Gallup AuerbachGallup Auerbach2024-03-11T17:11:02Zhttps://www.gallup-law.com/feed/atom/WordPress/wp-content/uploads/sites/1201629/2021/07/cropped-3578173_favicon-32x32.pngOn Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533232024-03-11T17:11:02Z2024-03-11T17:11:02ZFair pay laws don't apply to the self-employed
There are numerous laws in Florida and at the federal level that establish minimum standards for employee compensation. For example, workers should receive pay that amounts to at least minimum wage for the total number of hours worked. If an hourly worker puts in more than 40 hours during a particular work week, then they should receive overtime pay of one and a half times their hourly rate.
There are no such protections for self-employed workers or independent contractors. Businesses can claim that since the workers set their own hours, the worker controls how long they work. Therefore, employees treated as independent contractors may discover that the wages they’ve received fall far short of minimum wage based on the number of hours that they worked. They may also determine that they should have received overtime pay in some cases.
Those allegations could lead to a complaint being made to the Department of Labor (DOL), which could then lead to a DOL investigation of the business and a determination with costly fines and payment to the workers. The workers could also file a lawsuit for wages and attempt to have the case certified as a class or collective action on behalf of all misclassified workers. The company could also face allegations of tax fraud due to not making payroll tax contributions on behalf of those employees.
It is, therefore, incumbent upon those in managerial or human resources roles to understand the difference between independent contractors, and employees. Federal regulatory authorities recently clarified that distinction with a new final rule outlining the numerous factors that influence whether someone is an employee or not.
Some companies may need to reclassify certain workers or renegotiate contracts to better protect against litigation risk. Understanding what could trigger claims of worker misclassification can help organizations to avoid expensive litigation and to more effectively uphold workers’ rights.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533212024-03-05T16:37:13Z2024-03-05T16:36:29ZSalespeople can often earn a great living plying their trade. But because sales jobs rely on the payment of commissions, the field of sales is subject to frequent instability from economic downturns and other factors.
That’s just one of the negative aspects of the job, but what can make a sales job no longer tenable for the salesperson is when the company withholds commissions from its sales force.
What is a commission sales job?
Some companies compensate the sales representative, in whole or in part, by commission. That means that employees may or may not have a base salary to which commissions are added as a sales percentage or number of units sold.Some commission sales jobs have no base salary, so not getting your commissions paid can really put you into a financial bind.
Under Florida law, an employee is entitled to a commission once it has been earned, meaning that the employee has completed the work necessary to earn the commission. However, if the company has a policy providing that a commission will be forfeited if the employee is terminated prior to the commission being paid, that policy may be binding and could result in the employee not being paid a commission otherwise earned.
What is your recourse?
Presumably, you have already attempted to deal with your employer about the unpaid commissions. If so, they may have another perspective to offer about the situation. They also might be taking all the time the law allows to pay you, so make sure you have established their refusal to pay what is owed. Failing resolution or an acceptable negotiation between you and your employer, you have some options: First, depending upon where you live, your city or county may have a wage theft ordinance and a complaint procedure to recover unpaid wages, including commissions. Second, you can file a complaint with the U.S. Department of Labor. Third, you can file a lawsuit to recover the unpaid commissions. Depending on the amount owed, that lawsuit may be brought in small claims court without the need to hire an attorney. For higher amounts, you may wish to hire an attorney to assist you in bringing a claim.
Learning more about the complexities of employment laws in our state can help you present a viable case for your unpaid commissions from the Florida company that employed you.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533202024-02-29T19:36:32Z2024-02-29T14:24:10ZBusinesses cannot lawfully retaliate against workers
Both federal employment laws and Florida statutes protect certain employment activities. Workers have protection from punishment when they report an injury on the job. They should not face employer retaliation for requesting workers' compensation benefits, requiring a medical leave of absence or seeking workplace accommodations to help them continue working.
Companies should do their best to cooperate with workers who need support to return to their jobs instead of fighting them when they seek workers' compensation benefits. No employer should demote, fire or otherwise punish a worker because they filed a claim for workers' compensation benefits.
However, workers cannot always continue their jobs after an injury. A worker's functional limitations related to their injury or medical condition could render them permanently incapable of performing their job. Depending on the size of the company, it may be impossible to arrange for a way for them to keep their job. Other times, a worker with a job-related injury could be one of many laid off in a downsizing or restructuring effort.
Technically, companies can fire workers for almost any reason or no stated reason at all. Florida is an at-will employment state, so the company can technically let someone go for any reason that isn't discriminatory, retaliatory or otherwise illegal. Still, they are not permitted to fire workers specifically because they reported an incident or sought benefits.
A worker's need for benefits should not put their employment at risk. Learning about the rules that apply during workers' compensation claims may benefit employees who are worried about filing a claim for benefits. Seeking legal guidance is a good way to get both support and personalized feedback in the wake of a work-related injury and/or an instance of unlawful retaliation.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533192024-02-23T17:50:50Z2024-02-23T00:05:05Zprotecting pregnant women from discrimination in the workplace.
