Contrary to popular belief, the Fair Labor Standards Act (“FLSA”), a federal law which sets the rules on the payment of wages and overtime, contains no requirements that breaks be given.  However, when an employer does offer breaks, the FLSA’s rules on compensation must be followed; otherwise there can be financial consequences.  Keep in mind, however, that the FLSA applies only to employees working in non-exempt, typically hourly, positions.

The general rules on the compensability of breaks and meal times are as follows:  Employees must be paid for breaks of 20 minutes or less, including smoking or coffee breaks.  “Bona fide meal periods,” which typically last 30 minutes or more, are not considered work time and therefore do not need to be paid.  The FLSA’s regulations define a “bona fide meal period” to be a meal break in which the employee is completely relieved from duty for the purpose of eating a regular meal.  Generally, 30 minutes or longer is sufficient, and there is no requirement that the employee be permitted to leave the premises.  However, a typical mistake made by employers is when the employee is given a 30 minute lunch period, but is required to answer the phones during this time period, or is required to perform other tasks while eating.  In such a scenario, the employee is not truly relieved from duty, which makes the lunch period compensable time.  Because this work time is now compensable, it must be included in the employee’s hours for the work week, which may result in the employee being entitled to overtime pay.  If overtime is not properly paid, the employee would have a claim against the employer for the unpaid overtime, liquidated damages (which is equal to the amount of unpaid overtime), and attorney’s fees and costs.

In sum, having a policy that clearly explains the company’s break and meal time rules is important in order to avoid confusion and ensure compliance with the FLSA.  The policy should clearly the type and length of breaks offered, and the consequences when employees do not follow the policy.

The ELR is a judicially created law which initially arose out of product liability cases where the only damages were economic losses, such as, inadequate value, cost of repairs and replacement of the defective product, without any claim for personal injury or damage to other property. Over the years, the ELR evolved to cover numerous factual situations, including where the parties were in contractual privity with another but one party seeks to recover damages in tort for matters arising out of the contract. In such cases, the courts have held that a tort action, such as negligence, is barred where there was a contract, with very limited exceptions.

The construction industry is one of the industries greatly affected by the application of the ELR. For example, in many construction defect matters, a homeowner, condominium association, or developer (the “owner”) will sue a general contractor for defective work, and in turn, the general contractor will sue its subcontractors. Prior to Tiara, Florida courts routinely applied the ELR to these scenarios and barred the owner/general contractors from suing its general contractors/subcontractors for negligence for purely economic losses resulting from a defective product or material installed in the construction project. The seminal case applying ELR to the construction industry was a Florida Supreme Court case, Casa Clara Condominium Ass’n, Inc. v. Charley Toppino and Sons, Inc., in 1993 which held that ELR barred a cause of action in tort for providing defective concrete (the product being the object of the contract) where there was no personal injury or damage to property other than to the product itself.

Now, with the advent of Tiara, the holding in Casa Clara no longer controls and parties in contractual privity, outside of the product liability setting, may sue for both breach of contract and in tort. Whether or not, Florida contract law has been undermined as a result of Tiara is yet to be seen; however, it goes without saying, owners, contractors and/or subcontractors may now have easier roads to recovery for damages that might have otherwise been precluded under contract law.

Instead of accepting responsibility for the harm caused, Martin Memorial Medical Center and the gynecologist, Dr. Mcnaney-Flint denied liability and maintained that Mrs. Moore’s perforation did not occur until after she was discharged from the hospital.

After a three week trial which concluded on March 18, a Martin County jury rejected the Defendants’ position finding the hospital 70% responsible for Mrs. Moore’s damages and the physician 30% responsible.  The award included just over $600,000 for past medical expenses, $370,000 in future medical care,  and non-economic damages of almost $2 million.

Gould Cooksey Fennell donated its legal services to the National Navy UDT-Seal Museum.

For more information on the Trident House click here or visit the National Navy UDT-Seal Museum website.

In general, an employer may establish a dress code which applies to all employees or employees with certain job categories.  A dress code policy should be in writing, clearly described and evenly enforced.  In most situations, banning tattoos and body piercings will not be a problem.  However, blanket bans and uneven enforcement can result in a serious problem, including a claim of religious discrimination.  For example, a Burger King restaurant was recently sued by the EEOC for terminating an employee with a very small tattoo of an Egyptian scripture which was important to the employee’s religion.  In another case, an employer was sued by a female employee who refused to wear uniform pants, because it violated the tenants of her Christian Pentecostal faith, which prohibited members from wearing clothing of the opposite sex.  The employee’s offer to wear a skirt of modest length was rejected and she was discharged.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment practices on the basis of religion.  Therefore, if a dress code policy conflicts with an employee’s religious practices, and the employee requests an accommodation, the employer must modify the dress code or permit an exception unless doing so would result in an undue hardship.  The courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients.  An employer’s desire to convey a professional and conservative appearance is not likely going to be deemed by the courts an undue hardship.

