Presentation to the Bay County Chamber by Rob Jackson and Cole Davis about employment law in a town hall format.

1. Employment Law
Town Hall
DISCRIMINATION, ADA, INDEPENDENT
CONTRACTORS, & NON-COMPETES

2. Candidate Rob
DISCRIMINATION, ADA, INDEPENDENT
CONTRACTORS, & NON-COMPETES
Vote For Me! Why?

3. The VERY Basics
What is “Discrimination?”
Treating People or Things differently
Everyone Discriminates Everyday
Not a Dirty Word . . . . but

4. Discrimination
Certain Types of Discrimination are Illegal
Three Broad Groups based a Person’s:
Immutable Characteristics
Important Life or Legal Status
Communication
Policy reasons behind each one

5. Immutable Characteristics
Incapable or difficult of being changed
“Through no fault of their own”
Race, Sex, National Origin (Title VII)
Age (ADEA)
Disability (ADA)
Etc . .. Genes, sexual orientation,

6. Important Life or Legal Status
Religion (Title VII)
Marital Status (FCRA)
Pregnancy (PDA)
Military Service (USERRA)
Etc . . .nursing mothers,

7. Anti-Discrimination Tips
Be an Ferret, not an Ostrich
have good policies and reporting
Investigate promptly
Take complaints
Document, document document

8. Communication
Retaliation for Complaints
Almost all Civil Rights laws include a prohibition
Whistle-Blowers
Many Federal laws that save govt money (qui tam)
Florida adopted specific protections also (illegal activity, gross
mismanagment, misfeasance, malfeasance, fraud )

9. Major Discrimination Laws
Title VII of Civil Rights Act of 1964
Race, Sex, Religion, National Origin
Age Discrimination in Employment Act (ADEA)
Only older workers (over 40) not younger
American with Disabilities Act (ADA, ADAAA)
Florida Civil Rights Act (above, plus marriage)
Family Medical Leave Act (FMAA)

10. Major Discrimination Laws
Often Small Employers Exempt
Title VII, ADA - 15 or more
ADEA - 20 or more
FCRA - 15 or more
FMLA – 50 or more

11. Retaliation
All Discrimination Laws Prohibit Retaliation
Coverage Often More Expansive
Also, independent Whistle-blowers laws
In Florida, Cover Public & Private.
Certain Industries very vulnerable (health care)
Very Very Dangerous - Do NOT do this
Juries HATE retaliation

12. ADA and Disability
ADA Signed 1990 by George H.W. Bush
Title I - Employment
Title III - Public Accommodations
ADAAA passed in 2008 to correct some narrow court
interpretations of ADA

13. ADA and Disability
Covers All aspects of Employment
Retaliation
Association with Disabled
Medical Information and Exams
Interplay with Workers Comp and FMLA

14. ADA and Disability
Protections only for “Qualified Individual with a
Disability”
“Qualified” means:
Business qualifications for position, AND
Can perform essential functions of job
with or without a reasonable accommodation
Job Descriptions are Critical

15. ADA and Disability
“Disability” used to be important, but gutted by
ADAAA:
a physical or mental impairment, that substantially limits one or more major life
activities; or
a record of such an impairment, or
being regarded as having an impairment

16. Reasonable Accommodation
Central to ADA Claims and Analysis
Some examples in law:
1. physical accessibility
2. job restructuring, flex time; shift adjustments
3. modifying equipment, or procedures
4. providing qualified readers, interpreters and attendants

17. ADA Tips
“Battle of Reasonableness” - Chip-n-Dale
Who can outlast the other
Interactive Process, But Employer has Some control
Like a Mediation - everyone mad - worked.
EEs some, times righteous, impatient, will “disable”
themselves out of a job

18. Independent Contractors
Who is an Employee?
Often depends on who is asking.
IRS, Workers Comp, DOL, DOR . . .
Often depends on statute
Most use some elements of the traditional common
law test

19. Independent Contractors
Kindler, Gentler IRS, - now three broad categories:
Behavioral (Control):
Financial
Indications of Relationship
“There is no “magic” or set number of factors that “makes”
the worker an employee or an independent contractor,
and no one factor stands alone in making this
determination.”

20. Independent Contractors
Risks of a Misclassification
Back Taxes
Ineligibility for Program(s)
Lawsuits from EE’s

21. Non Competes
Common in certain industries (health care, IT, sales)
Generally enforceable in Florida if technically correct
Signed, writing, not assignable
reasonable in scope, time, and location.
Must have a legitimate business interest to protect –
balance the equities

22. Thank You
Questions and candidate forum upcoming

23. Candidate Cole
WORKERS’ COMPENSATION,
UNEMPLOYMENT, LITIGATION TIPS
Vote For Me! Why?

24. THE VERY BASICS
What is “Workers’ Comp?”
Essentially required insurance created and supervised
by the State.
Designed to “assure the quick and efficient delivery of
disability and medical benefits to injured workers.”
Self-Executing – Benefits provided in real time.

