Top Takeaways: 2024 Miami Labor & Employment Law Update “Marching Back to the Future”

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Thank you to all who attended our Labor and Employment Law Update as we shared our insights on a broad range of topics. It was a pleasure to see so many familiar faces, including friends and valued clients. We hope you found the seminar both educational and entertaining, as we certainly enjoyed having you with us. If you have questions regarding any of our presentations, please do not hesitate to contact any of the presenters.

As we look ahead, we are excited to let you know that we’ll be hosting a full-day seminar in May 2025. We’ll be sure to keep you informed with more details as we get closer to the date, and we’d love to see you there!

Please contact us if you would like additional copies of our recently published 2024 Pocket Guide to Florida Employment Laws or if you did not receive HRCI, SHRM, and CLE credit information.

If you were unable to attend or would like a quick refresher, below are the top takeaways from each session:

Independent Contractors and Joint Employers | Ingrid Ponce & Andrew McLaughlin

• New DOL rule on independent contractors adopts the “economic realities” test for determining whether an individual has been properly classified as an independent contractor.  This 6 factor test looks at:
  • Opportunity for profit or loss depending on managerial skill;
  • Investments by the worker and the potential employer;
  • Degree of permanence of the work relationship;
  • Nature and degree of control;
  • Extent to which the work performed is an integral part of the potential employer’s business; and
  • Skill and initiative.
• No one factor is dispositive. The DOL will look at the totality of the circumstances.  
• Misclassification can have serious consequences for any company that go well beyond whether the individual is entitled to minimum wage/overtime pay. 
• There are different tests to determine whether an individual can be classified as an independent contractor for employment, tax purposes and state worker’s compensation coverage.  It is important to review the classification decision under these other tests to ensure the classification can be justified.   
• Joint employer issues are also becoming more prevalent. If your company uses staffing companies, make sure your agreement with the staffing agency addresses joint employer issues.

No Union? The NLRB Doesn’t Care! | Paul Crucet

• Seek legal counsel to assist with reviewing and revising handbooks and other employee policies and agreements to ensure compliance with the NLRA
• Seek legal counsel before firing or disciplining employees for:
  • Complaining about pay
  • Complaining about working conditions
  • Walking off the job
  • Being disrespectful or disparaging towards the company or co-workers

Writs of Garnishment | Bob Turk

• When receiving a writ for a current employee, advise the employee of the writ.
• Answer the writ within 20 days or obtain an extension of time to respond.
• Failure to respond may cause the employer to have to pay the employee’s debt in the amount reflected in the writ.
• Do not turn any money over to the Garnishor (the person seeking money) until a court order is received with pay instructions.

The Pregnant Workers Fairness Act | Lisa Berg

• Generally, the Pregnant Workers Fairness Act (“PWFA”) requires a covered entity to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.
• The EEOC issued Final Regulations that became effective June 18, 2024 and which provide guidance for employers on how to interpret the PWFA.
• Unlike the FMLA, there is no length of employment or minimum hour requirement to be eligible to request an accommodation.
• A “known” limitation is one that is communicated to the employer by the employee/applicant or their representative, or of which the employer should be aware given the circumstances. 
• A “limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
  • A “physical or mental condition” is:
    • An impediment or problem that may be modest, minor, and/or episodic (e.g., morning sickness)
    • A need or a problem related to maintaining the employee’s health or the health of the pregnancy (e.g., taking breaks, avoiding chemicals); or
    • Seeking health care related to pregnancy, childbirth, or related medical condition.    
    • An employee’s restrictions do not need to rise to the level of a disability under the ADA.
• An employee/applicant must be “qualified” under the PWFA, meaning that “with or without reasonable accommodation, can perform the essential functions of the employment position.”  An employee who cannot do one or more essential job functions will still be considered “qualified” if: (i) any inability to perform an essential function(s) is for a temporary period; (ii) the essential function(s) could be performed in the near future; and (iii) the inability to perform the essential function(s) can be reasonably accommodated.
• Covered employers must engage in the interactive process promptly with the employee and cannot impose any accommodation that has not been reached via the interactive process.
• Unlike the ADA, covered employers must be careful about asking for documentation under the PWFA. According to the EEOC, documentation is not generally required when:
  • The limitation and need for a reasonable accommodation is obvious and employee provides self-confirmation
  • The employer already has sufficient information to support a known limitation related to pregnancy and employee provides self-confirmation
  • The request is for one of the four identified reasonable accommodations (additional restroom breaks, eat or drink as needed, having water readily available, and sitting or standing as needed)
  • The request is for a lactation accommodation & employee provides self-confirmation
  • The employer’s policies or practices don’t require documentation when employees without known limitations seek a reasonable accommodation
• Employer may seek documentation when reasonable, and documentation itself must be reasonable, meaning the minimum that is sufficient to:
  • Confirm the physical or mental condition;
  • Confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
  • Describe the adjustment or change at work that is needed due to the limitation.
• Employer cannot force an employee to take leave, even if it’s paid leave, if a reasonable accommodation exists that enables the employee to continue working.
• Like most employment laws, the PWFA has a “no retaliation” provision.
• Best practices:
  • Create PWFA policy or revise existing policy
  • Train supervisors and HR staff (PWFA is much broader than the ADA and differs in several different respects)
  • Don’t use your ADA and FMLA forms when administering accommodations under the PWFA
  • Consult with experienced employment counsel before denying employee/applicant reasonable accommodation request or taking any adverse action against a worker who has requested such an accommodation

