Applicants have reported receiving fraudulent letters and invoices sent on what appears to be official municipal letterhead, demanding payment of additional fees before their applications can be heard. These letters have looked highly convincing and, in some cases, directed recipients to wire funds to an unauthorized account. Unfortunately, some applicants have made substantial payments in response.

We strongly advise all municipalities to remain vigilant and remind applicants that any request for payment or documentation should always be verified directly with the municipality through official contact channels.

If your municipality becomes aware of similar correspondence or suspects fraudulent activity, please notify our office or law enforcement immediately.

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The court found that the CTA represented an unprecedented federal intrusion into areas traditionally managed by state governments and posed a threat to the anonymity historically afforded to corporate owners. Additionally, the Court found the Plaintiffs’ were likely to succeed in showing these constitutional violations and enforcement of the CTA compliance deadline would cause irreparable harm. The Court stayed the deadline to file a report under the Administrative Procedure Act (APA) § 705.

We are studying the decision and will monitor FinCEN’s response in the next days in order to advise clients on what to do regarding filing before the upcoming December 31st deadline. 

The full text of the decision is available here: Bloomberg Law

If you have any questions, please feel free to contact Emma Rodgers at erodgers@wsh-law.com.

The post Client Alert: Corporate Transparency Act Update appeared first on Weiss Serota Helfman Cole + Bierman.

On August 20, 2024, however, Judge Ada Brown of the U.S. District Court for the Northern District of Texas enjoined the implementation of the Noncompete Ban, meaning that it will no longer take effect on September 4, 2024 (or at any point thereafter, unless there is a successful appeal of Judge Brown’s ruling). In particular, Judge Brown found that the FTC lacked authority to issue substantive rules related to unfair methods of competition, which importantly includes the Noncompete Ban. This ruling returns employers to the status quo, allowing for enforcement of noncompete agreements according to current state-specific frameworks.

Should you have any inquiries or seek clarification on this matter, please do not hesitate to contact us.

The post Client Alert: Federal Court Blocks FTC Noncompete Ban From Taking Effect appeared first on Weiss Serota Helfman Cole + Bierman.

Here are the major takeaways:

White Collar Exemptions

• The standard salary level for the FLSA’s White Collar exemptions will increase from $684 per week to $844 per week (or $43,888 annually) on July 1, 2024.
• Six months later, on January 1, 2025, the standard salary level will increase to $1,128 per week (or $58,656 annually for a full-time worker).

HCE Exemption

The HCE total annual compensation level will increase from $107,432 per year to $132,964 per year on July 1, 2024, and then to $151,164 per year on January 1, 2025.

• Pursuant to the Rule, if an employee’s total annual compensation does not total at least $132,964 by the last pay period of the 52-week period, the employer can make up the difference by making a one-time payment to achieve the required level no later than the next pay period after the end of the year.
• Up to 10% of an employee’s salary amount may be satisfied by the payment of nondiscretionary bonuses, incentives, and commissions, that are paid annually or more frequently. 

Other Takeaways

• The salary thresholds will be updated every three years beginning July 1, 2027, based on current earnings data. The “current earnings data” is determined by “the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region (currently the South).”
• The Rule does not change any of the duties tests associated with the White Collar exemptions. 
• The Rule does not apply to exempt employees in the U.S. territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. 
• The salary thresholds do not affect any workers in named occupations who are not required to pass the salary requirements including: physicians, lawyers, teachers, academic administrative personnel, educational administrators, and outside sales workers. Accordingly, these employees’ exemption status remain unaffected by the Rule.  

In light of the Rule, employers will need to reevaluate their exempt employees and confirm these individuals will earn the new threshold amounts required by the Rule.  Employers should consider whether their existing exempt workers’ salaries require increases. Otherwise, these individuals will no longer be considered exempt employees and will be entitled to overtime pay. Due to the time associated with analyzing these issues, employers should immediately take the necessary steps to ensure compliance by July 1, 2024.  

The post Client Alert: DOL Issues Final Rule on Amendment to FLSA Exemptions appeared first on Weiss Serota Helfman Cole + Bierman.

On April 15, 2024, the EEOC published its Final Rule on the application and interpretation of the Pregnant Workers Fairness Act (“PWFA”). The Final Rule provides regulations and guidance for employers regarding the interpretation of the law, as well as enforcement guidance. The Final Rule was published in the Federal Register on April 19, 2024, and the regulations will go into effect 60 days thereafter.

Here are some major takeaways:

An employee’s word is (usually) enough. The regulations state that a limitation is “known” once an employee “communicates” the limitation to the employer. Therefore, automatically requesting proof of pregnancy (or childbirth/related conditions) is likely to be considered a violation of the law and possibly could lead to a retaliation claim.

