HR Specialist: Florida Employment Law by Capitol Information Group

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Trusted compliance advice for Florida employers

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FLORIDA Employment Law

October 2008 – Special Issue

Must you pay hourly staff for commute? Sometimes, yes

FLSA

f you think you don’t have to start paying hourly employees in Florida until they arrive at the official job site, think again. While it’s true that you don’t normally have to compensate employees for their home-to-job commute, you may have to pay for the travel time if you impose restrictions on that commute or require them to stop along the way. U.S. Labor Department rules say travel time is considered paid work time if it’s part of the employee’s “principal activity” and it benefits the employer (see page 6). As a new court ruling shows, employers must be wary of placing any restrictions on the manner in which

Florida Supreme Court

Standards Act (FLSA) for back wages and overtime. The 11th Circuit Court of Appeals sided with the engineers, concluding that making the workers stop at the garage at the beginning and end of the day was “an inconvenient detour for the employees who, at the end of the workday, could not drive directly home.” That inconvenience made it paid time rather than commuting time. (Burton v. Hillsborough County, No. 10247, 11th Cir.)

Rules of the road: Know the FLSA rules on excessively long commutes … See page 6

Employees can sue even after receiving workers’ comp

ou may think the Florida workers’ compensation system precludes employees from suing their employers for on-the-job injuries, especially after the employee starts receiving workers’ comp payments. But, as a recent Florida Supreme Court ruling shows, that’s not true in certain circumstances, and this offers even more incentive to tighten up your safety efforts. Under Florida’s workers’ comp law, employees receive compensation for on-the-job injuries without having to prove the employer was at fault. The trade-off is that employees typically can’t sue their employers for negligence.

employees travel to the work site. If you require employees to fill up at a particular gas station or make certain job-related stops on the way, that commute could turn into compensable time because the employer presumably benefits. Recent case: Whenever Hillsborough County field engineers needed to take work trucks to job sites, they’d first drive their own cars to the county parking garage and pick up the trucks. The county didn’t pay engineers for their time driving the county trucks to the first work site of the day, reasoning that it was unpaid “commuting time.” The engineers disagreed and sued under the federal Fair Labor

But when an employer’s actions are so “egregious” that they amount to intentional harm, the injured employee can chose to sue directly and win payment for pain, suffering and punitive damages. This holds true in cases where the insurer begins making payments without the employee actually applying. Recent case: Curtis Jones suffered burns over half his body in an explosion at work. The company’s workers’ comp carrier immediately paid Jones’ lost wages and medical bills. Jones later filed an intentional-harm lawsuit, alleging the company’s failure to prevent the explosion amounted to

an egregious, intentional act, which exempted the company from workers’ comp lawsuit immunity. The Florida Supreme Court agreed with Jones, saying he was free to pursue the lawsuit because he’d done nothing to get the workers’ comp benefits originally and never said he wanted to forgo the right to sue directly. (Jones v. Martin Electronics, No. SC04-1538, Supreme Court of Florida) Bottom line: Be aware that when your insurance carrier initiates workers’ comp payments without a direct request by an injured employee, you still may be sued for intentional harm.

In this issue

Track all hours worked—even for exempt employees . . . . . . . . . . . . . . . . . . . . . 2 Are you ready to explain every promotion decision? . . . . . . . . . . . . . . . . . . . . . . 3 National Roundup: Compliance lessons from other states . . . . . . . . . . . . . . . . . . 4 (800) 543-2055

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www.theHRSpecialist.com/FL

Comply with Florida’s workplace poster laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Florida’s climate is right for overtime lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Mailbag: Your questions answered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 National Institute of Business Management

