Ask Bob
Robert Turk, Esq. of Stearns Weaver Miller can answer questions asked by members. The past questions and answers
will be archived for reference. If you have a question for Bob, please
submit it via our Contact Us
page.
Please remember - the information provided is general in
nature and not legal advice and should not be construed or relied on as
legal advice. Legal advice may be given only based on specific facts.
June, 2011
Question: We have an hourly employee who works more than
35 hours per week. We also have more than 10 employees in Miami-Dade
County. This employee has been requested to serve on jury duty.
Are we required to pay the employee at the same hourly rate of pay (or
can we pay less per hour for jury duty)? How many hours per week do we
pay the employee?
Answer: Miami-Dade County has an ordinance which
requires that employers, with more than 10 employees, continue to pay
the wages of its employees who are called for jury duty. The employee
must regularly work 35 hours or more per week and give the employer at
least 5 working days notice of the need to serve on jury duty. See:
Miami-Dade
County Ordinance - Payment for Jurors. Unlike Broward County, which only requires up to five days of pay,
Miami-Dade County requires pay for the entire duration of jury service.
The employer may deduct the amount the employee receives each day from
the court for jury service from the pay to be given the employee.
However, the employee should be paid their normal base hourly of pay.
Lost commissions are not required to be paid. However, the hourly base
rate of pay is to be paid. Although tips are not addressed, the better
argument is that tips need not be paid.
In addition, the employee should be paid the normal number of hours the
employee normally works each day. If the employee s work hours fluctuate
daily or weekly, the employer should take an average and agree with the
employee that such will be the number of hours the employee will be paid
during jury service.
November, 2010
Question: Is there any violation of wage and hour laws
or DOL regulations if we have an exempt manager who wishes to work in
our events department as a bartender outside his normal work schedule?
The extra work would be approximately 10 hours per week. We would pay
him additional compensation.
Answer: An exempt employee’s primary job must be his or her
exempt duties. An exempt employee is allowed to do non-exempt work, but
it should be limited so that there is no claim that the non-exempt
duties predominate over the exempt duties. If the non-exempt work is
kept to roughly 10 hours per week, an exempt employee can do non-exempt
work for extra pay without losing the executive exemption.
August, 2010
Question: If we want to pay an hourly employee a bonus as an incentive for helping out in the absence of a department head, can we pay it as flat amount or do we have to calculate the total dollar amount as overtime?
Answer: If the employee is told upfront she is entitled
to a bonus for doing extra work, this amount needs to be included in the
employee’s rate of pay for the workweeks the bonus covers and overtime
must be paid. If the employee is not advised she is going to get a bonus
but the Employer decides at the conclusion of the work to pay some
amount as a bonus, in its discretion, the bonus is not included in any
overtime calculation. The Employer must retain the discretion both over
the availability of the bonus and the amount to paid . The Employer
cannot determine a bonus until at or near the end of the work and the
employee can have no expectation of receiving a bonus. If so, the bonus
can be excluded from overtime.
July 2009
QUESTION: We are interested in bringing an H1
Visa participant (CHEF) for our
upcoming season. We understand that with the way the economy is we
should
be recruiting local rather that sponsoring an international participant.
What is your advise regarding this matter?
ANSWER: This is purely a business decision. Each
hotel should first determine its staffing needs and then compute the
cost of hiring a staff member on a work-related visa. Hotel HR must
discuss with immigration counsel all costs that need to be incurred to
both hire and fire an employee on a work visa. This includes legal fees
and recruiting costs. HR must also determine if it is going to provide
housing and review its obligations if it does so. Once those costs are
established, the Hotel can make a more informed choice about whether to
employ domestically or pursue candidates with work visas.
June 2009
QUESTION: The new federal minimum wage is
going up this July 24, 2009 to $7.25; do we have to bring the tipped
employees pay up as well (Right now our hotel is paying $4.19 per hour
and taking a $3.02 tip credit for each hour worked)?
ANSWER: Florida’s Constitution requires that the
tip credit in Florida be no more than it was in 2003 ($3.02 per hour).
