Topics relating to Employment | St. Petersburg, FL https://www.stpetelawgroup.com/tag/employment/ St Petersburg's Oldest Full Service Law Firm Tue, 06 Jul 2021 16:08:11 +0000 en-US hourly 1 https://www.stpetelawgroup.com/wp-content/uploads/favicon-150x150.png Topics relating to Employment | St. Petersburg, FL https://www.stpetelawgroup.com/tag/employment/ 32 32 Caitlin Szematowicz Sworn in as President of the Barney Masterson American Inn of Court https://www.stpetelawgroup.com/caitlin-szematowicz-sworn-in-as-president-of-the-barney-masterson-american-inn-of-court/ Tue, 06 Jul 2021 14:44:59 +0000 http://3.129.126.197/?p=13467 Caitlin Szematowicz, partner of Battaglia, Ross, Dicus & McQuaid, P.A., was recently sworn in as President of the Barney Masterson American Inn of Court.

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]]> Caitlin Szematowicz, partner of Battaglia, Ross, Dicus & McQuaid, P.A., was recently sworn in as President of the Barney Masterson American Inn of Court. Her husband Judge Brett Szematowicz, a Pinellas County Court Judge, was also sworn in as Co-President. The Barney Masterson American Inn of Court serves Florida’s Sixth Judicial Circuit, the Second District Court of Appeals, and the United States District Court, Middle District of Florida, Tampa Division

Caitlin Szematowicz’s Background of Leadership Continues

Caitlin Szematowicz has also previously served as President of the St. Petersburg Bar Foundation and President of the Pinellas County Trial Lawyers Association. Her role as President of the Barney Masterson American Inn of Court marks her third presidency of a local Pinellas County voluntary bar organization. Caitlin was sworn in by the Honorable Pamela Campbell at the Barney Masterson American Inn of Court Annual Banquet at the Safety Harbor Resort and Spa. She is excited to serve as co-president of the Inn, and she looks forward to a great year serving as co-president of the Barney Masterson American Inn of Court. Caitlin’s previous positions with the Barney Masterson American Inn of Court include Membership Coordinator, Secretary, and Executive Director. In 2012, Caitlin Szematowicz was awarded The Judge Thomas E. Penick Jr. “The Rock” Award by the Barney Masterson American Inn of Court. The Barney Masterson American Inn of Court began awarding “The Rock” award in June 2004, and it is presented annually by the Barney Masterson Inn of Court to a lawyer with less than five years in practice who has provided exceptional service to the community. The award is named in honor of Judge Thomas E. Penick, Jr., who was one of the four founders of the Barney Masterson Inn of Court and who believed strongly in a lawyer’s duty to provide service to the community. “The Rock” is considered a once in a lifetime award and symbolizes the idea that community service is the bedrock and basic foundation of a strong community.

Barney Masterson Inn of Court Has Deep Roots in the Legal Community

The Barney Masterson American Inn of Court generally has between sixty five and seventy five active members, divided into three classifications. Masters include lawyers with fifteen or more years of experience and judges of various courts. Barristers include lawyers with more than four but less than fourteen years of experience. Associates include lawyers with less than four years of experience. Students attending law school, or “pupils”, are also admitted to the Inn on a limited basis through a partnership with Stetson University College of Law. The Inn also has Sustaining Members, which are members who have been members of the Barney Masterson American Inn of Court for a period of three years. Each member is selected for a one-year term. Members are selected each year through the application process by the Executive Committee. The formation of the Barney Masterson American Inn of Court is largely attributed to the efforts of Judge William Castagna in the 1980s, who worked to create and build a Pinellas County Inn of Court. The Barney Masterson American Inn of Court is a general inn which strives to focus on issues of importance to lawyers in Pinellas County, regardless of their practice area (civil or criminal, family or commercial, bankruptcy or administrative law) or nature of the practice (private practice or government entity, large firm or solo practitioner). The Barney Masterson Inn of Court’s focus is on litigation. The Barney Masterson Inn covers all areas of litigation that may be of interest to its members, and it tries to balance the educational aspects of its programs with the goals of mentoring and professionalism. The Barney Masterson American Inn of Court is composed of law students, lawyers, and judges. The Barney Masterson American Inn of Court has received the Achieving Excellence Platinum Level Status from the American Inn of Court from 2017 through the present. Benefits and responsibilities of the Barney Masterson American Inn of Court include networking with local attorneys and the judiciary, mentorship opportunities, CLE credits, general membership meetings and events, active participation in assigned pupilage groups, and membership to the American Inns of Court and subscription to the Bencher. The Barney Masterson American Inn of Court also supports the Mike Barbetta Scholarship, which is a scholarship fund for those attorneys whose professional ideals align with the American Inns of Court, to promote the highest levels of professionalism in the practice of law, and who desire to become an Active Member of the Inn but could afford to do so. American Inns of Court are one of the fastest growing legal movements in the country. There are over three hundred and fifty American Inns of Court in all fifty states. American Inns of Court were created in the 1970s and were modeled after English Inns of Court. American Inns of Court are designed to improve the skills, professionalism and ethics of the bench and bar.