“Pregnancy…and related medical conditions” includes a past pregnancy, fertility treatments, and the use of contraception. The regulations specifically state that “pregnancy, childbirth, and related medical conditions” include attempts at becoming pregnant and a miscarriage. Based on the intent of the law, employers should not limit the PWFA to only those employees who are pregnant or may have just delivered. The regulations list a number of non-exhaustive “conditions,” including post-partum depression, menstruation, and lactation.

The employee does not have to identify a medical condition or use medical terms. There is no need for the employee to specify a medical condition—they only need to state that they are pregnant, were pregnant, or are experiencing post-pregnancy issues.

Four automatically reasonable accommodations. The EEOC considers the following accommodations as reasonable in almost every situation:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee to take additional restroom breaks;
• Allowing an employee to sit and stand as needed; and
• Allowing an employee to take breaks to eat and drink.

Medical certification may only be requested when reasonable. The EEOC makes it clear that an employer may (but is not required) to seek medical documentation—but tread carefully. The medical documentation must be narrowly tailored and may only be used when the need for accommodation is not obvious and where the employee had not provided self-confirmation. Further, if the employee seeks an accommodation listed in point 4 (above), it would not be reasonable for the employer to ask for medical documentation.

Employers cannot force an employee to take leave. An employer may not force an employee to take leave (paid or unpaid) if another reasonable accommodation is available.

An unnecessary delay can result in a violation of the law. An employer may violate the PWFA if it takes too long to provide a reasonable accommodation. This means that if an employer requires medical documentation, it would be a best practice to provide the accommodation requested in the interim to avoid exposure to litigation.

The temporary removal of essential functions may be appropriate. As one of the EEOC’s recommended reasonable accommodations, the temporary removal of “essential functions” may be warranted. There are several factors to consider, but the fact the EEOC identifies this as a possible reasonable accommodation means that employers must be careful when determining that a certain accommodation is not reasonable in light of the essential functions of the position.

Overall, covered entities (public and private employers with 15 or more employees) must be very careful when evaluating an employee’s need for accommodations under the PWFA. The PWFA extends to conditions that may not be considered disabilities under the Americans with Disabilities Act, so employers must adjust when an employee expresses a need for an accommodation related to pregnancy, getting pregnant, or post-partum.

Should you have any questions about the Final Rule and Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice. 

The post Client Alert – EEOC Publishes Final Rule on Pregnant Workers Fairness Act appeared first on Weiss Serota Helfman Cole + Bierman.

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The FLSA—which requires employers to pay certain employees minimum wage, overtime, and keep accurate time and pay records, among other things—is only applicable to employees, not true independent contractors. However, if a company’s classification of independent contractors does not comply with the DOL’s Final Rule, companies may find themselves exposed to DOL audits, hefty fines, and litigation. 

The Tug-of-War 

During the Trump Administration, the DOL issued a Final Rule that sought to eliminate confusion among the courts related to classifying workers. Prior to 2021, courts generally looked to several factors to determine whether a worker was truly independent, including nature and degree of control, opportunity for profit or loss depending on managerial skill, investments by the worker, etc. Each factor was given equal weight. The 2021 Final Rule referred to the same factors, but deemed two factors—nature and degree of the individual’s control over the work and the individual’s opportunity for profit and loss—as “core” factors and more determinative of an employer-employee relationship. The 2021 Final Rule was generally regarded as more “employer friendly.” 

Since then, the Biden Administration has been focused on revising that rule and reverting to the “economic realities test” where no one factor controls. However, the manner in which the 2024 Final Rule has defined these factors is likely to make classifying workers as independent contractors more difficult. For example, a worker’s “skill and initiative” doesn’t just look to whether the worker needs specialized skills in order to do the job, but whether the skills required reflect the worker’s skills “in connection with business-like initiative.” Further, “degree of control” goes beyond the business’ control over the manner in which the work is performed to include restrictions on the worker’s ability to work for others or “economic restrictions.”

Why does it matter

Although it is likely that the 2024 Final Rule will be challenged, businesses would be wise to consult with competent legal counsel regarding their current classifications. Taking a more holistic approach to the ways in which the business uses and governs their independent contractors is likely to go a long way in making a strong case for proper classification should the DOL come knocking. Employers may also want to review their existing independent contractor agreements to be more clear on the expectations and nature of the work. 

It is worth noting that the DOL’s Final Rule only relates to enforcement of the FLSA and does not apply to other federal laws, including the National Labor Relations Act or anti-discrimination laws. Moreover, legal precedent within a particular Circuit is still controlling, though the Final Rule may be used to persuade courts when deciding whether certain workers are properly classified.

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Change 1: Termination of Tenancy Without Specific Terms

Section 83.57 addresses the Termination of tenancy without specific terms, directing how either party can terminate a lease without a specific duration. Such a tenancy can be terminated by either party giving written notice to the other party within any of the following timeframes:

1. When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;
2. When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;
3. When the tenancy is from month to month, by giving not less than 30 days’ notice prior to the end of any monthly period; and
4. When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.