25. ACCIDENTS HAPPEN
“An unexpected or unusual event that happens suddenly”
Arising out of the course and scope of employment
Includes:
Aggravation or acceleration of a pre-existing condition
Includes mental injury if coupled with a physical injury.
Employee must report within 30 days.

26. MEDICAL BENEFITS
All medical treatment:
Medically Necessary
Work accident is more than 50% responsible for
injury and treatment needed.
Until worker is returned to pre-injury status (if ever)
or “MMI”.

27. INDEMNITY BENEFITS
Wages last by inability to work
Based on Average Weekly Wage
Calculation: Add the gross (pretax) earnings over the 91 days
before the injury (excluding the day of injury) and divide by
13.
Doesn’t always work out. Multiple alternate methods of
calculation.

28. INDEMNITY BENEFITS
Temporary Indemnity Benefits
Total: Claimant has a no-work restriction.
66.67% of the AWW.
Partial: Claimant has work restrictions but can work.
Reduced by amount of wages earned post-accident.
If no work available: Claimant gets 80% of 80% of the AWW.
Temporary Benefits are available for 260 weeks or until MMI

29. DEFENSES
Failure to Give NOTICE of the Workplace
Accident
Have policies in place requiring
IMMEDIATE reporting of any
accident and doctor checkup.
The Act provides that employees
have 30 DAYS within which to report
an accident.
Generally must be reported to a
supervisor.

30. DEFENSES
Inducement upon MISREPRESENTATION regarding prior
disability
Law bars any recovery if employee fails to disclose prior
injury to later injured body part.
Most common when employee leaves off known injury
in medical questionnaires.
Fine line between this and ADA violation.

31. WHAT DO I DO? ACCIDENTS
REPORT to the Insurance Carrier.
DOCUMENT the accident
Take your employee or have the employee taken to a DOCTOR
INVESTIGATE
Take a statement of Claimant
Take a statements of every person who witnessed the accident
Collect any evidence (physical items: ladders, forklifts, scaffolding)

32. WHAT DO I DO:
THE RETURN TO WORK
Once and Employee return to work after an injury, they should be treated as any other
employee.
Failure to show up for work due to injury
Failure to complete work as required
Follow standard office policies Title I – Employment
Common misconception that returning employee cannot be fired.
RETALIATION – must distinguish the cause for firing.
Apply policies uniformly

33. RATE HIKES
Two recent cases have hit employers hard
Attorney’s fees: Statutory formula struck down as only
means of payment for Claimant’s attorney.
Attorney’s can now seek an hourly fee
Temporary Benefits increased to 260 weeks from 104
Both decisions in Spring 2016 will increase costs of many
claims.

34. UNEMPLOYMENT COMPENSATION
Legal Scheme to provide financial assistance to employees out
of work
Through no fault of their own
Must be totally or partially unemployed
Must have earned at least $3,400 in the “base period”
Base Period: first four of the last five completed quarters
Does not include independent contractors

35. QUALIFICATION FOR BENEFITS
Claimant must:
File an Initial Claim via internet and follow further instructions.
Have worked and earned three times the current weekly benefit amount if the
claimant received benefits on a prior claim.
Be able and available for work, and actively seeking same.
Complete an only line initial skills review
Participate in Reemployment services, if required.
Serve a waiting week prior to any payment of benefits.

36. CAUSES FOR DISQUALIFICATION
Voluntary Quitting
Without Good Cause Attributable to the
Employer.

37. MISCONDUCT: THE BIG ONE
Irrespective of where it occurs:
Conduct demonstrating conscious disregard of an
employer's interests and found to be a deliberate violation or
disregard of the reasonable standards of behavior which the
employer expects of his or her employee.
Carelessness or negligence that shows wrongful intent and
substantial disregard for the employer’s interests.
Chronic absenteeism in violation of known policy.
Willful and deliberate violation of Florida regulation that
could sanction the employer.
Violation of known employer’s rule.

38. MISCONDUCT
Violation of Employer Rules:
Must be able to prove employee knew and understood the
rule.
Best practice:
Have employee sign list of work-place policies.
Counsel employee after violation to explain the expectations of the policy.
Document warnings for each violation of the same rule.

39. PROBATIONARY EMPLOYEES
Must have: A known 90-day Probationary Period
May discharge employee for unsatisfactory
performance within those 90 days.
Must inform employee of the probationary period
within 7 days of employment.
Still have to prove unsatisfactory performance but
lower standard than misconduct.