Caitlin Szematowicz Continues to be a Shining Star at Battaglia, Ross, Dicus & McQuaid, P.A.

Caitlin Szematowicz is a Partner and Shareholder with the law firm of Battaglia, Ross, Dicus & McQuaid, P.A. She practices in the areas of Civil and Commercial Litigation, Appeals, and Employment Law. Caitlin joined the firm in August 2012. Caitlin graduated magna cum laude from the University of Florida Levin College of Law in May 2012. Caitlin Szematowicz is recognized as a Super Lawyers “Rising Star” and was named a Rising Star in 2018, 2019, 2020, and 2021. She is actively involved in the legal community, and her roles include Past President of the Pinellas County Trial Lawyers Association and St. Petersburg Bar Foundation She also serves on the St. Petersburg Bar Foundation’s annual professionalism seminar committee and is appointed to the Sixth Judicial Circuit’s Professionalism Committee. Caitlin Szematowicz was selected as a speaker for the Florida Bar’s “Practicing with Professionalism CLE” in both 2014 and 2016. Caitlin has also chaired numerous events for the St. Petersburg Bar Caitlin Szematowicz is a member of the Florida Bar. She is also admitted to practice in the Eleventh Circuit Court of Appeals, U.S. District Court of the Middle District of Florida, and Florida Middle District Bankruptcy Court.

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]]> Employment Discrimination https://www.stpetelawgroup.com/employment-discrimination/ Wed, 13 May 2020 15:28:45 +0000 http://54.160.171.51/?p=2657 This article covers people that have been the targets of employment discrimination or employers that have received a charge of discrimination.

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]]> Federal Level: The Equal Employment Opportunity Commission The U.S. Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing laws which make it illegal to discriminate against an employee. Types of discrimination can include age discrimination, disability discrimination, racial discrimination, gender discrimination or sex discrimination (which includes pregnancy discrimination), national origin discrimination, genetic discrimination, and religious discrimination. It is also illegal to engage in harassment. Harassment occurs when an employee is harassed because of his or her race, sex, age, disability, race, gender, sex, genetics, national origin, or religion. It is also illegal for an employer to take retaliatory action – otherwise known as retaliation – against a person for complaining of discrimination These laws apply to hiring, firing, promotions, and other aspects of the employment relationship. The EEOC has the authority to investigate charges of discrimination (including harassment and retaliation) against certain employers. Namely, most employers who have at least fifteen employees are covered within the EEOC’s jurisdiction. If an employee or job applicant maintains that he or she has been subjected to discrimination, the employee or job applicant can file what is known as a charge of discrimination against the employer. The charge of discrimination must include a description of the action the employer took which the employee/applicant felt was discriminatory in nature and the type of discrimination. Once a charge of discrimination is filed, the EEOC will investigate the claim. The EEOC will investigate the matter to determine whether there is reasonable cause to believe that discrimination occurred. When a charge is filed against an employer for discrimination, the EEOC will notify the entity being charged (the employer) within ten days of the charge being filed. This notification to the employer will include information about how the employer can access the EEOC’s online portal, respond to the charge, and more. During the investigation, the employee/job applicant (known as the charging party) and the employer (known as the respondent) will have the opportunity to provide information related to the charge. The EEOC will request the respondent employer to submit a statement of position, which is essentially the employer’s response to the discrimination allegations. The EEOC may request the employer respond to what is referred to as a Request for Information, which asks the employer to provide certain documents. The EEOC may further conduct an on-site visit. The EEOC may also conduct interviews. Once the investigation stage is complete, the EEOC will make its determination as to whether there is reasonable cause to believe that discrimination occurred. If the EEOC determines that there is reasonable cause to believe discrimination occurred, it will issue a letter of determination which formally states that there is reasonable to believe discrimination occurred. The EEOC will invite both parties to seek to resolve the charge through a conciliation process, which is similar to mediation. As stated, if the EEOC determines that discrimination occurred, the EEOC will try to settle the charges through conciliation. Likewise, it is important to know that either party can request that the parties engage in mediation during the investigation/charging process. While the parties are not required to participate in mediation, it is certainly encouraged. If the parties settle the matter, they will request a dismissal of the charge. If conciliation is unsuccessful (meaning the charges cannot be settled between the parties), and the EEOC has determined reasonable cause to believe discrimination occurred, then the EEOC can enforce the violations by filing a lawsuit. If it decides not to litigate the matter, the charging party will receive a notice of right to sue letter. If the EEOC determines that it has not found reasonable cause to believe that discrimination occurred, it will issue a notice which is called a dismissal and notice of rights. The notice informs the employee or applicant that he or she has the right to file a lawsuit in federal court within ninety days. This means that the employee can then file a lawsuit regarding his or her discrimination claim.