Although the Florida's minimum wage ($7.21) is not going up on July 24,
2009, the federal minimum wage is increasing on that date. It is going
to hopscotch over Florida’s $7.21 by 4 cents to $7.25. Federal law will
allow employers in those states that do not restrict the tip credit to
pay a minimum of $2.13 per hour with a tip credit of $5.12 starting on
July 24.
However, Since Florida has restricted the tip credit, Florida employers
should follow Florida’s more restrictive tip credit. This means the
minimum direct wages a Florida employer would have to pay to a tipped
employee starting July 24, 2009 is $7.25 (minimum wage)- $3.02 (the tip
credit) = $4.23 per hour. If an employee’s tips combined with the
employer’s direct wages do not equal the minimum wage the employer must
make up the difference.
For hours worked beyond 40 in a workweek, for tipped employees, Florida
employers must pay time and one half of at least $7.25 ($10.88) minus
the $3.02 tip credit = $7.86 per hour.
September 2008
QUESTION: Our Hotel wants to prohibit smoking not just in our building but anywhere in the property, including the outdoors. Will Florida law prohibit the Hotel from denying employees the right to smoke outside even on their break time?ANSWER: No. The Hotel can prohibit employees from smoking outside even if employees are on their break time. The "No Smoking Policy" should be in writing and clear so that employees cannot argue about what they can and cannot do on their break time.
~~~~~~~~~~~~~~~
QUESTION: In discussing the Age Discrimination in Employment Act, we know that we cannot treat employees ages 40 and older differently at our Hotel because of their age. However, can we discriminate against applicants or employees for being "too young" to get a job or promotion?ANSWER: The federal ADEA applies only to applicants in employees 40 years and older. However, Florida Civil Rights Act prohibits discrimination based on "age" without any restrictions. The Florida law has been interpreted as applying to applicants and employees 18 years and older. As such, the federal law would not apply to a "too young" claim, but Florida law may certainly do so. As a result, applicants and employees should not be told that they are "too young" to fill a position so long as they are qualified for the job and are 18 years of age or older.
August 2008
QUESTION: We have an hourly employee who would like
to work additional hours to earn extra money. However, we do not want to
pay overtime. We do have extra work the employee can do in a completely
different department.
Is there an FLSA exemption or contract the employee can sign so that we
will not have to pay overtime?
ANSWER: No.
All hours that a non-exempt employee works in a workweek must be added
together. If the total is over 40 hours during a workweek, then the
employee must be paid overtime. The Department of Labor allows employers
to add together the employee’s total weekly earnings and then divide
that amount by the total hours worked to obtain the regular rate of pay.
The rate is for all hours worked. So, only an additional half-time needs
to be paid for every hour worked over 40 hours in that workweek.
In addition, the employer and employee may agree that the last job
worked will be the hourly rate used to pay overtime.
Do Not Forget: The regular rate may be affected if an employee works
extra hours as a tipped employee or an employee receiving a commission
or service charge. Calculating overtime on these positions can be tricky
so legal counsel should be consulted.
~~~~~~~~~~~~~~~
QUESTION: We have an exempt Assistant Manager that
will be going on maternity leave soon and taking FMLA. While she is on
leave, we are planning to eliminate her position. We would likely
downgrade her position so that an hourly employee can perform parts of
the job.
If we do not have a similar position at the Hotel for the returning
employee, what does the FMLA require?
ANSWER: The FMLA allows your Hotel to eliminate a
position for economic reasons. The FMLA would then allow the Hotel to
terminate the employee if the position has been eliminated. However, if
the position is eliminated for legitimate economic reasons, the Hotel
should make all reasonable efforts to find comparable or even lesser
employment to offer the employee. The burden of proof is on the Hotel to
demonstrate that the adverse employment action was not as a result of
the employee’s pregnancy or FMLA leave. As a consequence, the Hotel must
carefully review its decision and options to ensure that the Hotel is
not retaliating against the employee for taking FMLA leave.
SEPTEMBER 2006
Question: When does Florida's minimum wage change and how much do you expect it
to increase?
