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Legal Updates


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Preventing and Responding to Workplace Violence 

Many employers are questioning how to protect their employees from violence in the wake of the May 31 shooting in Virginia Beach. Tragically, Virginia Beach is only the most recent instance of an increasing trend of workplace violence. In 2016 alone, there were 500 workplace homicides according to the Bureau of Labor Statistics. The National Safety Council reports approximately 823 workplace deaths resulting from violence in 2017.

The saying, “an ounce of prevention is worth a pound of the cure,” has never been more applicable. In that spirit, implementing policies and procedures to avoid violence in the workplace is critical. The deadliest of these situations typically involve an active shooter, which the U.S. Department of Homeland Security (DHS) defines as someone “actively engaged in killing or attempting to kill people in a confined and populated area.” One way to minimize the risk of an active shooter is to remove, or at least minimize, the number of weapons in the workplace. In Florida, employers may prohibit employees and others from bringing firearms into the workplace. However, the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 mandates that employees must be allowed to keep legally owned firearms inside a locked, private vehicle, even in the employer’s parking lot. Invading an employee’s privacy by asking whether they have a gun in their car, demanding to inspect their vehicle and conditioning employment on whether an employee holds a firearm license are also prohibited. These restrictions do not apply to company-owned vehicles and certain safety-sensitive workplaces are exempt.

 

Additionally, adopting a zero-tolerance policy toward workplace violence sends an important message that employees must adhere to a strict standard of appropriate behavior. This should encompass all forms of violence and threats of violence. Anti-bullying policies may also be beneficial. Victims of long-term bullying may have feelings of being persecuted by others, which can be a potential warning sign of violence. In light of social media’s pervading and ever-growing presence in our lives, many employees need to be informed that workplace conduct policies should extend to online conduct including company email and social media. Early identification of warning signs can also make all the difference in preventing a tragedy. While there is no way to predict an attach, certain behaviors that might signal future violence include: excessive use of alcohol or drugs; unexplained absenteeism or changes in behavior; suicidal comments; persistent complaining about unfair treatment; disproportionately emotional responses to criticism; mood swings; and paranoia. The Sandy Hook Promise organization offers “Know the Signs” programs that include research-based practices to help prevent gun violence. As the group observes, it is important to remember that one warning sign on its own likely does not mean that a person is planning an act of violence. However, when many connected or cumulative signs are observed over time, it could indicate that the person  Employees should be encouraged to report patterns of aberrant behavior, following the “See Something, Say Something” motto. Most mass shootings are planned for six months to a year and included warning signs that were not understood or acted upon.

 

Employers should also consider creating an emergency action plan and providing training exercises with local law enforcement. DHS offers a number of helpful resources, including online training for how to deal with an active shooter. These situations are fluid so it is critical for individuals to be mentally and physically prepared. In particular, you should always be aware of your environment and note the two nearest exits. During an active shooter situation, many experts recommend Run-Hide-Fight response. If there is an accessible escape path, attempt to evacuate the premises. Leave your belongings behind, evacuate regardless of whether others agree to follow, help others escape if possible, and call 911 when you are safe. If evacuation is not possible, find a place to hide. An ideal hiding place should be out of the shooter’s view, provide protection (such as an office with a closed and locked door) and not restrict your options for movement. As a last resort, and only if your life is in imminent danger, attempt to disrupt or incapacitate the shooter.

Obviously, this short summary is only the tip of the iceberg and should not be construed as a comprehensive plan of action. Instead, consider this an introduction to issues for deliberation and resources available for consultation in the effort to prevent, mitigate, and respond to violence. There is no greater tool available to employers than the ability to think and plan ahead.

Brett J. Schneider is managing director of the Palm Beach Office of Weiss Serota Helfman Cole & Bierman and chairs the firm’s labor and employment practice group.

Michael S. Kantor is an associate in the firm’s Fort Lauderdale office.

HRABC Legislative Affairs Director Michael S. Kantor, Esq., specializes in employment law and is available for consultation at legal@hrabc.org should you have any questions.

                                                                                                                                                                                                          


FLSA Overtime Exemption Updates (March 7, 2019)

On March 7, 2019, the Department of Labor announced a new proposed rule that would extend eligibility for overtime pay to approximately 1.1 million additional workers.  The proposed rule would require overtime pay for all employees earning less than $35,308 per year.  Employees who earn more than this threshold amount can still qualify for overtime exemptions if their job duties primarily involve executive, administrative, or professional functions, often called the “white-collar” exemptions.

Unless exempt, employees covered by the Fair Labor Standards Act must receive at least one and one-half times their regular hourly pay rate for all hours worked over 40 in a workweek.  This includes both salaried and hourly employees.  

Employers should carefully examine the salaries for any employees who are currently deemed exempt from overtime requirements to be prepared for the proposed rule change.  A number of strategies are available to businesses to ensure that reclassification of employees does not result in additional payroll expenses.  While compliance with the new proposed rule is not required yet, this presents a good opportunity for employers to audit whether their currently exempt employees actually satisfy the duties test for the white-collar exemptions.

HRABC Legislative Affairs Director Michael S. Kantor, Esq., specializes in employment law and is available for consultation at legal@hrabc.org should you have any questions.


 

 

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