State Level: The Florida Commission on Human Relations

Most states and local agencies also have laws which prohibit discrimination – including the State of Florida. The Florida legislature created the Florida Commission on Humans Relations (FCHR) to address discrimination and enforce the Florida Civil Rights Act. If an employee maintains that he or she has been subjected to a charge of discrimination, the employee can file a complaint with the FCHR. The FCHR also has a questionnaire available which solicits information about claims of employment discrimination. This questionnaire assists the FCHR in determining whether it has jurisdiction over the discrimination claims. The FCHR will similarly review and investigate the charge of discrimination (including color, sex, race, religion, national origin, disability, marital status, and age) and reach a decision as to the claim.

Local Level: The Pinellas County Office of Human Rights

On a more local level, the Pinellas County Office of Human Rights was established to protect residents of Pinellas County from cases of discrimination – including employment discrimination. The Pinellas County Office of Human Rights administers Chapter 70 of the Pinellas County Code of Ordinances. This Code prohibits discrimination in employment because of race, color, religion, sex (including pregnancy discrimination and sexual harassment), sexual orientation, national origin, age, marital status, or disability. To file a complaint with the Pinellas County Office of Human Rights (PCHR), the employee or job applicant completes what is known as an “Employment Discrimination Questionnaire.” The PCHR will investigate the employment discrimination complaint, facilitate conciliation of an employment discrimination complaint, and encourage mediation. The PCHR also conducts training for employers.

Know Your Rights

A claim may be filed with the PCHR, FCHR, or it can be dual-filed with both the FCHR and the EEOC. It is important to know that an employee (or applicant) is required to file a charge of discrimination before it can file a lawsuit. Further, there are time limits for filing a claim. You must ensure that your claim is timely filed. Likewise, if you are an employer who has received a charge of discrimination or similar compliant, it is important to respond to the charge and provide as much information to defend the charge of discrimination.

Employment Law Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

If you feel that you have been the target of employment discrimination – or if you are an employer that has received a charge of discrimination – contact the employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. today. Our experienced employment lawyers can speak with you regarding your situation.

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]]> Recent Executive Orders and Local Announcements Regarding Business Closures and Openings https://www.stpetelawgroup.com/business-closures-and-openings/ Mon, 04 May 2020 14:15:20 +0000 http://54.160.171.51/?p=2637 Ron DeSantis recently announced that Florida will start lifting stay-at-home orders, local businesses are questioning whether they can now open their doors.

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]]> certain non-essential businesses must close during the coronavirus pandemic. However, with State of Florida Governor Ron DeSantis recently announcing that Florida will start lifting stay-at-home orders, many local businesses are questioning whether they can now open their doors for business. Indeed, on April 29, 2020, Florida Governor Ron DeSantis issued Executive Order # 2020-112 – Phase One. Safe. Smart. Step-by-Step. Plan for Florida’s Recovery. This article will review the sections of Executive Order 20-112: Phase 1 which apply to business closures, business openings, business restrictions, and other related issues. This article will also review Pinellas County’s recent press announcement related to business closures, openings and restrictions.

Executive Order 2020-112: Phase One

“Executive Order # 2020-112 – Phase One. Safe. Smart. Step-by-Step. Plan for Florida’s Recovery.” goes into effect on May 4, 2020. In pertinent part, Executive Order 20-112 sets forth the following restrictions for businesses as addressed by previous Executive Orders:
  1. Bars, pubs and nightclubs that derive more than fifty percent of gross revenue from the sale of alcoholic beverages shall continue to suspend the sale of alcoholic beverages for on-premises consumption.
  2. Restaurants and food establishments licensed may allow on-premises consumption of food and beverage, so long as they adopt appropriate social distancing measures and limit their indoor occupancy to no more than 25 percent of their building occupancy. The Executive Order further provides that outdoor seating is permissible with appropriate social distancing. Appropriate social distancing requires maintaining a minimum of six feet between parties, only seating parties of ten or fewer people and keeping bar counters closed to seating.
  3. Gyms and fitness centers shall remain closed.
  4. The prohibition on vacation rentals still remains in effect.

