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The information provided below is general in nature and not legal advice and should not be construed or relied on as legal advice. Legal advice may be given only based on specific facts.

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Federal Minimum Wage

Question: The new federal minimum wage is going up this July 24, 2009 to $7.25; do we have to bring the tipped employees pay up as well (Right now our hotel is paying $4.19 per hour and taking a $3.02 tip credit for each hour worked)?

Answer: Florida’s Constitution requires that the tip credit in Florida be no more than it was in 2003 ($3.02 per hour). Although the Florida’s minimum wage ($7.21) is not going up on July 24, 2009, the federal minimum wage is increasing on that date. It is going to hopscotch over Florida’s $7.21 by 4 cents to $7.25. Federal law will allow employers in those states that do not restrict the tip credit to pay a minimum of $2.13 per hour with a tip credit of $5.12 starting on July 24.

However, Since Florida has restricted the tip credit, Florida employers should follow Florida’s more restrictive tip credit. This means the minimum direct wages a Florida employer would have to pay to a tipped employee starting July 24, 2009 is $7.25 (minimum wage)- $3.02 (the tip credit) = $4.23 per hour. If an employee’s tips combined with the employer’s direct wages do not equal the minimum wage the employer must make up the difference.

For hours worked beyond 40 in a workweek, for tipped employees, Florida employers must pay time and one half of at least $7.25 ($10.88) minus the $3.02 tip credit = $7.86 per hour. (JUNE 2009)

Smoking Policy

Question: Our Hotel wants to prohibit smoking not just in our building but anywhere in the property, including the outdoors. Will Florida law prohibit the Hotel from denying employees the right to smoke outside even on their break time?

Answer: No. The Hotel can prohibit employees from smoking outside even if employees are on their break time. The “No Smoking Policy” should be in writing and clear so that employees cannot argue about what they can and cannot do on their break time. (SEPTEMBER 2008)

Age Discrimination

Question: In discussing the Age Discrimination in Employment Act, we know that we cannot treat employees ages 40 and older differently at our Hotel because of their age. However, can we discriminate against applicants or employees for being “too young” to get a job or promotion?

Answer: The federal ADEA applies only to applicants in employees 40 years and older. However, Florida Civil Rights Act prohibits discrimination based on “age” without any restrictions. The Florida law has been interpreted as applying to applicants and employees 18 years and older. As such, the federal law would not apply to a “too young” claim, but Florida law may certainly do so. As a result, applicants and employees should not be told that they are “too young” to fill a position so long as they are qualified for the job and are 18 years of age or older. (SEPTEMBER 2008)

Overtime Pay

Question: We have an hourly employee who would like to work additional hours to earn extra money. However, we do not want to pay overtime. We do have extra work the employee can do in a completely different department.

Is there an FLSA exemption or contract the employee can sign so that we will not have to pay overtime?

Answer: No. All hours that a non-exempt employee works in a workweek must be added together. If the total is over 40 hours during a workweek, then the employee must be paid overtime. The Department of Labor allows employers to add together the employee’s total weekly earnings and then divide that amount by the total hours worked to obtain the regular rate of pay. The rate is for all hours worked. So, only an additional half-time needs to be paid for every hour worked over 40 hours in that workweek.

In addition, the employer and employee may agree that the last job worked will be the hourly rate used to pay overtime.

Do Not Forget: The regular rate may be affected if an employee works extra hours as a tipped employee or an employee receiving a commission or service charge. Calculating overtime on these positions can be tricky so legal counsel should be consulted. (August 2008)

FMLA Leave

Question: We have an exempt Assistant Manager that will be going on maternity leave soon and taking FMLA. While she is on leave, we are planning to eliminate her position. We would likely downgrade her position so that an hourly employee can perform parts of the job.

If we do not have a similar position at the Hotel for the returning employee, what does the FMLA require?