FLSA

Track all hours worked just in case exempt status fails

he Fair Labor Standards Act (FLSA) requires employers to pay hourly employees time-and-a-half for every hour worked in excess of 40 hours per week. But exempt employees are paid the same salary no matter how many hours they work. Thus, many employers assume they don’t need to keep track of the hours exempt employees actually work. Wrong! Since it’s conceivable that employees could contest their exempt status, you should track all hours worked by all employees. If you made an error and an employee is later found to be nonexempt, you’ll have to figure out how much back pay you owe. If you don’t know how many hours the employee worked,

you’re stuck with his or her (likely inflated) figures. Plus, the employee will want to calculate overtime based on salary divided by 40. If you have accurate figures, you can divide salary by the actual hours worked. The total tab will probably be less (see box at right). Recent case: Enrique Torres worked for Bacardi and claimed he was wrongly classified as exempt. He sued and the court said it would let a jury decide. However, because Bacardi kept accurate records of its employees’ work hours, the court allowed the company to calculate what it owed in overtime by dividing Torres’ salary by the actual hours he worked per week rather than by 40. Then, for each week, the overtime

due equaled half the hourly rate times the number of hours in excess of 40 worked that week. (Torres v. Bacardi Global Brands, No. 06-20689, SD FL)

Calculating overtime for lost exempt status Assume $1,000 salary and 55 hours worked for this example:

• $1,000 ÷ 40 = $25 per hour Then $25 ÷ 2 = $12.50 per hour Then $12.50 X 15 = $187.50 overtime • $1,000 ÷ 55 = $18.19 Then $18.19 ÷ 2 = $9.10 per hour Then $9.10 X 15 = $136.50 overtime

LEGAL BRIEFS: Florida and 11th Circuit Courts Health/safety fears justify employee’s refusal to work Florida employees who refuse to work because of health or safety reasons can still receive unemployment benefits. So you’ll be on the hook for paying UI benefits if an employee quits for “good cause,” such as fear of driving at night in an unreliable vehicle, crime or the welfare of an unborn child. Recent case: When Miami Beach security guard Valerie Gibson became pregnant, she asked Vanguard Security to reassign her to a less stressful position. She collected unemployment until her employer offered her another job three bus rides from her home. Her doctors advised her not to take public transportation, so Gibson rejected the offer. The Florida Unemployment Appeals Commission said she refused work without good cause and took away her benefits. An appeals court disagreed, concluding that fear for one’s health justifies quitting or rejecting a job. (Gibson v. Florida Unemployment Appeals Commission, No. 3D05-2252, Court of Appeals of Florida)

Chasing thief off-site? Injury earns workers’ comp Generally, workers’ compensation won’t cover Florida employees when they’re injured after leaving the workplace. But that’s not the case if the employee left the premises in an emergency to save life or property related to the business. Recent case: Robert Deutsch, a used car salesman, was on duty in his employer’s parking lot when a woman pulled up and grabbed a bubble machine he had bought to attract customers. Deutsch chased after her car and lunged through the open window to recover the machine. The 2

Florida Employment Law • October 2008

woman took off, dragging Deutsch behind the car. He fell underneath and was run over. Deutsch lost his first bid for workers’ comp because the injury occurred off-premises. On appeal, the court reversed and ordered benefits. It said that when employees respond to an emergency to save life or property, they’re still at work. Deviating from his routine didn’t mean Deutsch wasn’t working at the time. (Deutsch v. Heritage Automotive Enterprises, No. 1D05-669, Court of Appeals of Florida)

‘Male bashing’ doesn’t equal sexual harassment When it comes to sexual harassment, the law protects all employees as long as the harassment is “on account of sex.” That means both female and male employees can be victims. For harassing conduct to be illegal, it must affect an employee’s employment or “create an intimidating, hostile or offensive work environment.” But, as the following case shows, not all offensive, gender-based comments rise to that level. Recent case: Craig Galloway, an HR professional at a state agency, filed suit, claiming he was subjected to a sexually hostile environment. He said female co-workers exhibited an anti-male bias when they commented that men are “insensitive,” “jerks” or “stupid,” and the women allegedly said they’d like to see “his butt in a pair of jeans.” The 11th Circuit tossed out his case, saying the comments, while insensitive, weren’t severe or indicative of a pervasive anti-male bias. (Galloway v. Georgia Technology Authority, No. 05-15055, 11th Cir.) Note: The 11th Federal Circuit includes Florida, Georgia and Alabama.