Executive Order 20-112 also sets forth the following procedures applicable to other business services affected by previous Executive Orders:

  1. In-store retail sales establishments may open storefronts if they operate at no more than twenty five percent of their building occupancy and abide by the safety guidelines issued by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA).
  2. Museums and libraries may open at no more than twenty-five percent of their building occupancy provided that local public museums and local public libraries may operate only if permitted by local government, and any components of museums or libraries that have interactive functions or exhibits, including child play areas, remain closed.
Executive Order 20-112 further provides that hospital ambulatory surgical centers, office surgery centers, dental offices, orthodontic offices, endodontic offices or other health care practitioners’ offices may perform the elective procedures which were previously prohibited by Executive Order 20-72; however, these electric procedures may resume only if:
  1. The facility has the capacity to immediately convert additional facility-identified surgical and intensive care beds for treatment of COVID-19 patients in a surge capacity situation;
  2. The facility has adequate personal protective equipment to complete all medical procedures and respond to COVID-19 treatment needs, without the facility seeking any additional federal or state assistance regarding personal protective equipment supplies;
  3. The facility has not sought any additional federal, state, or local government assistance regarding personal protective equipment supplies since resuming elective procedures; and
  4. The facility has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities and other long-term care residential provider.
Executive Order 20-112 also provides that while all persons in the State of Florida shall continue to limit their personal interactions outside their home, persons may provide or obtain all services and activities which are currently allowed (for instance, those that are included as activities set forth in Executive Order 20-91). However, those persons shall continue to follow safety guidelines issued by the CDC and OSHA. The Executive Order states that violations of this Executive Order amount to a second degree misdemeanor and is punishable by imprisonment not to exceed sixty days, a fine not to exceed five hundred dollars, or both.

Pinellas County Announcements

Pinellas County has further elaborated on certain businesses which may open and must remain closed in Pinellas County Florida. On May 1, 2020, Pinellas County gave a press release announcing that the following activities and businesses pose a higher risk of transmission and thus will remain prohibited or closed during Phase 1:
  1. Concerts;
  2. Music halls;
  3. Bars;
  4. Pubs;
  5. Nightclubs;
  6. Gyms;
  7. Dance studios;
  8. Yoga studios;
  9. Amusement parks;
  10. Waterparks;
  11. Vacation rentals; and
  12. personal services such as haircuts (which would include barbershops, hair spas, and hair salons);
  13. personal services such as nail salons.

On May 1, 2020, Pinellas County also announced the following:

  1. Restaurants and food establishments may reopen dining areas with a maximum patron occupancy of twenty-five percent of the building capacity. Outdoor seating is allowed without capacity percentage limitations. Bar counter seating must remain closed.
  2. Many other nonessential retail businesses that have been closed to foot traffic may resume at limited capacity using social distancing principles.
  3. In-store activities can resume to a maximum of twenty-five percent patron occupancy of the building capacity.
  4. Pet grooming and car washes are specifically among the businesses that may operate starting Monday, May 4, 2020.
  5. The County’s guidance strongly encourages residents to wear masks at indoor businesses like grocery and retail stores.
  6. Museums and libraries may reopen to a patron occupancy of twenty-five percent of the stated building capacity, but interactive functions and exhibits and child play areas must stay closed. Cities may decide to keep museums and libraries closed.
  7. Curbside pickup and delivery by businesses is allowed.

Ensure Compliance

More orders will likely follow. It is important that businesses ensure compliance with the Governor’s Executive Orders and the Pinellas County Board of County Commissioners’ Orders. Businesses who do not comply with these Orders can face an order to close. Violators can also face criminal fines or penalties. The employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. hope that you remain healthy and safe during these difficult times. If you are in need of legal assistance please don’t hesitate to contact us for a consultation.

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]]> Recent Executive Orders Regarding the Coronavirus Pandemic https://www.stpetelawgroup.com/recent-executive-orders-regarding-the-coronavirus-pandemic/ Sat, 02 May 2020 19:41:00 +0000 http://54.160.171.51/?p=2634 This article will review Executive Order 20-111: Limited Extension of Essential Services and Activities and Vacation Rental Prohibition.