Answer: The FMLA allows your Hotel to eliminate a position for economic reasons. The FMLA would then allow the Hotel to terminate the employee if the position has been eliminated. However, if the position is eliminated for legitimate economic reasons, the Hotel should make all reasonable efforts to find comparable or even lesser employment to offer the employee. The burden of proof is on the Hotel to demonstrate that the adverse employment action was not as a result of the employee’s pregnancy or FMLA leave. As a consequence, the Hotel must carefully review its decision and options to ensure that the Hotel is not retaliating against the employee for taking FMLA leave. (AUGUST 2008)

Seats

Question: Florida law, Section 448.05 is entitled Seats to be furnished employees in stores-does this law apply to a hotel (e.g. front desk clerk) and does it say that employees must be allowed to sit at work and if we don’t do so, does our hotel commit a crime?

Answer: Although the statute’s title refers to “employees in stores,” the text of the statute applies to a broader group of employees. I believe the law does cover hotel front desk clerks, cashiers, sales clerks, and others at the hotel who are required to stand for long periods as part of their job duties. The law was originally passed in 1899 and has criminal penalties. However, there is no case law interpreting the statute.

Section 448.05 requires that the affected employees have access to chairs or other seating during their meal period and break time, if any during their shift or when their job does not require them to stand; the statute does not require the hotel to provide a seat for these employees to use during their work time when standing is required.

The hotel could be required to provide a seat for a clerk to use during work time, however, if the front desk clerk at issue has a disability and requests a seat as a reasonable accommodation under the ADA or Florida Civil Rights Act, or as part of a light duty assignment when an employee has a workers compensation injury requiring sitting. (June 2006)

Forced Overtime

Question: Can we force employees to work overtime?

Answer: The federal wage and hour laws do not prohibit requiring employees to work overtime. Those laws only require that an employee be paid time and a half their regular rate of pay for hours worked beyond 40 in a workweek. As a result, an employer may “force” employees to work overtime and may discharge an employee who refuses.

An employer must carefully consider its actions, however, when requiring overtime of employees who have not traditionally worked such extra hours. An employer should give the employee sufficient advance notice so that he or she may arrange personal matters (e.g., child care, vacations). An employer may also consider first asking for volunteers before requiring overtime.

There may be one exception to this rule: Employees who have a disability that may be aggravated by working extra hours may claim that limiting their work to their regular working hours constitutes a reasonable accommodation. (June 2006)

Polygraph

Question: We had a theft in our hotel and I believe that one of our employees may be the culprit. Can I force my employees to submit to a polygraph test to ferret out the culprit?

Answer: Generally the Employee Polygraph Protection Act (“EPPA”) prohibits private sector employers from even suggesting that an employee submit to a lie detector test. In some circumstances, however, an employer involved in an ongoing investigation of a criminal act which resulted in “economic injury” to the employer may be exempt from the EPPA limitations.

Even so, the EPPA prohibits an employer from requiring the test as a condition of employment. Further, the employer may not discharge, discipline or otherwise discriminate against the employee based solely on the result of the polygraph test or the employee’s refusal to take the test.

Even where an employer may test, many procedural requirements must be followed. For example, the employer must provide the employee with written notice of:

1 The date, time and location of the test;
2 His or her right to obtain and consult with legal counsel or another representative before each phase of the test; and
3 The characteristics of the test and what types of instruments may be used, as well as whether the test can be observed or recorded.

Furthermore, the employee must sign a statement which discloses that:
4 The test cannot be required as a condition of continued employment;
5 Statements made during the test may constitute evidence against the employee; and
6 The employee has legal rights if the test is not conducted in compliance with the EPPA.

An employee may not be asked any questions regarding sexual behavior, race, religion, politics or union activity. In addition, an employee may not be asked questions in an overly degrading or intrusive manner and has the right to terminate the test at any time.

I strongly recommend that you consult with legal counsel before submitting your employees to any kind of lie detector test. (June 2006)

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