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Unemployment comp

Absences can be ‘misconduct’ that bars unemployment

lorida employers won’t be on the hook for a former employee’s unemployment compensation if they can prove they fired the employee for misconduct. But what behavior rises to the level of “misconduct”? An employee’s excessive and unauthorized absences can count as misconduct because, Florida courts say, such absences “hamper the operations of a business and are inherently detrimental to the employer.” Tip: Before trying to challenge an unemployment claim on grounds of excessive absenteeism, make sure those

Promotion

aren’t related to employment misconduct. Absences must be “excessive and unauthorized” to meet that standard. “Absences that are properly reported to the employer and are for compelling reasons, such as illnesses, do not constitute misconduct connected with work,” the court said. If she had been absent because she was faking an illness or simply didn’t want to work a particular day, she would have been ineligible. (Tallahassee Primary Care Associates v. Florida Unemployment Appeals Commission, No. 1D05-4671, Court of Appeal of Florida)

Are you ready to explain each and every promotion decision?

awsuits sometimes seem to come out of nowhere. While you can reduce your risk through prevention, you can’t eliminate it entirely. That’s why you need a backup strategy. For failure-to-promote lawsuits, that strategy should involve being ready to explain each and every promotion decision with solid business reasons. Timing is everything. The key is to clearly document the rationale for your decision at the time you make it—not after a disappointed employee files the lawsuit.

FMLA

absences truly are excessive and weren’t for a legitimate reason, such as an illness. Recent case: A medical-clinic employee was often absent because her child suffered pulmonary problems. The clinic warned her several times about her absences and eventually fired her. The clinic contested her application for unemployment on the basis that her absences amounted to misconduct. But the Florida Court of Appeals awarded her the benefits because absences due to family emergencies and illness

The explanation doesn’t have to be elaborate. It’s enough to note, for example, that John was promoted because he has seniority, and company rules say seniority is the primary factor in determining who is promoted. Recent case: Ron Lightsey was a part-time U.S. Postal Service clerk who hoped for a promotion to permanent, full-time status. He noticed that some of the women working alongside him got promotions even though the grapevine said none were in the works. He sued, alleging sex discrimination.

The post office countered that two of the women Lightsey thought had been promoted were still part-time clerks. The third woman had been promoted based on her seniority—which was the only factor the post office considered. A trial court tossed out the case, and the 11th Circuit Court of Appeals upheld that decision. It said there was no evidence that the post office’s stated promotion decision was a pretext for discrimination. (Lightsey v. Potter, No. 07-14015, 11th Cir.)

Lack of honesty on FMLA form is legal firing reason

mployers expect truth from their employees and can discharge employees who don’t live up to those standards. Falsifications of any kind, if documented and substantiated, constitute grounds for dismissal. Recent case: Tabitha Newton, a consumer loan specialist at SunTrust Bank, often took intermittent leave for migraine headaches. When she came down with an earache, she asked her doctor to provide certification for FMLA leave. The doctor’s office, however, wrote the wrong return date on the certification form. When Newton called and asked them to revise it, a doctor’s

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assistant told her to change it herself and sign it with the doctor’s initials. Her supervisor became suspicious and asked Newton if she had altered the form. Newton denied doing so. When her doctor’s office said it hadn’t changed the form, but had suggested Newton alter it, the supervisor asked Newton again. One more time, Newton lied and said she hadn’t altered the form. SunTrust Bank fired Newton for dishonesty and she sued, claiming the termination was retaliation for taking FMLA leave. The court dismissed the case, saying that employers are

entitled to expect honesty in all dealings, including answers to questions on FMLA forms. It didn’t matter that the doctor had authorized the alteration; she had still lied. (Newton v. SunTrust Bank, No. 06-CV-604, MD FL)

Free report How to Wipe Out Fraud and Abuse Under FMLA For an 11-step process to prevent fraud by FMLA users, access our threepage primer, How to Wipe Out Fraud and Abuse Under FMLA, at www. theHRSpecialist.com/whitepaper.