Despite clear standards intended to prevent discrimination against expectant new mothers, pregnancy discrimination does still sometimes occur. Workers can find themselves struggling at their jobs, and businesses could end up facing expensive lawsuits over the misconduct of a few employees. The following are some of the more common ways that pregnancy discrimination can manifest in the workplace.
Via denied accommodations
Pregnancy is first and foremost a medical condition that can alter a woman's functional capabilities at work. Employers typically need to work with pregnant women to keep them on the job. Remote work, changes to job responsibilities and assistive technology to limit lifting requirements are all ways to accommodate a pregnant woman's medical limitations. If a woman requests accommodations and has medical documentation affirming their necessity, the refusal to provide necessary accommodations might constitute discrimination.
Through unwarranted terminations
Frequently, pregnancy discrimination culminates in a woman losing her job. A manager unhappy with having a pregnant team member might start writing her up repeatedly until they have a reason to terminate her position with the company. Other times, the company might take punitive action after a woman tries to return to work following her maternity leave. Firing a woman or laying her off because of her pregnancy is a form of discrimination that could potentially trigger litigation against the business.
By demoting a pregnant worker
Sometimes, companies respond to notice about a worker's pregnancy by moving her into a less visible role that comes with lower pay. Other times, a demotion might occur after a woman returns from her maternity leave. Instead of letting her resume the same job, the company moves her into a lower position with less pay.
It is incumbent upon businesses to understand what constitutes pregnancy discrimination to avoid the mistreatment of vulnerable workers, and it is also important for pregnant workers to be able to recognize pregnancy discrimination if it happens to them. As such, understanding common manifestations of pregnancy discrimination can benefit employers and workers alike.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533172024-02-20T16:21:57Z2024-02-20T16:21:57ZA sales commission is a reward paid to sales employees, typically calculated as a percentage of the sales they generate. This system is designed to motivate salespeople to increase their sales output.
The issue of commission clawbacks arises when employers retrieve these earnings under certain circumstances, such as when a customer cancels a deal or returns a product after the commission has been paid. This practice can lead to significant financial uncertainty for sales professionals, who may see a substantial part of their earnings retracted unexpectedly.
Concerns that must be carefully considered
The reasons for implementing clawbacks include protecting a company's financial interests and ensuring that commissions are paid for sales that genuinely contribute to the company's profitability. While these reasons are valid from a business standpoint, they can create a sense of insecurity and unfairness among sales staff. This is particularly true in cases where a salesperson has little control over the post-sale process, such as customer satisfaction or product performance issues that lead to cancellations or returns.
Moreover, the nonpayment of commissions, whether as a result of administrative oversight, cash flow problems or deliberate withholding, poses a serious issue. It directly affects salespeople's livelihoods, potentially leading to legal disputes, decreased morale and a potential decline in motivation among the sales force. The anticipation of not being fairly compensated for one's efforts can significantly dampen the enthusiasm and effort sales professionals put into their work, ultimately impacting sales performance and company revenues.
It's important for sales professionals and the companies that employ them to engage in transparent, fair dealing when it comes to commissions. Should questions arise, seeking legal guidance proactively is generally wise so that tensions don’t escalate unnecessarily.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533152024-02-20T13:25:52Z2024-02-20T13:25:52ZWhat does reasonable accommodation look like?
Reasonable accommodations eliminate burdens on the employee without adding undue burdens to the employer. Since every disability can be unique, the possibilities are endless, but it generally requires minimal expense and effort on the employer’s part and won’t disrupt normal business operations.
Reasonable accommodations can include:
Switching someone’s parking spot so that it is closer to the office door
Adding accessibility features to a work area, restroom or break room
Permitting an employee to use a chair instead of standing at their station
Allowing an employee to use a flexible work schedule or flexible leave
Reassigning an employee to a desk that is away from others
Permitting an employee to wear headphones at their desk
Providing an employee with specialized software, equipment or resources
Using written communication with an employee instead of verbal
Employers are only required to make accommodations once they become aware that an employee has a disability and that their disability affects their ability to perform their job or make use of some workplace benefit.
What is not a reasonable accommodation?
Reasonable accommodations aren’t reasonable if they cause hardship for the employer. Large companies generally have more resources and flexibility with certain accommodations than others, but some examples of “unreasonable accommodations” might include:
Eliminating an essential job function for the employee
Creating a whole new position for the employee
Changing productivity standards to meet an employee’s output
Allowing broad leave, without restrictions or accountability
The path toward securing reasonable accommodations in the workplace can get complicated, as not every workplace is willing to make adjustments, even when they should. If you believe that you have experienced disability discrimination on the job, it may be time to learn more about your legal rights. Similarly, if you’re unsure of whether your business needs to accommodate an employee, seeking legal guidance can be beneficial.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533102024-02-01T16:47:29Z2024-02-01T00:45:15ZEmployees and employers may misunderstand the law
Some wage claims arise because workers misunderstand the law and their rights. They may fail to take action until someone advises them of their options. Other times, a company may misunderstand what practices are legal and which ones could lead to litigation.
For example, it is generally illegal to require that workers regularly perform job functions off the clock or without pay. However, it is common for businesses to train workers to clock out before doing certain tasks or to complete work before clocking in to start a shift.
