogan,

Marley & Me: Life and Love with the World’s Worst Dog

(William Morrow 2005)

There is no doubt that pets make our lives better. There have been numerous scientific studies demonstrating that pet ownership is beneficial to our mental and physical wellbeing. See How to Stay Healthy Around Pets, Centers for Disease Control and Prevention, https://www.cdc.gov/healthypets/keeping-pets-and-people-healthy/how.html. For some, owning a pet is a necessity because they need the help of a service animal or emotional support animal. This post will discuss some of the questions we receive regarding bringing a service or emotional support animal into the workplace. As a starting point, it is important to understand the difference between service animals and emotional support animals.

Under Title I of the Americans with Disabilities Act (“ADA”), which is the provision related to employment, service animals are not discussed. The ADA covers employers with fifteen (15) or more employees, including state and local governments. Florida has similar protections under the Florida Civil Rights Act (“FCRA”). Title II and Title III of the ADA recognize only dogs as service animals, and regulations issued by the Department of Justice also include miniature horses as service animals. To qualify as a service animal, the dog (or miniature horse) must be individually trained to do work or perform a task for an individual with a disability. The task(s) performed must be directly related to the individual’s disability. For example, a service dog may be trained to alert an individual with diabetes when his blood sugar is low. Under the ADA, a service animal does not have to be professionally trained. Service animals must remain under the control of their handlers, and handlers must ensure the animal is housetrained.

Emotional support animals, by contrast, are not considered “service animals” under the ADA. Emotional support animals do not have special training to perform a task related to a disability, but they are undeniably important to their owners and often provide companionship and can help with depression, anxiety, and similar conditions. It may very well be that an individual has a disability and that the emotional support animal assists him with performing the essential functions of his position. For example, an employee with anxiety disorder may need the emotional support animal present to mitigate the disorder and help him perform his work.

Employees seeking to bring service animals or emotional support animals into the workplace should first approach the employer (often the human resources department) and make the reasonable accommodation request of bringing in the animal to assist with his or her disability. The employer should then engage in an interactive discussion with the employee to learn about the disability, how it impacts the employee’s major life activities, and how the disability impedes the employee from performing his duties. If the disability is not apparent and/or the reason for needing the animal is not clear, employers can request documentation related to the disability and/or request. It is important to note that the request and any other aspect of the process should be in writing. Under the ADA (and the FCRA), employers are obligated only to provide a reasonable accommodation and not the preferred accommodation if alternatives exist. The employer may thus provide another accommodation that would permit the employee to perform the essential functions of his position. Employers may deny a reasonable accommodation request if the request would create an undue hardship on the business, although this is a narrow exception.

Likely, after engaging in the interactive process, an employer will be obligated to permit an employee to bring a trained service animal into the workplace. The animal should be permitted in any areas where the employee is permitted, with limited possible exceptions (e.g., a sterile environment). There may, however, be other alternatives to allowing an employee to bring an emotional support animal into the workplace. It is critical that employers carefully consider requests from employees and communication is, as usual, vital.

The decision to seek a reasonable accommodation in the workplace or to respond to an employee’s request can be confusing. If you need assistance in ensuring that you do not end up in a “ruff” situation, please reach out to us.

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!