October 2008 • Florida Employment Law

National Roundup

Compliance lessons from other states

Interview notes can be a binding contract

FMLA users can shop for a second opinion

MISSOURI During Robert Baum’s interview with Helget Gas Products, he said that he needed a three-year contract. Baum took careful notes of the discussion with the hiring manager, including descriptions of salary and benefits. After he accepted the job, Baum wrote “Contract with Helget Gas” across the top of the notes, and gave them to the manager, who signed them. The company fired Baum a year later for not meeting sales goals. He sued, saying the notes guaranteed him three years of work. A court found that the signed notes did create a contract. (Baum v. Helget Gas Products) Advice: Oral promises made by supervisors can be enforced as contractual agreements, especially if employees or applicants have something in writing to back up their claims. That’s why managers should never sign anything an applicant or employee hands them without prior HR approval.

IOWA A company fired an employee for excessive absenteeism. She asked her doctor to certify that her absence was due to a chronic gastrointestinal disease (thereby qualifying her for FMLA leave). The doctor refused, as did a second doctor. A third doctor agreed to sign the FMLA certification, which the employee delivered within the 15-day limit. When the company refused to reinstate the woman, she filed an FMLA suit. The court let her case go to trial, saying FMLA regulations are silent about whether employees can approach multiple doctors to gain a signature on their FMLA certification form. (Cook v. Electrolux Home Products) Advice: You may not realize that employees can go “window shopping” for the best medical diagnosis. But you don’t have to blindly accept the employee’s word. You, too, can seek a second (and, if necessary, a third) opinion on the “seriousness” of the condition. You can choose the doctor for the second and third assessments, but you must pay for those visits.

Beware legal risk of harassment by customers OREGON A Honduran-born postmaster faced offensive comments from customers about her accent. She even received death threats. She complained up the Postal Service chain, but to no avail. When she sued, a federal appeals court sided with her, saying the Postal Service was liable for third-party harassment because it essentially “condoned” the conduct by ignoring it. (Galdamez v. Potter) Advice: Too many employers think harassment is only an employee-on-employee thing. But your organization can be held liable even when nonemployees—customers or independent contractors working on-site—harass employees. If your organization knew of the harassment (or should have known) but did nothing to stop it, you’re wide open to a lawsuit. While you may not be able to discipline customers/ harassers, you can take reasonable steps to end the harassment. If that means losing a customer, so be it. Protecting employees must come first.

Team-building is good; humiliation is bad CALIFORNIA As part of a morale-boosting exercise, a security company staged employee team competitions. The “losing” teams were spanked with yard signs, forced to eat baby food and wear diapers. At least one employee’s morale wasn’t boosted. She quit over the incidents and sued, alleging sexual harassment. A jury awarded her $500,000 in damages for emotional distress and lost wages, and slapped an extra $1.2 million onto the company’s tab for punitive damages. Two supervisors who concocted the exercise were found personally liable for $50,000 each. (Orlando v. Alarm One) Advice: If your team-building exercises go beyond threelegged sack races and into the realm of reality TV, you could be headed for a lawsuit instead of improved camaraderie. Engaging employees in fun and games is fine, but make sure that the joke’s not at employees’ expense. Stay away from activities that could embarrass, humiliate or injure employees.

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Editor: Anniken Davenport, Esq., HRFLeditor@NIBM.net

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HR Specialist: Florida Employment Law is published monthly by the National Institute of Business Management Inc., 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 543-2055, www.NIBM.net. Annual subscription price: $299. © 2008, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: Florida Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA. 01923, (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney.

Florida Employment Law • October 2008

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Employment Law News Celebrating boss’s death is legitimate grounds for firing Shands Hospital in Gainesville fired employee Barbara West after she openly rejoiced over her boss’s death. West announced her joy through e-mail and office discussion, using biblical passages to support her belief that the death was God’s punishment for the boss’s alleged poor treatment of West. After being fired, West sued, claiming the firing was due to her religious beliefs. The hospital defended itself by arguing that it fired West because her celebrations had upset her already shaken co-workers. A federal court dismissed her lawsuit, reasoning that West wasn’t fired for her religious beliefs but because she openly gloated about her boss’s death.

