Danz & Kronengold, P.L.
866-640-1080 Toll Free
954-406-7535 Local
Serving clients in Florida
& Nationally

May 2017 Archives

The New OSHA Injury and Illness Recordkeeping and Reporting Requirements

A new rule has been put in place that requires certain employees to submit their work-related accident and injury reports to OSHA electronically. This rule took effect on January 1, 2017. OSHA is not currently accepting electronic submissions. A proposal has been made to extend the start date beyond the current date of July 1, 2017. Updates will be posted on the OSHA website.

New Florida Law Ensures Contractor Status For Drivers Beginning July 1

The dividing line between an employee and a contractor has been a controversial one for people involved in the gig economy, especially rideshare drivers. As of July 1, 2017, drivers in Florida will find their status finally solved. Governor Rick Scott announced on April 24 that he will sign a bill into law that deems rideshare drivers to be contractors.Finally Settled

Whether drivers support the classification as contractors or not, the bill does remove a lot of the uncertainty surrounding their jobs, finally giving them a definite route to take if problems occur. It also lets the drivers know where they stand regarding insurance as the bill requires the companies they work with, known as transportation network companies or TNCs, to carry insurance that protects both the driver and the passenger.Better Definition of Duties and Protections

While classifying the drivers as contractors may sound at first like they are being cut adrift to fend for themselves as freelancers, the law offers several protections. Not only do the drivers and companies have to put in writing that the drivers are contractors, but the companies can't prevent the drivers from working for other TNCs or working in any other field in any other position. The TNC also has to avoid requiring the drivers to be logged into the TNC's networks during specific times. Basically, the drivers just got a lot more freedom to control their own work schedules.The law was badly needed because there was a great deal of confusion over the role of rideshare drivers in the gig economy. This is a fairly new concept in the world of freelancing, and many drivers felt they had to fulfill requirements that were more appropriate for regular employees. In fact, several lawsuits have sprung up contesting treatment of drivers, claiming that the drivers were really regular employees due benefits. The law makes these lawsuits unnecessary, and while that may be bad for those who filed them, it does clear the decks for a fresh start for everyone involved.The law also makes state law paramount in determining driver status. Cities and counties can't pass their own laws that call the drivers employees.Additional New Requirements

After the law takes effect in July, TNCs will have to enforce zero-tolerance policies regarding the use of drugs and alcohol by their drivers, and all drivers must undergo criminal background checks. Riders must get accurate information about fares as well as receive timely receipts. And finally, the law states that TNCs and drivers can't discriminate in hiring or accepting rides.The addition of this law clears up a major point of confusion and makes the roles of the TNCs, drivers, and riders much clearer. It is possible that the law, or a variant of it, could be expanded to cover other gig-economy jobs, though at this time there are no laws pending. Still, Florida employers should keep their eyes open for upcoming changes. 

Second Circuit Rules Facebook Rant Was Protected Activity

A recent 2nd Circuit court ruling will affect how employers have to deal with employees who make profane comments about their place of employment or associated workers outside of work time. The April 21st ruling noted that an employee's Facebook rant, in which the employee used profanity to describe a supervisor, was protected speech because the employee was in the middle of union talks and then used the post's subject matter to promote the union. The employee had been fired for the rant, but the court's decision means that now, firing for a similar situation will not be the go-to option for employers.

Accommodation Obligations Begin During the Application Process Under the EEOC

Most employers are aware of the responsibility to treat their employees fairly, but did you know that the rules also extend to the interview and hiring process?The Equal Employment Opportunity Commission (EEOC) recently released its updated Strategic Enforcement Plan. One of the stated national priorities is to increase enforcement efforts related to hiring practices that conflict with ADA rules.As an employer in Florida, you must have a solid grasp of the anti-discrimination laws laid out by the Americans with Disabilities Act (ADA). Failure to comply, whether intentional or not, can land you in hot water and cause a multitude of unnecessary headaches.What You Need to Know

Title I of the Americans with Disabilities Act states that qualified applicants with disabilities must be provided with reasonable accommodations during the pre-employment interview and screening process. Employers are provided with limited protection under the caveat "except when such accommodation would cause an undue hardship."In simple terms, a disability that limits a potential employee's ability to perform ancillary job functions must not exclude him from the opportunity for employment as long as she is qualified to perform the essential functions of the position. For example, if a grocery store cashier with chronic fatigue syndrome needs to have access to a stool so that she can sit while working, the employer must provide this accommodation.This extends to the hiring process in many ways. Examples may include providing an interpreter for a hearing-impaired applicant, offering alternatives for pre-employment testing, or allowing different methods of submitting to a required drug test.What are Reasonable Accommodations?Reasonable accommodations are adjustments to the status quo that remove potential barriers to a disabled person's ability to obtain employment. Disabled individuals must be able to enjoy the same benefits of employment that are available to similarly-qualified non-disabled individuals. Some examples of reasonable accommodation include, but are not limited to:Providing training in alternate formats (large print, captioning, Braille)
Restructuring the job to remove non-essential functions
Modifying work schedules or absentee policies
Modifying equipment or purchasing needed devices
Changes to standard policies and procedures.What is Undue Hardship?An employer can claim undue hardship if a requested accommodation would cause a significant disruption to the business or excessive expense relative to the employer's financial resources. Requests should be evaluated on a case-by-case basis and employers are well advised to try to work with the employee rather than pursue an undue hardship claim.It should be noted that undue hardship is not the same as an inconvenience. Unless the request would fundamentally alter the way that you do business, the EEOC will expect you to make the necessary accommodations. If a financial hardship is claimed, the EEOC will evaluate the resources of an organization in its entirety rather than a single department.Avoiding Compliance ProblemsOne of the most common mistakes that an employer can make is deciding to cancel or refuse to finish an interview with a person who has a disability. Even if you believe that your business will be unable to modify the position as needed, you must still provide the applicant with the same interview opportunity as would be given to a non-disabled person. Only after you have completed the interview and determined if the person is qualified are you allowed to ask what type of accommodations would be needed if hired.During the interview process, be sure to clearly explain the essential duties of the job and ask the candidate if he or she has the ability to perform them. Be careful about making assumptions based on a person's physical or mental disability.

Lead Counsel | Rated Broward County | Bar Association The Florida Bar | 1950 AV | Av Preeminent Martindale-Hubbell Lawyer Ratings
A Proud Member of INBLF | International Network of Boutique Law Firms FLN | Florida Lawyers Network | When Legal Matters Super Lawyers