Answer: Florida will change its minimum wage from $6.40 per hour on January
1, 2007. Florida's Agency for Workforce Innovation will use the Consumer
Price Index for Urban Wage Earners and Clerical Workers for the South
Region (CPI).
The adjustment will be based upon the change in the CPI from September
1, 2005 to September 1, 2006.
The Agency and Florida's Department of Revenue will publish the minimum
wage that will go into effect by October 15, 2006. My guesstimate only
is an increase between 25 and 30 cents per hour. Anyone want to take a
bet it increases by 28 cents per hour? Let's see how I do.
August 2006
Question: Florida law, Section 448.05 is entitled Seats to be
furnished employees in stores-does this law apply to a hotel (e.g. front
desk clerk) and does it say that employees must be allowed to sit at
work and if we don't do so, does our hotel commit a crime?
Answer: Although the statute's title refers to "employees in stores," the
text of the statute applies to a broader group of employees. I believe
the law does cover hotel front desk clerks, cashiers, sales clerks, and
others at the hotel who are required to stand for long periods as part
of their job duties. The law was originally passed in 1899 and has
criminal penalties. However, there is no case law interpreting the
statute.
Section 448.05 requires that the affected employees have access to
chairs or other seating during their meal period and break time, if any
during their shift or when their job does not require them to stand; the
statute does not require the hotel to provide a seat for these employees
to use during their work time when standing is required.
The hotel could be required to provide a seat for a clerk to use during
work time, however, if the front desk clerk at issue has a disability
and requests a seat as a reasonable accommodation under the ADA or
Florida Civil Rights Act, or as part of a light duty assignment when an
employee has a workers compensation injury requiring sitting.
June 2006
Question: Can we force employees to work overtime?
Answer: The federal wage and hour laws do not prohibit requiring employees to
work overtime. Those laws only require that an employee be paid time and
a half their regular rate of pay for hours worked beyond 40 in a
workweek. As a result, an employer may "force" employees to work
overtime and may discharge an employee who refuses.
An employer must carefully consider its actions, however, when requiring
overtime of employees who have not traditionally worked such extra
hours. An employer should give the employee sufficient advance notice so
that he or she may arrange personal matters (e.g., child care,
vacations). An employer may also consider first asking for volunteers
before requiring overtime.
There may be one exception to this rule: Employees who have a disability
that may be aggravated by working extra hours may claim that limiting
their work to their regular working hours constitutes a reasonable
accommodation.
~~~~~~~~~~~~~~~
POLYGRAPH
Question: We had a theft in our hotel and I believe that one of our employees
may be the culprit. Can I force my employees to submit to a polygraph
test to ferret out the culprit?
Answer: Generally the Employee Polygraph Protection Act ("EPPA") prohibits
private sector employers from even suggesting that an employee submit to
a lie detector test. In some circumstances, however, an employer
involved in an ongoing investigation of a criminal act which resulted in
"economic injury" to the employer may be exempt from the EPPA
limitations.
Even so, the EPPA prohibits an employer from requiring the test as a
condition of employment. Further, the employer may not discharge,
discipline or otherwise discriminate against the employee based solely
on the result of the polygraph test or the employee’s refusal to take
the test.
Even where an employer may test, many procedural requirements must be
followed. For example, the employer must provide the employee with
written notice of:
1 The date, time and location of the test;
2 His or her right to obtain and consult with legal counsel or another
representative before each phase of the test; and
3 The characteristics of the test and what types of instruments may be
used, as well as whether the test can be observed or recorded.
Furthermore, the employee must sign a statement which discloses that:
4 The test cannot be required as a condition of continued employment;
5 Statements made during the test may constitute evidence against the
employee; and
6 The employee has legal rights if the test is not conducted in
compliance with the EPPA.
An employee may not be asked any questions regarding sexual behavior,
race, religion, politics or union activity. In addition, an employee may
not be asked questions in an overly degrading or intrusive manner and
has the right to terminate the test at any time.
I strongly recommend that you consult with legal counsel before
submitting your employees to any kind of lie detector test.