Florida courts lead U.S. growth in wage-and-hour lawsuits Wage-and-hour lawsuits are growing exponentially, according to the fourth Annual Workplace Class Action Litigation Report from national law firm Seyfarth Shaw LLP. The report showed that class actions under the Fair Labor Standards Act (FLSA) dominated the legal scene, beating out class actions for employment discrimination or the Employee Retirement Income Security Act (ERISA). The U.S. District Courts for the Southern and Middle Districts of Florida led the way with more wage-and-hour filings than any other federal jurisdictions, the report showed. Other states with significant growth in those claims included Illinois, New Jersey, New York, Pennsylvania and Texas. For more on wage-and-hour suits … see page 6.

Be wary of discussing sensitive personnel issues via e-mail You’ve got (legally explosive) e-mail. That’s the message a Broward Circuit Court jury recently delivered to United Parcel Service (UPS) in a court decision that hinged on a single e-mail sent by a company official. The case involved a UPS driver who alleged the company fired him from www.theHRSpecialist.com/FL

Are you complying with Florida workplace poster laws? Both state and federal laws require employers to post certain notices in their workplaces. And these requirements can change without much notice. For example, Florida employers must display a minimum wage poster in a conspicuous place. The Agency for Workforce Innovation makes the poster available online (see www.floridajobs.org or call (850) 245-7105). Here are other state posting requirements and where to access each poster: • Florida Commission on Human Relations’ “Florida Law Prohibits Discrimination” poster. Call (850) 488-7082 or visit http://fchr.state.fl.us. • Department of Revenue’s “To Employees” poster on unemployment insurance. Call (850) 488-8422. • Department of Business & Professional Regulation’s “Child Labor Laws” poster (required when minors are employed). Call (800) 226-2536. • Division of Workers’ Compensation’s “Workers’ Compensation Works For You” poster. Call (800) 742-2214 or download the poster at www.fldfs.com/wc/pdf/ BrokenArmPoster.pdf. For more details on Florida poster requirements, go to www.floridajobs.org/ workforce/posters.html. Federal posters. To discover which federal-law posters you must display in your workplace—based on industry and size—access the U.S. Labor Department’s interactive Poster Advisor site at www.dol.gov/elaws/asp/posters.

its Deerfield Beach office for being an “injury repeater” after he sought workers’ comp benefits. The employee quoted a 2001 e-mail from a UPS official that directed supervisors to target employees with repeated injuries for termination. UPS argued that it fired the man for falsifying delivery records. But the Broward jury didn’t buy it. They took less than three hours to award the 20year employee more than $600,000 in economic damages and $5.3 million for mental anguish. UPS may appeal. Final tip: Suggest to supervisors that, when discussing sensitive issues, it may be best to do it the old-fashioned way, by phone, paper memo or personal visit.

Cleaning execs get prison time for hiring illegal immigrants Three executives of RosenbaumCunningham International (RCI), a Palm Beach firm that provided cleaning services to restaurant chains including Hard Rock Cafe, Dave & Busters, House of Blues and Planet Hollywood, will serve jail time and pay $48.9 million in restitution for employing illegal immigrants and evading taxes. The company paid cash to more than 200 immigrants from Guatemala, Hon-

duras and Mexico, evading about $18.6 million in federal employment taxes. Note: Restaurateurs who used RCI’s cleaning services said they were unaware the company employed illegal immigrants. But beware—the courts have held some companies liable for labor violations committed by independent contractors. Thoroughly check out your contractors.

No, I’m not God, I just play him on the PA Fort Lauderdale-Hollywood International Airport fired a skycap who broadcast an anti-gay message over the public address system. The employee later admitted he downloaded a recorded Bible passage from Leviticus to his cell phone and then played it twice over the loudspeakers as a prank. A gay couple collecting their luggage following a red-eye flight heard the message and complained. You can’t always control what your employees decide to do, but a swift response is the next best thing. The airport fired the porter and issued a statement saying, “Broward County has a zero-tolerance policy for these types of offenses.” October 2008 • Florida Employment Law

In the Spotlight

Florida’s climate is right for overtime lawsuits; build your defense T hat dedicated employee working through her lunch period, even though she’s clocked out, could be a Florida employer’s biggest future liability. Why? Because several South and Central Florida law firms have built lucrative practices on a solid foundation of overtime lawsuits. Florida lawyers have a history of aggressive employment-law entrepreneurship. In the late ’90s, several firms pursued ADA lawsuits by identifying retail stores with poor handicapped accessibility and sending in wheelchairbound customers who later filed complaints. In one case, an attorney sent in his own uncle.

