Employment Law Presents A Rapidly Evolving ‘Legalscape’

A review of employee manuals, procedures, non-compete language and other documents can be an essential step in laying the groundwork for a smooth business launch and operational success.

In 2016, the Obama-era Department of Labor proposed changes to the Fair Labor Standards Act that, if enacted, would have made large numbers of employees newly eligible for overtime compensation.

Federal law, as of 2004, established that certain executive, administrative and professional employees are eligible for overtime compensation provided that they don’t make $23,600 or more annually. Twelve years later, the DOL recommended that the exemption amount be increased to $47,476.

The proposal precipitated angst among many employers and celebration among employees who anticipated a pay raise. Both reactions proved premature.

A number of states and pro-business organizations filed lawsuits challenging the proposal and asserting that it represented an overreach by the DOL. Ultimately, they prevailed and the proposed increase in the exemption amount went away.

Still, reports Thomas Hoffer, an attorney and partner at the Destin law firm of Matthews & Jones LLP, the abandoned proposal had effects still being felt.

“The proposal,” Hoffer said, “focused the attention of both employers and employees on wage-and-hour issues and we have seen a resurgence of claims in that area. Employers made changes in anticipation of enactment of the proposal and that further contributed to bringing wage-and-hour concerns to the forefront.”

Employers and employees found themselves dusting off handbooks and revisiting policies. And, changes like the one that the DOL proposed may properly lead an employer to seek clarification from an employment lawyer regarding how a policy change might affect him.

That contact is especially critical when businesses are being established, Hoffer said. A review of employee manuals, procedures, non-compete language and other documents can be an essential step in laying the groundwork for a smooth business launch and operational success.

“The idea, of course, is that an ounce of prevention is worth a pound of cure,” Hoffer stressed.

Businesses are well advised, too, to contact an employment lawyer whenever they are contacted by a regulatory agency or learn that an employee has contacted an agency such as the Equal Employment Opportunity Commission or an advocacy organization like the Southern Center for Human Rights.

“Many times, an employer will wait before contacting an attorney and try to navigate the process himself or herself,” Hoffer said. “They find themselves dealing with a cause determination or a lawsuit and they have already committed themselves to positions.”

Hoffer anticipates that due to the #metoo movement and the torrent of sexual harassment cases making headlines, changes with implications for employers may be forthcoming to Title VII of the Civil Rights Act of 1964. That federal law prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

Employees may wish to contact an attorney whenever they believe they may have been unlawfully slighted or aggrieved.

“In some cases, there may have been an actionable offense,” Hoffer said. “But there is a lot of misinformation out there and people may not understand that, in an employer-friendly state like Florida, the causes of action are relatively limited.”

Hoffer is prepared to counsel employers on preventive actions they can take to diminish the likelihood of employment-related claims being filed against them, and to mitigate the exposure where mistakes have been made.

“But you can’t take proactive steps after the fact,” Hoffer stressed. “You can’t go and draw up these things after someone has complained and expect it to do any good.”