Employers should be careful about blanket enforcement of a dress code policy when confronted by an employee who asks for a modification or exception.  Unless the employee’s request would constitute an undue hardship, the accommodation should be made. Employers are urged to review their dress code policies to make sure they are not discriminatory, and managers should be trained to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious clothing article that may conflict with company policy.

FLSA litigation began to increase about ten years ago, has steadily increased ever since, and is not showing signs of slowing down.  In 2010, there was a 12% increase in wage and hour lawsuits.  In fiscal year 2011, the DOL collected $224,844,870 in back wages from employers all over the country, which represented the largest amount collected in a single fiscal year in the Department’s history.  In 2012, the DOL added 300 new field investigators—a staff increase of more than one-third—to investigate noncompliance on wage and hour issues.  The DOL says it intends to continue its beefed-up enforcement efforts in the coming years, targeting employers who: (1) fail to pay minimum wage or overtime; (2) misclassify employees as exempt under the FLSA; or (3) misclassify employees as independent contractors.

Employers should know that the DOL has the authority to audit employers at any time.  The most common reason for an audit, however, is an employee complaint.  If you receive notice of an audit, the following guidelines will assist you in the process, but should not be considered a substitute for legal representation:

1. The DOL may not provide you with much notice, but you are free to ask for extra time to gather documents.
2.  Call the auditor in advance to find out the purpose and scope of the audit.  You will want to know whether the audit concerns overtime pay compliance, minimum wage compliance, or some other reason.
3. Gather the relevant records in advance of the audit, if possible, and keep a log of everything you provide the auditor.  It is best to make two copies, one for the auditor and one for you.
4. Designate a company representative or legal counsel to work with the auditor.
5. Be courteous and cooperative with the auditor.  It is best to provide a private room for the auditor to work so as to minimize workplace interruption.
6. At the conclusion of the audit, ask for a summary or report of the audit.  If violations are found, you will need to resolve them promptly, so it will be helpful to know exactly what the auditor thinks you need to correct.  This report should be provided to your legal counsel, because sometimes the DOL finds violations that are not actual legal violations.

The best management practice is to be proactive and ensure that if you are audited, no violations will be found.  A proactive employer will have up-to-date job descriptions, understand the FLSA classification system, and keep accurate payroll records.

In conclusion, do not fall into the trap of thinking you are too small of a company to be audited.  All it takes is one employee complaint to have the DOL knocking on your door.

Recognize the underperformer

An underperforming employee can remain undetected for years, most often because co-workers and/or the supervisor do not want to confront the problem.  Furthermore, not all underperforming employees act the same.  Some underperformers use intimidation to detract from negative consequences, while others may hide their shortcomings by making false claims against co-workers.  Recognizing this person is the first step to dealing with the problem before it becomes a lawsuit.

Direct action and good documentation

Now that you have identified the underperformer, it is ritical that you implement a plan of direct action backed up by good documentation.  Many times when a client calls me for help dealing with an underperforming employee, I am told that the employee has been that way for years and there is no documentation of poor performance.  Employers who fail to deal with an underperforming employee risk alienating their good employees, who often have low morale because they are required to do the underperformer’s work, without any extra pay.

Direct action and good documentation will help avoid this from happening, or if the underperformer has remained unchecked for a long time, help correct the problem before it becomes a lawsuit.

First, consider a group meeting to air everyone’s grievances.  If the subject matter is private, conduct individual interviews.  Once you have gathered the information, you need to decide whether discipline should be issued based on violations of workplace policies.  If discipline is not necessary, you need to document the meeting and provide constructive feedback to your employees so they know what you expect from them going forward.

Second, it is important to re-set the underperforming employee’s focus.  A letter of clarification will suffice.  The letter may start by saying “the Company has advised you of shortcomings in your performance that must be corrected immediately if you are to remain an employee.”  It is important to clearly describe the shortcomings in the employee’s performance, and what the Company expects in order for the employee to meet expectations.  A time table should be given so that regular follow up can be initiated to make sure the plan stays on track.

By following these steps, you will have addressed the problem, the company’s concerns, and provided the underperforming employee with a clear means of how to become a productive employee.  If the underperforming employee corrects his/her behavior, then the potential problem has been averted.  However, if employee does not change his/her ways, the company will have good documentation to show that it tried to help the employee, and the employee will then have to take responsibility for their own actions.

In conclusion, confronting potential issues early and directly is always a good management practice, and can help avoid what could be a small matter today becoming a bigger problem tomorrow.