250% jump in OT lawsuits The current litigation wave exploits employer confusion about overtime rules. A couple of years ago, the U.S. Labor Department made important changes to the federal Fair Labor Standards Act (FLSA) overtime regulations. It’s taken a few years for employers to catch on to the nuances of the new FLSA world. But employees are catching on fast. Coupled with high-profile, class-action lawsuits against large employers such as Wal-Mart, employee FLSA awareness is at an all-time high. To make the most of this opportunity, several Florida law firms have launched

extensive TV ad campaigns. The result has been a 250% increase in overtime lawsuits in the South and Central Florida federal district courts over the past three years. In raw numbers, employees filed 336 federal overtime suits in those two courts last year. That’s almost four times the combined number of suits filed in the three most populous states: California, New York and Texas.

Employer vulnerabilities Very few employers that violate the FLSA do so intentionally. Several common mistakes account for most FLSA lawsuits. Who is exempt? The new OT rules say almost all employees who earn less than $455 per week are eligible for overtime (i.e., nonexempt from FLSA). For employees making more than $455, specific tests determine whether an employee is exempt. Employees are exempt (ineligible for OT) if they fall into one of these categories: Executive employees: • Primary duty is management of the enterprise or of a department of the enterprise. • Customarily and regularly direct the work of two or more other employees.

Case study No pay for extended commutes David Kavanagh was a refrigerator repairman who had to travel to several grocery stores in different states during the day. His employer paid for travel time between stores but didn’t pay for his commute from home to the first store or from the last store to home again at night. Also, he was required to return home each night to receive his assignments for the next day. Depending on his job locations, Kavanagh sometimes spent more than seven hours a day in unpaid commuting time—driving to the first job and back from the last. Arguing that he should have been paid for this time, Kavanagh sued the company in an effort to claim more than $37,000 in overtime. A federal appeals court tossed out his suit, saying that although the long unpaid commute “strikes us inequitable, nothing in the pertinent statutes and regulations requires (the company) to compensate for his travel.” Bottom line: The FLSA doesn’t require employers to reimburse workers for getting to and from the job, regardless of time spent. (Kavanagh v. Grand Union Co.)

Florida Employment Law • October 2008

• Have the authority to hire or fire other employees or have input into hiring, firing or advancement decisions. Administrative employees: • Primary duty is the performance of office or nonmanual work directly related to the management or business operations. • Primary duty also includes the exercise of discretion and independent judgment on significant matters. Professional employees: • Primary duty is advanced scientific or intellectual work that typically requires an advanced educational degree; or, it involves the performance of work requiring invention, imagination, originality or talent in a recognized artistic or creative field. Employees who work in computer system or software design or analysis have their own set of rules. Even if they work part time, they can be exempt if they earn more than $27.63 per hour or the standard $455 per week used for other workers. Florida employers should audit their pay records and job descriptions to make sure employees are properly classified. Remember: Paying someone a salary doesn’t automatically make him or her exempt. Even workers who are salaried and make more than $455 per week may be eligible for overtime if their job duties don’t meet the tests for their positions.