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]]> Executive Order 20-111 On April 29, 2020, Florida Governor Ron DeSantis issued two executive orders: (1) # 2020-111 Executive Order re: Limited Extension of Essential Services and Activities and Vacation Rental Prohibition and (2) # 2020-112 Executive Order re: Phase 1: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery. This article will review Executive Order 20-111: Limited Extension of Essential Services and Activities and Vacation Rental Prohibition. The entirety of Executive Order 20-111 is that it extends two previously-entered Executive Orders: Executive Orders 20-87 and 20-91. The first executive order which was extended by Executive Order 20-111 is Executive Order 20-87. Executive Order 20-111 extends this previous executive order until May 4, 2020. Further, Executive Order 20-111 specifically provides that once May 4, 2020 occurs, Executive Order 20-87 will then be extended by a subsequent order. Executive Order 20-87 pertains to vacation rental closures. The second and last executive order which was extended is Executive Order 20-91 (which was also amended by Executive Order 20-92) until May 4, 2020. Executive Order 20-91 pertains to essential services and activities during the COVID-19 emergency.

Executive Order 20-87

Executive Order 20-87 noted that Florida is experiencing an increase in individuals coming to Florida from out-of-state locations and that Florida vacation rentals and third-party platforms advertising vacation rentals present an attractive lodging destination for out-of-state individuals. Accordingly, Florida Governor Ron DeSantis ordered that all parties engaged in renting vacation rentals properties are to suspend vacation rental operations. Pursuant to the Executive Order, vacation rentals are prohibited from making new reservations or bookings, and renters shall not accept new guests for the duration of the order. This Executive Order applies to the rental of any house, condominium, cooperative, or dwelling unit that is also a transient public lodging establishment (i) which is rented out for periods of less than thirty days or one month, (2) which is advertised or held out to the public as a place regularly rented to guests, or (3) which is otherwise regulated as a vacation rental pursuant to the Florida Statutes. The Executive Order specifically states it does not apply to hotels, motels, inns, resorts, non-transient public lodging establishments, timeshare projects, long-term rentals, rental stays where the guests were currently staying in the rental, and rentals to persons who were performing military, emergency, governmental, health or infrastructure response, or travelers engaged in non-vacation commercial activities. The Executive Order also addressed violations of the Order. Such violations include that Florida’s Department of Business and Professional Regulation will revoke the vacation rental license of any party that violates the order or advertises for vacation rental opportunities during the order. Violations also include that parties that violate the order – or attempt to violate the order through advertising or means of solicitation – may be charged with a second-degree misdemeanor. Again, it is imperative to note that Executive Order 20-111 provides that once the extension of Executive Order 20-87 expires at 12:01 a.m. on May 4, 2020, the Order will then be extended by a subsequent order.

Executive Order 20-91

Executive Order 20-91 became effective April 3, 2020, and it was subsequently amended by Executive Order 20-92 to supersede any conflicting official action or order issued by local officials in response to COVID-19. The order was originally set to expire on April 30, 2020, and it provides that Executive Order 20-68 (bars, restaurants) and Executive Order 20-71 (alcohol sales, restaurants) remain in effect through the duration of Executive Order 20-52, including any extensions. The Executive Order provides that senior citizens and individuals with a significant underlying medical condition shall stay at home and take all measures to limit the risk of COVID-10. Executive Order 20-91 also orders that all persons shall limit their movements and interactions outside of their home to do only those necessary to obtain or provide essential services or conduct essential activities. This Executive Order defines “essential services” as (i) those set forth in the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, v. 2 (March 28, 2020) and any subsequent lists published, (ii) those businesses and activities as designated by Executive Order 20-89 and its attachments (which consists of a list propounded by Miami-Dade County in multiple orders), and (iii) those other “essential services” which may be added under this order with the approval of the State Coordinating Officer and in close coordination with the State Health Officer. Further, the Executive Order 20-91 expressly states that nothing in this order prohibits individuals from working from home, and individuals are encouraged to work from home. Executive Order 20-91 limits “essential activities” to (1) attending religious services, (2) participating in recreational activities (consistent with social distancing guidelines; examples include walking, biking, hiking, fishing, hunting, running, or swimming;), (3) taking care of pets, (4) carrying for or assisting a loved one of friend. The Executive Order specifically said that a social gathering in a public space is not an essential activity. For Pinellas County residents, it is important to note that subsequent to Executive Order 20-91, the Pinellas County Board of County Commissioners issued Resolution 20-23. This order provided that any retail business, operation, or organization (“business”) which is not within the category of “essential services” or “essential activities” pursuant to Executive Order 20-91 must close. Any businesses which continue to operate pursuant to 20-91 must – to the maximum extent possible – implement and comply with the current CDC guidance on social distancing and hazard mitigation (including personal proximity, sanitation, and hygiene). Further, the Pinellas County Sheriff’s Department and Pinellas County Board of County Commissioners subsequently issued a “State of Florida & Pinellas County ‘Safer-At-Home Guidance’” which provides insight on what non-essential businesses shall close in Pinellas County under the Governor’s Executive Order 20-91 and the Pinellas County Board of County Commissioners’ Order.

