Tag Archives: Florida

“The Customer is Always Right” Results in Liability for Employer

Contributed by Suzanne Newcomb

We have all heard the mantra “the customer is always right,” but what is an employer to do when a customer’s request conflicts with an anti-discrimination law? As a Florida security firm learned last week, an employment decision that is based on disability violates the Americans with Disabilities Act (ADA) even if the decision is made in direct response to a specific customer complaint. Alberto Tarud-Saieh lost his right arm in a car accident. Later, he was hired by Florida Commercial Security Services as a security guard and assigned to provide security services for a community association.

Although Tarud-Saieh was qualified and fully licensed for his position, the president of the community association complained immediately, stating, “The company is a joke. You sent me a one-armed security guard.” In an effort to appease its customer, the security company removed Tarud-Saieh from his post. The EEOC brought suit on Tarud-Saieh’s behalf and on October 23, 2014, a jury found the company guilty of violating the ADA and awarded Tarud-Saieh nearly $36,000 in lost wages; a rather hefty sum considering Tarud-Saieh earned only eight dollars an hour. So hefty in fact that local news reports quote the owner of the company stating the lawsuit will put his company out of business. In 2010 the Seventh Circuit Court of Appeals addressed the issue of customer preferences in the context of a nursing home resident who preferred to be cared for by white nursing assistants stating unequivocally, “a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employee’s differently based on race.” Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 913. Courts allow only a very limited exception for gender preferences in a health-care setting in order to accommodate patients’ privacy concerns.

The bottom line: An employment decision that is based on a protected characteristic, i.e., race, gender, national origin, religion, disability or age, is unlawful even if it is prompted by a specific customer request or complaint.

Pregnancy? Parental Leave? Social Media? Data Breaches? Your State Employment Law Update

Contributed by Heather Bailey

Florida: After much debate in the lower courts, it is settled – employers may not discriminate against pregnant workers in FLA (you couldn’t before under Federal law, but FLA confirms the same).

Iowa:  If you have to notify at least 500 state residents including your employees and applicants of any potential personal information security breach, you must also notify the Iowa Attorney General’s Office of the same.

Maryland: Do you have between 15 – 49 employees?  If so, beginning October 1, 2014, you must provide similar FMLA leave of up to 6 unpaid weeks for parental leave for the birth of a child or adoption and foster care situations.

Minnesota: Beginning August 1, 2014, you must add in your Employee Handbooks a notice that employers are not allowed to retaliate against employees for requesting or receiving reasonable accommodations related to pregnancy or child birth (which took effect on May 12, 2014 requiring employers to give such reasonable accommodations).   Also effective on this same date, employers cannot prohibit or have a policy or practice prohibiting employees from discussing their wages.

MissouriThe pending Right to Work bill died in the house before getting to the senate.  Additionally, in a 5-2 decision, the Missouri Supreme Court said that you only need to use the “contributing factor” standard in a workers’ compensation retaliation claim.  This reversed 30+ years of MO courts requiring “exclusive causation.”

Tennessee:  Beginning July 1 this year, Tennessee went pro-management this time.  Managerial and supervisory employees will now be shielded from individual liability under the Tennessee Human Rights Act for discrimination claims.  Moreover, employees will now have to show their protected activity was the sole reason for their discharge as opposed to it being just one of the reasons in order to sustain a retaliatory discharge claim.  Tennessee now allows employers to prohibit those employees with handgun permits from storing or transporting firearms or ammunition in company vehicles.

West Virginia: Your minimum wage increases on January 1, 2015 to $8.00 an hour and to $8.75 per hour as of January 1, 2016.

Wisconsin:  Getting on the band wagon, WI employers are now prohibited from requiring applicants or employees to give their personal login information for their personal social media sites or require the company’s monitoring of the sites as a condition of them to remain employed.  Moreover, good news for employers is that you no longer need to keep track of a salaried employee’s hours worked for those who are exempt from overtime.

A LOT Is Happening In Your State Employment Laws!

Contributed by Heather Bailey

ArizonaMinimum wage raises to $7.90 per hour on January 1, 2014.