Break times The FLSA doesn’t require employers to offer breaks. However, if nonexempt employees are given breaks of 20 minutes or less, you must pay the employees for the entire period. Breaks of 30 minutes or more, such as lunch breaks, can be unpaid. But employees must clock out and be totally relieved of duty during that period. If an employee is called back to work, he or she must clock back in and be paid for the time. (800) 543-2055

Nuts & Bolts

How far must Florida employers go to protect employees’ data? THE LAW Florida lawmakers passed legislation in 2005 that requires employers to disclose when a security breach of personal information occurs. The law covers nearly every employer. The law cites the specific pieces of personal information that employers must protect. Social Security numbers (SSNs) top the list, followed by driver’s license numbers and credit/debit card numbers (and their access codes) when they’re linked with an individual’s name. Employers must provide notification about any data breach, regardless of how they store the data. Information kept on computer hard drives or tapes and all paper documents must be protected. Even out-of-state employers must comply with the Florida law if they do business within the state. Also, a 2003 federal law (the Fair and Accurate Credit Transaction Act, or FACTA) says businesses that negligently allow employees’ or customers’ personal data to fall into the wrong hands can face fines of up to $2,500 per infraction. That may seem like small potatoes, but the law considers each identity stolen as an infraction.

WHAT’S NEW Florida is among the 45 states that have enacted legislation in the past four years dealing with identity theft. About 33 states have passed databreach notification laws. As a result of those laws, you’re seeing more and more employers apologizing in the media about lost laptops and stolen hard drives that contained employee or customer personal data. Federal legislation has been proposed but not passed. HOW TO COMPLY Here are seven tips to help comply with the state law: 1. Come clean about security breaches. If personally identifiable data falls into unauthorized hands, don’t try to hide it. Notify law enforcement first. Florida law says you must inform affected consumers within 45 days of the breach’s discovery. (Companies that www.theHRSpecialist.com/FL

maintain personal information for other businesses have 10 days to notify the data’s owner of a breach.) Failure to notify can be expensive. You’re subject to a $1,000-per-day fine for each of the first 30 days after the date that employees/consumers should have been notified. The fines escalate to $50,000 for each non-notification day beyond 30 days, until fines reach a $500,000 statutory ceiling. To provide notification, you can send a written notice, make a telephone call or send an e-mail message if a prior business relationship exists. If information has been compromised for more than 1,000 people, you must also notify all national consumer-reporting agencies (Equifax, TransUnion and Experian). Special rules apply for breaches of more than 500,000 people. 2. Encrypt your data. Encrypted data are not considered “personal information” under Florida law. Therefore, if someone steals a company laptop that holds employees’ SSNs, you won’t have to disclose that security breach to employees or government officials if the data are encrypted. (Note: You won’t have that immunity if the encryption keys are stolen at the same time.) 3. Draft a breach-notification policy. Don’t get caught flat-footed. Draft a plan on how you’ll deal with a data-security breach before it happens. It should include steps such as notifying your attorney right away, investigating to evaluate the threat of harm to employees/consumers and deciding if government/consumer agencies must be informed. 4. Establish data-security procedures. Chart the flow of personal data through your organization and develop a protection strategy at each station. For instance, job applications contain sensitive information. Employers should store paper applications in a locked area with limited access. Receive applications over the Internet only through encrypted web sites. 5. Keep SSNs private. Some state laws prohibit employers from posting

Preventing identity theft: 3 strategies 1. Remove employees’ Social Security numbers from all nametags, personnel records, paychecks and other documents. Federal law requires you to destroy personally identifiable records before tossing them in the trash. 2. Encourage employees to take advantage of their right to obtain one free credit report each year (see www. annualcreditreport.com). When employees suspect identity theft, they should place a fraud alert on their credit reports. That requires companies to contact them before opening an account in their name. 3. Consider offering identity-theft resolution services as a benefit for employees. The benefit, which costs $5 to $120 per employee per year, helps employees cut the time and red tape involved in restoring their credit after an identity theft occurs.

or displaying employees’ or customers’ SSNs or printing them on mailed documents unless required by law. Florida’s law remains silent on the issue, but it’s still a wise business practice. 6. Screen payroll staff. Tightly screen employees who handle personal information. Thorough background checks go a long way. Require employees who handle this information for hiring or payroll purposes to read and sign a confidentiality agreement. 7. Set rules on data portability. Several recent high-profile losses of personal information have occurred when employees have taken the data out of the office on disks or laptops. It’s best to keep such data snug in a secure spot in your building. But if you do allow it outside your walls, make sure to password protect and encrypt the data.