Going Into Overtime | Bob Turk & Stephanie Turk

• The Fair Labor Standards Act (FLSA) – Highlighting changes to the salary test for exempt employees under federal overtime laws only
• Exempt employees include executive, administrative, and professional employees (EAPs). The two-part test to determine exemption:  1) salary test and 2) job duties test.
• On July 30, 2024, the salary test for EAPs increased from $684 per week to $844 per week. On January 1, 2025, the salary threshold for EAPs will increase from $844 per week to $1,128 per week.
• The DOL also includes a Highly Compensated Employee (HCE) exemption test with relaxed job standards. That threshold salary amount increased on July 1, 2024, from $107,432 per year to $132,964 per year (can be comprised of a lower base payment with bonuses and incentives to be added at the end of the year).
• The HCE salary will increase on January 1, 2025 from $132,964 per year to $151,164 per year.
• The salary test is scheduled to increase again on July 1, 2027, but we do not yet know the amount(s).
• Before the January 1, 2025 increases, employers should assess operations now to determine whether any changes need to be made in salary and job duties for exempt employees.
• There is pending litigation on these increases, so keep your eyes and ears open for any changes to the existing regulations.

Andy’s Corner – Employee Benefits | Andrew McLaughlin

• When is the last time you tuned up your benefits plans? A few simple steps now can prevent problems later and make your plans easier to administer now. We recommend the following items:
  • When is the last time you confirmed that everyone on your health plan is eligible for the plan? Ineligible participants can pose issues under the law or with your insurance carriers (including stop-loss carriers for self-insured plans).
  • Do you have small balances in your 401(k) plan from former employees that should have been cashed out? The small balances can create a variety of issues. They may trigger audit requirements or other added administrative burdens. It also may be very difficult to track down the owners of these small balances if you wait years to make the distributions.
  • Do you have recent beneficiary elections for all of your employees? Employees undergo many life events such as marriage and divorce that may affect the distribution of account balances. Having recent elections limits the risk of arguments over the account if a participant passes away.
  • When is the last time you reviewed your contracts with your various vendors for your benefits plans? Do these contracts have up to date provisions protecting the data and assets belonging to the company and its employees? (Hint: if the contract references facsimile machines, it may need updating).
  • When is the last time you updated the terms of your formal plan documents? There have been lots of new laws affecting plans including new rules for required minimum distributions, new distribution options, and requirements that long-term part-time employees be permitted to participate in 401(k) plans. Have your written policies been updated to match any changes you have made to your plan’s operations?

OK Boomers! | Bob Turk, Stephanie Turk, Ingrid Ponce & Jaclyn Sanchez

• Each generation, from Baby Boomers to Gen Alpha, has distinct values, communication styles, and attitudes toward authority, shaped by culture and technology. For example, Baby Boomers value hierarchy and face-to-face interaction, while Gen Z and Alpha prefer quick communication and real-time feedback, often through digital platforms.
• Managing a multigenerational workforce presents challenges like experience, mentorship, work styles, resistance to technology, and varying preferences for work-life balance and flexibility. Understanding and addressing these challenges is imperative to fostering a healthy work environment where all generations can successfully coexist.
• One leadership or management style does not work for all generations. Managers need to adapt to the different values and preferences of each generation. For example, Baby Boomers prefer top-down management and clear chains of command, while Gen X values more independence. Millennials and Gen Z thrive under collaborative, coaching-style leadership that values their input and offers frequent feedback.
• As AI and advanced technology become integral to the workplace, expect an increased use of AI tools and growing reliance on digital platforms in the workforce. It’s important to consider how these changes impact your workforce and whether your policies need to change to adapt to advances in AI. 

DISCLAIMER: The information provided in this blog post does not, and is not intended to constitute legal advice; it is for general informational purposes only.