POLICIES WHICH AFFECT EMPLOYEES – NOTIFICATIONS REQUIRED AND A REVISION OF THE PERSONNEL MANUAL

Some areas where Policy is required by White Springs immediately to comply with Florida Law for which employees should be notified and such notification acknowledged by the employee’s signature.  Notice that not only is the written word brought forward but the Town’s practices are held as law so the Town better make some rulings and make certain there are no exceptions because that is why we are in trouble today.

 

DRUG FREE PREMISES:

Safety & Health Florida Drug-Free Workplace Act – There is no legal duty to test, but employers with drug-free workplace programs may qualify for workers’ compensation rate discounts.  Notice of the drug-free workplace policy must be posted in an appropriate, conspicuous location on the employer’s premises.

One time only, prior to testing, an employer must give all employees and job applicants a written policy statement that contains specific items, including a general policy statement, notice of drug-free workplace law, confidentiality, procedures, list of medications that may impact drug test results, consequences of refusing testing, list of representative local EAP and drug rehab programs, procedures for contesting or explaining positive results or consulting with a medical review officer regarding prescription medications, employee responsibilities to inform testing lab of any civil actions, list of drugs for which the employer will test, and any applicable collective bargaining agreement.

Drug testing policies/procedures must apply equally to all employee classifications and must include job applicant drug testing, reasonable-suspicion drug testing, routine fitness-for-duty drug testing, follow-up drug testing. Such policies may include random testing for safety-sensitive positions.  Employers may establish reasonable work rules for employee drug activity and take action based upon violation of such rules, including discharge/discipline for refusing to be tested. Discharge or discipline imposed in compliance with drug-free workplace provisions is “for cause.”77 No adverse action may be taken based solely on unconfirmed positive test result or on an employee’s voluntarily seeking  Fla. Stat. § 542.335 and § 542.33 71 Fla. Stat. § 440.101(2)  Fla. Stat. § 440.102(2)  Fla. Stat, § 440.102(3) and 112.0455(6)  Id.  Fla. Stat. § 440.102(14)  Fla. Stat. § 440.102(4)(5)(7)  Fla. Stat. § 440.102(7) P A G E | 11 O C T O B E R 2014

While employed, for a drug-related problem if the employee has not previously tested positive, or entered EAP or rehab for drug-related problems. If the initial test is negative, employers have sole discretion to seek a confirmation test. Employers must inform employees of confirmed positive test results, their consequences, and available options within five working days.

Upon request, a copy of the test results must be provided to the employee/applicant. Positive test results and supporting documentation, including grounds for reasonable suspicion testing, must be kept confidential by the employer and retained for at least one year. Employers may not release any information concerning drug test results without written consent or administrative or court order. The Act permits testing for numerous categories of drugs (including alcohol).  Administrative regulations require urine samples to be used for drug tests and blood samples to be used for alcohol tests

 

 

SMOKING:

Florida Clear Indoor Air Act – A person may not smoke in an enclosed indoor workplace. “Enclosed Indoor Workplace” means any place where one or more persons engages in work, and which place is predominantly or totally bounded on all sides and above by physical barriers, regardless of whether such barriers consist of or include, without limitation, uncovered openings; screened or otherwise partially covered openings; or open or closed windows, jalousies, doors, or the like.  Determination must be made as to the penalties which will be imposed at the specific workplace if an employee violates the Workplace law.

FIREARMS AT WORK:

Firearms – Florida’s “guns-at-work” law provides that no employer may prohibit any customer, employee, or invitee from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in such area. This includes independent contractors, volunteers, interns, or other similar individuals.

Additionally, employers may not make a verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot or by an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle. Further, no employer may take any action against a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot for lawful purposes.

Employers also cannot condition employment upon either the fact that an employee or prospective employee holds or does not hold a license to carry a concealed weapon; or any agreement by an employee or a prospective employee that prohibits an employee from keeping a legal firearm locked inside or locked to a private motor vehicle in a parking lot when such firearm is kept for lawful purposes.

 

LEAVE OF ABSENCE – FAMILY MEDICAL LEAVE

Leaves of Absence and Time Off Family Medical Leave – Florida follows the federal Family and Medical Leave Act (“FMLA”). FMLA applies to employers with 50 or more employees.  Our Personnel Manual for White Springs brings forth the FMLA information for all leaves, sick and vacationIf it is not the intent of White Springs to pay an employee continually for one or two years, then White Springs needs to formulate a policy where the personnel manual shall not have any exceptions and if a supervisor decides to extend such personal time, that the supervisor must direct the inquiry to the Town Council before proceeding if the council so agrees and a motion passes unanimously.

Domestic Violence Leave Florida law requires employers with 50 or more employees to provide employees who have worked for a company for three months or longer up to three days of unpaid leave in any rolling 12-month period if the employee or a family or household member of an employee is the victim of domestic violence. It is in the employer’s discretion to provide paid leave. Additionally, an employee must exhaust all annual vacation leave, personal leave, and sick leave before receiving domestic violence leave  Although we do not have such a requirement because of a small staff, a decision should be made in writing as to the intent of the White Springs Town Council.

 

 Jury Duty Pay – In general, Florida law does not require employers to pay employees for time served on juries. Employers may, but are not required to, compensate an employee by payment of the employee’s regular wages while the employee serves on jury duty. If the employer does compensate the employee during jury duty service, the employer is allowed to deduct an amount equal to the State paid juror compensation from the employee’s wages. Jurors who are regularly employed and who continue to receive regular wages while serving as a juror are not entitled to receive compensation from the clerk of the circuit court for the first three days of juror service.