40. MORE DEFENSES
Employee refuses offer of work.
Fraud: Failure to report wages and/or work
Severance Pay
Incarceration

41. MECHANICS OF A CLAIM
Employee Files Claim with the Department of Economic Opportunity.
Employer may submit additional information after notification of the claim.
Additional information must be submitted no later than 20 DAYS
from the mailing date.
Additional information should include DETAILED information on
conditions of separation.
WITHOUT ADDITIONAL INFORMATION FROM EMPLOYER DEPT’S
DECISION IS BASED SOLEY ON EMPLOYEE’S VERSION OF EVENTS

42. MECHANICS OF A CLAIM
Department investigates (quickly).
Department makes initial determination on eligibility and begin
payment of benefits (if awarded).
20 DAY window to appeal.
Department will set a hearing before a referee to hear all evidence.

43. Thank You
Questions and candidate forum upcoming

44. Questions
We want to fire a lousy employee. Can we do it
immediately? Our policy has progressive
disciplinary steps prior to termination, do we have
to follow them?

45. Questions
If I have a pregnant worker with a lifting
restriction, do I have to accommodate her
even though her job requires certain lifting?

46. Questions
We just found out that one of our supervisors is
having a consensual sexual relationship with a
subordinate. What should we do?
P.S. - We also think that another supervisor is
having a relationship with a different subordinate’s
wife? Help!

47. Questions
If I let my employees take a work truck home
every night, would any accident they have in
the work truck be covered under workers'
comp?

48. Questions
I recently took over as OPs/HR of a small
construction company. The owner has been
classifying almost all of the workers as independent
contractors, despite the fact that we set the hours,
provide tools and vehicles, and are their only job. I
am worried about IRS liability. What can we do?

49. Questions
My company has always had a policy against
hiring convicted felons, surely that's ok right?

50. Questions
One of our employees walked into our professional
office with a gun strapped to his side,
unintentionally terrifying some co-workers. When
he realized it, he quickly stated that he forgot it was
there and locked it up in his car. We have a ”no
gun” policy at work. What can we do?

51. Questions
One of my employees posts about how much
she hates her job on Facebook and Snapchat
often, is this misconduct sufficient to fire her?

52. Questions
We have an employee on FMLA leave for breast
cancer treatment and recovery. While she was out
on leave, her supervisor discovered that she was
having employees falsify training records and work
off the clock. He wants to fire her. Can we do this?

53. Questions
A position we have is mostly manual labor but
requires employees take a certification exam,
an employee has asked that someone read
her the exam questions due to her dyslexia,
do I have to accommodate that?

54. Questions
One of our City employees refused to stand for the
pledge of allegiance at our public meeting last
week. He gave a TV interview afterwards and said it
was because of the oppression of people of color in
the U.S. After the interview, our mayor wants to fire
the employee for speaking to the press without
approval and bringing discredit to the City, both
against City policy. Can we do this?

55. Questions
We have a elementary teacher who has been out
on medical leave for a while. She has now been
cleared to work, but no more than 20 hours a week.
We don’t have any part-time elementary school
teachers. Do we have to accommodate her
request?

56. Questions
After the terror attacks in Paris, Orlando, and
San Bernardino, some employees are
concerned over working with a Muslim
employee. Can I change my Muslim
employee's position to one that doesn't work
with anyone else within the company?

57. Questions
We recently had an employee fail a drug test,
testing positive for THC. When confronted, he said
it was medical marijuana and he produced a
prescription from Dr. Chong. We are a federal
contractor and required to have a drug-free
workplace. What can we do?

58. Questions
I interviewed a candidate for a front-of-house
position who wears a head scarf. The
candidate didn't say that the scarf was
religious but I'm fairly certain that it is. The
head scarf doesn't fit the aesthetic of my
business. Can I not hire the candidate because
of her scarf even if I don't know for certain
that she wears it for religious reasons?

59. Questions
We just hired a fabulous new salesperson that
everyone loves. Last week, we got a letter from a
competitor saying that he had signed a non-
compete, that we were interfering with their
agreement, and that we should fire him
immediately. We had no idea about the
agreement. What should we do?

60. Questions
An injured worker was laid off while still
receiving total disability benefits. He is now
claiming unemployment, is he eligible?

61. Questions
One of our patients was violently robbed and
beaten by an African-American man. She is
suffering trauma and she “freaks” when African-
Americans are nearby. She has requested that no
African-Americans or dark sinned people be
allowed into her recovery room.
Can we do this?

62. Questions
What are the 3 biggest issues that employers
need to be concerned about right now?

63. Thank You
Hope you had fun and learned something
Don’t forget to to Vote!!!!