CaliforniaEffective January 1, 2014, employers may no longer ask applicants or employees about any sealed conviction records, unless they get the individual’s consent first to use. Generally, it is best to stay away from any such sealed records when making any employment determinations.  Also effective this same date, employers may not discriminate against veterans or those with a military status.

Moreover, computer software employees are now exempt from overtime if they make at least $40.38 per hour and their annual salary is at least $84,130.53.  As always, you want to make sure these employees are also considered exempt under the FLSA as well.  If they are not, then they remain non-exempt.

Minimum wage = $9.00 per hour effective July 1, 2014 and $10 effective January 1, 2016.

ColoradoLooks as if Minimum Wage Order 30 will be approved, raising minimum wage to $8.00 per hour and to $4.98 for tipped employees effective January 1, 2014.  Stay tuned.

FloridaMinimum wage is increased to $7.93 per hour and $4.91 for tipped employees on January 1, 2014.

Illinois:  Effective January 1, 2014, medical marijuana becomes legal for certain uses – but as employers, you don’t necessarily have to accommodate employees for this use.

Montana:  Minimum wage = $7.90 starting January 1, 2014.

New Jersey:  As of October 21, NJ now recognizes the marital status of those employees and applicants who have entered into same-sex marriages.  Also, it is pretty much a done deal that minimum wage is going to $8.25 per hour effective January 1, 2014, with yearly cost-of-living increases, once the unofficial election votes are made official.

New YorkHaving payroll problems with paying employees too much and want to recoup that money?  In NY, you can do so now.  These regulations have changed for reimbursement and should be consulted when making such pay back deductions.

OhioOH’s minimum wage reaches $7.95 per hour and $3.98 for tipped employees on January 1, 2014.

OregonEmployees’ and applicants’ marital status of same-sex marriages from other jurisdictions will now be recognized effective October 16.

Rhode IslandEffective July 15, 2014, employers can no longer be liable to employees or applicants for civil damages, demands or claims when the employer relies upon a criminal background check when making an employment decision based upon a conviction.

VermontVT’s minimum wage is going to $8.73 per hour and $4.23 for tipped employees on January 1 2014.

Washington:  Minimum wage increase to $9.32 an hour as of January 1, 2014 as well.

Multi-State Employers: Do These New State Laws Pertain To You?

Contributed by Heather Bailey

Arizona Min. WageBe sure you’ve increased minimum wage to $7.80.

California Criminal Background Checks:  Effective January 1, 2013, if you perform background checks by obtaining state criminal history information, you must start giving applicants  a copy of their state summary criminal history information – promptly – if this information played a part in any adverse action like not hiring them for the job.

Florida Min. Wage:  Minimum wage now equals $7.79 per hour.

Georgia Criminal Records:  In July, arrest and criminal records access is going to change. For example, access will no longer be for any arrest and employers must supply either fingerprints or detailed information regarding the individual, such as full name, address, Social Security number, race, sex, and date of birth, which is accompanied by a signed consent on a form approved by the Georgia Bureau of Investigation’s Crime Information Center.

Illinois Workplace Violence Initiative:  The Illinois Chamber of Commerce is actively working on legislation that will give employers an avenue to get temporary restraining orders when persons cause threat of violence in the workplace.   Stay tuned for this much needed legislation!

Michigan Employee Private Social Media:  In December 2012, Michigan joined the bandwagon of prohibiting employers from requiring employees and applicants to give up their social media logins and passwords and from taking adverse action against them should they not comply with the request.  Effective March 28, 2013, Michigan will become one of our nation’s right to work states.  So, generally, employers cannot require employees to join or remain a member of a union.  Finally, you may now be able to collect a minimal administrative fee (i.e., $1-$2) for child support garnishments each time a deduction is made.

Missouri Min. Wage:  Minimum wage is raised to $7.35 an hour – be sure you’ve made this increase!

New Jersey Posting Requirements:  If you have 50 or more employees, there are new notice and posting requirements in place from the New Jersey Department of Labor and Workforce Development and Department of Law and Public Safety’s Division on Civil Rights for gender equality in the workforce and anti-discrimination.

Vermont Min. Wage: Your minimum wage went up too – $8.60 per hour.

State laws change every day.  Make sure you are aware of them all for the states in which you have employees!