For jury service exceeding five days, employers are required to provide the employee with an unpaid leave of absence. Methods of Payment – Employers may pay wages by money order, check, draft, note, memorandum, payroll debit card, or other acknowledgment of indebtedness to become due, negotiable and payable in cash without discount, at an establishment within the state, the name of which must appear on the instrument or in the payroll debit card issuing materials. Sufficient funds or credit for payment must be maintained for at least 30 days. The employer is: (1) liable for full face value in U.S. money on and after the 30th day after issuance; (2) liable for payment in U.S. money, notwithstanding any stipulation or provision in the device; and (3) subject to suit on failure to pay.

Employers may also pay wages through direct deposit to a financial institution, if the employee provides authorization and designates the institution. Employers may not terminate employees for refusing to authorize direct deposit. Failure to pay or termination for refusing authorization subjects employers to interest and attorneys’ fees.17 10 Fla. Stat. § 448.109 11 Fla. Const. Art. X, § 24 12 Fla. Stat. § 40.24 13 Code of Metropolitan Miami Dade County, Sections 11-31, et. seq. and Broward County Ordinance No. 86-55. 14 Fla. Stat. § 532.01 15 Id. 16 Fla. Stat. § 532.02 17 Fla. Stat. § 532.04 P A G E | 3 O C T O B E R 2014 Jackson Lewis P.C. Florida law does not mandate specific pay periods

Vacation– Florida has no laws requiring employers to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide vacation, however, such benefits are considered wages under Florida law. An employer’s written policy and past practice will control where disputes arise over whether an employer must pay an employee accrued vacation leave, such as whether accrued vacation is payable upon cessation of employment.

Florida allows “use it or lose it” vacation policies and rollover caps if properly articulated in an employer’s policy.  This needs to be done because even if each leave in the Personnel Manual stipulates a cap of 30 days, the White Springs Town Manager allowed an extended time of almost two years.  There can no longer be exception. 

Overtime – Florida does not have laws governing the payment of overtime. Thus, the overtime provisions and exemptions of the FLSA apply.

There is no requirement in Florida that an employer tender a final paycheck immediately upon an employee’s termination. Generally, after an employee has been terminated, his or her final paycheck(s) is due on the next regular payday or days. The employer may not hold the final paycheck as “ransom” in an attempt to force the employee to sign a release or other document. If an employee requests final pay and it is not received within 30 days, Florida Law allows the employee to sue the employer for collection and fees and costs associated with the attempt to collect unpaid wages.

Upon the death of an employee, any wages or travel expenses due may be paid to the employee’s surviving spouse or, if there is none, to the employee’s children over age 18. If there are no children, wages may be paid to the deceased employee’s father or mother.18 Authorized Deductions – Except as prohibited by federal law, the employer may make deductions from the final paycheck for monies owed to the employer, advances made to the employee, damaged equipment, other set-offs, reimbursements, etc.

To reduce the potential for litigation, employers should consider obtaining advance, written authorization for any such deductions. Garnishments – Judgment creditors often seek to obtain Continuing Writs Against Salary or Wages against judgment debtors. The creditors first file a Motion for Continuing Writ Against Salary or Wages and serve a copy of it on the debtor’s employer. The employer has 20 calendar days to answer the Motion and begin garnishing wages. Florida courts have held that answers to writs of garnishment must be signed and filed by attorneys admitted to practice within the state. Failure to file a timely answer, signed by an attorney, can lead to entry of a default judgment against the employer—essentially requiring the employer to pay the employee’s debt. The employer should file an answer even if the judgment debtor is no longer an employee.

Upon receipt of the Motion, the employer should immediately begin garnishing the employees’ wages by withholding the amount designated by the Court. The employer must hold on to these funds until it receives an Order from the Court instructing that the funds be released—either to the judgment creditor or back to the employee. The garnishment will continue until the entire judgment, plus interest, has been paid. At the time the Order instructing release of funds is issued, the Clerk of Court will be instructed to send the employer a check for $100 for attorneys’ fees related to filing the answer. This money was paid by the judgment creditor at the time the Motion was filed, and held by the Court.

Employers are also permitted to withhold, for its own administrative costs, $5.00 with the first garnishment and $2.00 with each subsequent garnishment. Unlike some other states, employers only need to file one Answer to each Motion for Continuing Writ Against Salary or Wages in Florida.

other areas which need to be resolved by policy or ordinance:

  • Use of Company (TOWN)  Vehicles and what shall occur in the event of a violation

  • Use of Equipment and what shall occur in the event of violation

  • What shall be done in the event an employee steals money,  property or equipment

  • What shall be done if crimes are not reported

  • What shall happen if the job is not performed in accordance with the job descriptions (i.e. meeting, time frame to improve or pay back or termination)

  • Can an employee, by discussing with the Manager, pay their water/sewer utility bills late without shutting off their water and incurring additional charges?

  • Can exceptions be made to Ordinances, Utility deposits and payments, etc.?

Many insurance companies which have Active Loss Control Programs provide Human Resource manuals for the state in which an employer lives.  Whether FMIT provides such a manual or provides notifications when laws change will have to be something the Town of White Springs finds out.   When there is a legal change to employment practices, usually an Insurer will give those notices and then such notices are given to employees in writing and amended thereto into the Employers Personnel Manual.

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