Previously, 83.57(3) gave either party no less than 15 days’ notice before the end of any monthly period to terminate a month-to-month tenancy. The modification to 83.57(3), as shown above, increases the statutory requirement of notice to 30 days prior to the end of any monthly period when terminating a month-to-month tenancy. However, no change was made to when the monthly period begins and ends, remaining the date when the monthly payment is due. So, if rent is due on the 15th day of March, the notice must have been given at the latest on the 13th day of February (accounting for a 28-day month) to satisfy adequate notice of lease termination.

Change 2: Termination of Tenancy With Duration

Section 83.575 addresses Termination with a specific duration, governing how the parties to a residential lease can terminate a lease with a defined start and end date. This section contemplates a situation in which the lease agreement specifies a notice period for termination:

1. A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord within a specified period before vacating the premises at the end of the rental agreement, if such provision requires the landlord to notify the tenant within such notice period if the rental agreement will not be renewed; however, a rental agreement may not require less than 30 days’ notice or more than 60 days’ notice from either the tenant or the landlord.

Previously, the notice period for termination of a lease with a specific duration only provided for a maximum notice of 60 days. Neither party was obligated to provide a minimum amount of notice upon termination of the lease. The revision adds a minimum amount of notice of 30 days by either party while still providing the maximum amount of days, 60, for requisite notice of termination. Here, either party must provide notice of termination a minimum of 30 days before, but may still provide 60 days notice before termination. So, if the lease renews on the 1^st of the month, the notice must have been given at least 30 Calendar days before that date, but could have been given at most 60 days prior to that date.

These changes to notice requirements are key for both the landlord and tenant in order to properly and timely terminate a residential tenancy.

The information contained in this document does not constitute legal advice. 

This client alert was written with the assistance of Emma Rodgers. Emma is a legal intern in the Real Estate division and is an LL.M. candidate in Real Property Development at The University of Miami School of Law. 

The post Client Alert: Important Changes to The Florida Residential Landlord and Tenant Act (Part II of Chapter 83 Florida Statutes) appeared first on Weiss Serota Helfman Cole + Bierman.

Effective April 28, 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) went into full effect. The PUMP Act applies to all employers that are covered under the Fair Labor Standards Act (“FLSA”) and protects all nursing mothers (with very limited exception for certain employees of airlines, railroads, or motor coach carriers), regardless of whether the employee is exempt from minimum wage or overtime. Small employers (those with fewer than 50 employees), may be exempt from the Act if they can prove that compliance would “impose an undue hardship by causing the employer significant difficulty or expense.”

Under the PUMP Act, employers are required to provide reasonable break time to nursing mothers each time the employee needs to express breast milk for up to one year after the birth of their child. Because the law requires breaks “each time” the employee needs to pump, employers may not restrict the duration or frequency of the breaks. In addition, nursing employees must be provided with a functional space that is (1) shielded from view; (2) free from intrusion from coworkers and the public; and (3) may be used to pump breast milk. This space cannot be a bathroom (no matter how private), but can be a temporary or “as needed” space—such as an empty office—so long as the employer puts a sign on the door to alert others not to enter, or, better yet, provides a space that can be locked from the inside. Employers must provide a functional space for each nursing mother; so it may be necessary for employers to designate more than one space depending on the needs of their employees.

Employers are cautioned not to forget about their remote employees. While employers do not have to provide a functional space to remote workers, employers must allow remote employees to turn off their cameras while the employee is pumping, and must also ensure that employees are completely relieved of their duties or properly compensated.

Employers are not required to pay for breaks as long as the employee is fully relieved from their duties when pumping. If the employee is not completely relieved of their duties, their hours must be counted as working time and employees must be compensated accordingly under the FLSA. Moreover, if an employer already provides paid breaks to its employees, and the nursing employee chooses the paid break time to pump, the employer must pay the employee in the same way as it pays other employees for the break time.

Employers are also prohibited from retaliating against employees exercising their rights under the PUMP Act and an employee who believes they are the victim of retaliation can pursue a claim under the FLSA.

Employers who fail to provide reasonable break time and/or functional space requirements may be required to compensate employees for lost wages, liquidated damages, compensatory damages, and punitive damages “where appropriate.” These remedies are in addition to other equitable remedies, such as employment, reinstatement, and promotion.

In light of the PUMP Act and the Pregnant Workers Fairness Act, employers should carefully review their current policies and make sure that they align with these new mandates. Most importantly, employers must ensure their supervisors and human resource personnel are educated on these new laws and equipped to effectively handle employee concerns to reduce exposure to litigation.

Should you have any questions about the Pump Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

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