Presentation on theme: "Florida Association of Property Appraisers 2013 Executive Leadership Conference Michael K. Grogan, Esq. Kort Parde, Esq. Allen, Norton & Blue, P.A. October."— Presentation transcript:
Florida Association of Property Appraisers 2013 Executive Leadership Conference Michael K. Grogan, Esq. Kort Parde, Esq. Allen, Norton & Blue, P.A. October 29, 2013
Appearance of Impropriety – Ethics Hiring Confidential Information - Embarrassing Public Records Employment Application Over-worked and Underpaid Pay and Overtime - I-9 Form Risky Management Confidential and Exempt Records Stale Policies Good Practice and Policies Recent Issues E-cigarettes and No Smoking
Michael K. Grogan is the managing partner in the Jacksonville Office of Allen, Norton and Blue, P.A. Mike has been practicing law over 35 years and is a member of the Florida, Georgia and Federal Bar Associations. He received his BS from MacMurray College and his JD from Mercer University where he served as Managing Editor of The Mercer Law Review. Mike is listed as “AV” by Martindale-Hubbell. Mike has served as Co-Chair for Florida Public Employment Labor Relations Forum for over 25 years. For over 20 years Mike has been listed as a Florida Super Lawyer in the area of Employment and Labor representing management. Mike is a past recipient of the Marsicano and Buchman Awards. Mike is certified by The Florida Bar as a Specialist in the areas of Labor and Employment Law and City, County and Local Government Law. Mike is a former Chair of the Local Government Section of The Florida Bar as well as charter member and Past-President of the Academy of Florida Management Attorneys. Mike has been doing workshops for FAPA and Florida Department of Revenue since 1985. Kort Parde is a senior associate in the law firm of Allen, Norton & Blue, with offices in Miami, Orlando, Tampa, Tallahassee and Jacksonville, Florida. Ms. Parde practices labor and employment law with a focus on representing governmental entities. Previously, Ms. Parde was a staff attorney with the State of Florida, Seventh Judicial Circuit, St. Johns County. Ms. Parde has been practicing law for 9 years. Ms. Parde is a graduate of the University of Tennessee, and the University of Tulsa, College Of Law, both with honors. She is a member of the Florida Bar. The firm has represented over 500 public sector clients throughout the State of Florida, including cities and colleges. Mike, Kort and the firm have represented over 30 property appraisers and 200 plus constitutional officers.
Recent Headlines: Overworked and Underpaid? Americans were pushed to their limit in the recession and its aftermater as they worked longer hours, often for the same or less pay, after businesses laid off almost 9 milliion employees. Now, many are striking back in court. Since the height of the recession in 2008, more workers across the nation have been suing employers under federal and state wage-and-hour laws. The number of lawsuits filed last year was up 32% vs. 2008, an increase that some experts partly attribute to a post-downturn austerity that pervaded the American workplace and artificially inflated U.S. productivity. Workers’ main grievance is that they had to put in more than 40 hours a week without overtime pay through various practices: They were forced to work off the clock. Their jobs were misclassified as exempt from overtime requirement. Because of their smart phones and other technology, work bled into their personal time. Source: “Overworked and underpaid?”, USA Today, April 16, 2012, page 1A.
The Wage & Hour Attack Department of Labor Investigations INS Investigations Fair Labor Standards Act Lawsuits §448.08, Florida Statute, Lawsuits
Common Wage & Hour Mistakes No Budget for Overtime No Overtime Ever Approved No Daily Record Keeping by Staff Hours Worked Misapplied Exemptions Overused - EAP Over Extension of 7(k) Exemption Collective Bargaining Agreement Does Not Control Overtime
Letter from the Department of Labor Notify Carrier Contact Investigator 1.Establish Friendly Rapport 2.Coordinate Investigation Dates Conduct Self Audit
Wage and Hour Investigation Conducted by the Department of Labor Initiated Usually by Complaint Investigator reviews: 1. I-9 2. FMLA 3. Garnishments 4. Fair Labor Standards Act
I-9: I-9s are required for all employees, including the constitutional officer I-9s must be completely filed out I-9s must be signed immediate upon employment I-9s must be accompanied by copies of supporting documentations
Wage & Hour Audit Family Medical Leave Act: 29 U.S.C. §2601, et seq. Review forms – 1. Employee Policies for FMLA and Military FMLA 2. Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH 380E) 3. Notice of Eligibility and Rights & Responsibilities (Form WH 381) 4. Designation Notice (Form WH 382) 5. Fitness for Duty Make sure FMLA posters are up to date and in a conspicuous location. Review files for the following information: 1. Who is currently out on FMLA leave? 2. Was anyone terminated for failing to return to work?
Wage & Hour Audit Garnishments: Consumer Credit Protection Act, 15 U.S.C. §1671 et seq. The law protects employees from discharge by their employers because their wages have been garnished for any one debt, and it limits the amount of an employee’s earnings that may be garnished in any one week. Defines ‘disposable earnings’ as the amount of earnings left after legally required deductions are made. Limitations on Garnishments 1.Generally, up to 25% of an employee’s disposable earnings may be garnished per pay period. 2.Exceptions a. Child support b. Federal and Florida taxes c. Bankruptcy
Wage & Hour Audit Fair Labor Standards Act 29 U.S.C. §201 et seq. 2 Concepts Is the employee subject to the overtime laws? Overtime for all hours worked in excess of 40 hours in one workweek?
Wage & Hour Audit Is the employee subject to the overtime laws? EAP… Executive Administrative Professional
Wage & Hour Audit Overtime for all hours worked in excess of 40 hours in one workweek? Government employees Permits the use of Compensatory Time with certain limitations. Sworn Law Enforcement Officers 7(k) Exemption from 40 hour workweek requirement to accommodate special needs of law enforcement. Permits up to a 28 day work week, with overtime occurring past 168 hours
Wage & Hour Audit Counting “Hours Worked”… Remember that as a general rule only those hours where an individual is actually restricted by obligations to work is that individual considered ‘working”. Therefore, vacation hours, sick leave, and just mere “reading an email” are not compensable hours worked. Only when the employee is required to check and respond to all emails, or is called to a location does an employee “go on the clock”.
Wage & Hour Lawsuits Under the FLSA, an employee (or former employee) may seek : back wages, plus an equal amount in damages, and attorney’s fees and costs, for a 2 year, but possibly 3 year, period preceding the lawsuit
Wage & Hour Lawsuits Florida law contains a statute for back wages. Section 448.08, Florida Statutes, permits suits for unpaid wages, where sucessful litigants may be awarded attorney’s fees and costs.
Best Practices Budget for Overtime Approve Overtime Require Staff Record and Verify Hours Monitor Hours Worked Conduct Internal Audit Review and Adjust Payroll Develop Early Warning System: Effective Risk Management