Other times, it might be company policy that triggers an overtime wage claim. When a company has a no-overtime policy, it may fail to pay workers for wages they earned if they violate the policy by putting in more than 40 hours without proper approval. Workers may accept that decision because they don't know their rights and assume the company knows best.
When employers actually violate the law, the courts may award workers the unpaid overtime wages they deserve. Understanding the origins of many overtime wage claims can inspire people to pursue the pay they deserve for work they have already performed.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533072024-02-01T16:46:24Z2024-01-14T16:45:59ZIf you’re living with a disability, you may apply for the benefits that you believe are due because of your insurance coverage. After all, you may not be able to work. You could also be facing extensive medical bills as you get treatment. It’s important for you to know that these costs are going to be covered since you had the insurance from the beginning.
But there is a chance that your claim could be denied. This can be very frustrating, delaying the process or preventing you from getting the benefits that you need – and that you feel you deserve. Is there any way that you can avoid it?
Presenting proper evidence
Denials happen for many reasons, but one of the most common is that the insurance company doesn’t feel they have the proper medical evidence to validate the claim. It’s one thing for you to say that you have a disability and quite another for a medical professional to confirm that. Medical evidence could include things like:
Lab test results
The results of an MRI or a CT scan
Statements from a medical care provider
Physical and mental health records
Documentation of injuries and ailments, along with the necessary treatment
Additionally, medical evidence will usually include a statement from a medical professional indicating how long they believe the disability is going to last. This can show that it’s not just a short-term condition that should get better quickly, but something you are going to be dealing with for a significant amount of time. As you work your way through this process, be sure you understand all the legal options you have at your disposal.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=533012024-02-01T16:45:08Z2023-12-30T16:44:17Zseverance agreement is relevant for many employees.
Severance agreements are legally binding contracts that outline the terms and conditions under which an employment relationship comes to an end. While the negotiation process may seem daunting, employees in Florida may have the opportunity to discuss certain aspects of their severance agreements.
Assessing the situation
When presented with a severance agreement, employees should carefully review the terms presented by their employer. These terms typically cover issues such as compensation, benefits and confidentiality. With the recent round of tech layoffs, some agreements also include a timeline for layoff, continued healthcare for a specific timeframe and job placement assistance.
Negotiating terms
Some employers may be willing to discuss modification of certain terms in the severance agreement, such as adjustments to the timing of severance payments, non-compete clauses or even the amount of severance offered. However, typically, the employer is not willing to substantially increase the amount of severance offered, particularly since, under Florida law, there is no requirement or obligation to pay severance at all unless the employee has an employment agreement that provides for severance upon separation.
Hiring an attorney to negotiate severance
Most severance agreements include a full general release in which the employee is being asked to release any and all claims the employee may have against the company. Where the employee believes their termination may have been wrongful, and they feel they may have a claim that they would be releasing by signing the severance agreement, then the employee should contact a qualified and experienced employment attorney to review the potential claim and to discuss retaining an attorney to negotiate a higher amount of severance pay, or other modifications to the agreement.]]>On Behalf of Gallup Auerbachhttps://www.gallup-law.com/?p=532972024-02-01T16:39:27Z2023-12-17T16:38:42ZThe supermarket chain Publix, which has over 1,300 stores across the south, is facing a federal lawsuit by nearly 60 hourly department and assistant department managers. They say that they were required to handle work-related tasks outside of their work hours without being paid overtime.
The lawsuit, which was filed here in Florida, represents mid-level managers in a variety of departments throughout stores in Florida, Georgia and Tennessee. The suit alleges that the plaintiffs “were not only compelled to complete various tasks in the stores before clocking in and after clocking out, but also that they were expected to answer texts from colleagues both after-hours and during unpaid lunch breaks.” They’re seeking back pay for the overtime hours they worked.Under the federal Fair Labor Standards Act (FLSA), workers who are paid on an hourly basis are required to be paid at the overtime rate of “time and a half” for any hours worked over 40 hours per week or eight hours in a day. Some salaried employees are also considered “nonexempt” and must be paid overtime, according to the FLSA.A spokesperson for Publix responded to the lawsuit by saying, “As an associate-owned company, we are proud to provide our associates with a comprehensive benefits package – including company ownership – in addition to paying our associates in accordance with the law,” adding that Publix “take[s] these claims seriously and will respond appropriately.”
Easy contact makes constant work demands more likely
In recent years, work and home merged for many people. Further, now that employees at all levels can easily be reached by phone, text or email at any time, they’re often expected to deal with work demands while they’re not working. Many salaried employees – particularly those in higher-level positions, come to expect that this is part of the job.For hourly employees, however, it’s different – or should be. As the legal team for the plaintiffs noted, “It’s unacceptable to force hourly workers to work outside of their shifts and to not pay workers for their time.”If you’re an hourly employee who is regularly expected to handle work responsibilities when you’re “off-the-clock,” it’s important to remind your manager of your pay status. If the problem continues and you can’t resolve it in the workplace or face retaliation for asserting your rights, it can help to get legal guidance.]]>