Next Nuts & Bolts: Personnel records Coming soon: The FMLA October 2008 • Florida Employment Law

The Mailbag Look deeper into dubious FMLA leave

to the level of a “disability”), that employee is still subject to discipline, up to termination, if he or she violates your policies regarding misconduct. Final tip: Remember the “golden rules” of employee discipline: evenhanded enforcement and careful documentation.

Don’t dock pay for time-clock mistakes

If an employee calls off intermittently for migraine headaches, how can we verify the real reason for the leave? Can we ask for information each time the employee is absent? — R.D. You’re certainly not the only employer to complain about employees taking advantage of intermittent leave. Many employers have struggled with employees whose conditions seem to flare up on Fridays and Mondays. There’s no way to stamp out this type of abuse altogether. However, you can minimize it by making sure that you promptly designate all time off—including intermittent leaves—to help you exhaust the 12-week FMLA clock as quickly as possible. Also, don’t accept FMLA certification forms that include blanket statements, such as “intermittent leave recommended.” You have the right to demand more specific information. If you have reason to be suspicious of a certification, you can send the employee to a companyselected physician for a second opinion.

Requiring worker to visit psychologist is crazy

Can we demand that an employee receive psychological counseling or treatment if his behavior has become a hindrance to his job performance? — N.M.

No, you can’t require that employees receive any medical treatment—psychological or otherwise— as a condition of continued employment. But you’re not without recourse. Even if an employee is protected by the ADA (i.e., he/she has a mental condition that rises

We dock employees’ pay by 15 minutes if they don’t punch in or out on their timecards. If this happens more than twice over any 90-day period, we write up the employee. We’ve recently been advised that we shouldn’t have such a policy. Is that correct? If so, how can we make sure employees punch in? — K.K.

Rewrite your policy as soon as possible. You can’t dock employees for failing to punch a timecard. Federal wageand-hour law requires you to pay employees for all time that they work, even if they fail to properly record that time. But that doesn’t mean you should ignore the problem. Turn to your progressive discipline policy, instead. Example: You could provide warnings for the first and second offenses, suspension for the third offense and termination for the fourth. The policy should assign discipline that is severe enough to put an end to this problem. Also, consider a policy in which meal periods are automatically deducted, so no punch-out or punch-in is necessary.

Do you have a question for The Mailbag? If so, you can fax it to Florida Employment Law at (703) 905-8042 or e-mail it to HRFLeditor@NIBM.net.

HR FYI More businesses are using GPS systems to track their employees for productivity, safety and customer-service reasons. Example: A waste-disposal system used GPS on an employee vehicle to catch an employee speeding. Some employees have complained that GPS systems violate their privacy. Bottom line: You’re legally allowed to use the technology to track employees while they’re on the job, but it’s wise to first let them know you’re doing it.

readiness and plan ahead. Go to www.pandemicflu.gov and click on the “Planning & Response” tab.

Are bloggers hurting your recruiting potential? Find out what people (possibly your ex-employees) are saying about your organization on their personal blogs, some of which have heavy readership. To do this, plug your organization’s name into a blog search engine, such as Blog Pulse (www.Blogpulse.com) and Google Blog Search (http://blogsearch.google.com).

Plan ahead for the pandemic flu threat

A costly lesson in allowing off-the-clock work

Whether it’s bird flu or a more general flu pandemic, experts say some type of global flu outbreak is inevitable in the coming years that could kill 2 million Americans. The federal government is encouraging employers to create contingency plans, particularly focusing on telecommuting and communication. Good resource: The Centers for Disease Control (CDC) has developed an online, interactive checklist to help employers assess their current

Make sure supervisors understand what counts as “paid time” and remind them that they should not encourage employees to work during breaks. Example of the risk: A Birmingham, AL, bank recently agreed in a Labor Department settlement to pay more than $1 million in unpaid overtime to 2,961 employees. Customer service reps routinely worked without pay during their lunch hour and after their scheduled time ended.

Florida Employment Law • October 2008

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