Battaglia, Ross, Dicus, & McQuaid, P.A. is Here for You

The business attorneys at the law firm of Battaglia, Ross, Dicus, & McQuaid, P.A. are closely monitoring the coronavirus pandemic. We hope that you remain healthy and safe during these difficult times.

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]]> Individual Liability for Unpaid Minimum Wage and Overtime Claims https://www.stpetelawgroup.com/individual-liability-for-unpaid-minimum-wage-and-overtime-claims/ Mon, 10 Feb 2020 13:13:51 +0000 http://54.160.171.51/?p=2429 Did you know that if you have managerial authority of a company – such as being an officer, owner, or director of a company – that you may be individually liable for an employee’s unpaid wages and/or overtime wages? The Fair Labor Standards Act (“FLSA”) establishes minimum wage and overtime requirements that all employers are […]

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]]> individually liable for an employee’s unpaid wages and/or overtime wages? The Fair Labor Standards Act (“FLSA”) establishes minimum wage and overtime requirements that all employers are required to follow. The FLSA also defines an employer broadly. Under the FLSA, an employer includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The FLSA thus contemplates lawsuits against any person who acts on behalf of a corporate employer and who asserts control over the conditions of the employee’s employment. This definition of employer has been interpreted to generally mean anyone who has supervisory power over other employees. It is for this reason that under the FLSA a plaintiff may elect to directly sue officers, owners, and directors of the corporate employer in addition to the corporate employer. Essentially, what this means is that under the FLSA, an individual may be liable for unpaid wages and overtime if they exercise significant control over the company’s operations. Whether an individual is liable under the FLSA is analyzed on a case-by-case basis, since the statute does not include a bright-line test. However, to be personally liable, an officer must either be involved in the day-to-day operation of the company or have some direct responsibility for the supervision of the employee.

How to Determine If an Individual Is Liable Under the FLSA

To make this determination of whether an individual is liable under the FLSA, the courts in unpaid wage cases may look at factors such as:
  • whether the individual has a significant ownership interest in the corporation;
  • whether the individual has personal responsibility for the decision that led to the conduct which allegedly violated the statute;
  • whether the individual had control of significant aspects of the corporation’s day-to-day operations, including the compensation of employees, or whether the individual is responsible for day-to-day management of the company;
  • whether the individual has the responsibility and/or the power to maintain employment records;
  • whether the individual is responsible for the operations of company;
  • whether the individual is responsible for setting the pay policies or whether the employer is responsible for setting the pay practices;
  • whether the individual is responsible for setting the wages of the employees and/or has the power to determine salaries, and
  • any other signs of operational control that demonstrate control over significant aspects of the corporation’s day-today functions.
Federal courts further look to the economic reality of the relationship between the parties in determining whether an individual defendant is an “employer” subject to FLSA liability. This test examines whether the individual: (1) has the power to hire and fire employees, (2) supervises and controls employee work schedules or conditions of employment, (3) determines the rate and method of payment (in other words, the individual is responsible for setting the employer’s pay), and (4) maintains employment records. The case law in the Eleventh Circuit – the controlling federal appellate court in Florida – has previously looked to whether the individual controls the financial affairs and exercises substantial supervisory powers. In fact, an officer, owner, director, and/or manager can also be liable for damages under a general theory known as “piercing of the corporate veil.” The result of piercing the corporate veil means that a corporation’s shareholder becomes liable for the corporate liabilities. The Eleventh Circuit held in Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011) that to state a cause of action for piercing the corporate veil, a plaintiff must show the following factors:
  • the individual shareholder dominated and controlled the corporation to such an extent that the shareholders were alter egos of the corporation;
  • the corporate form was used for an improper purpose; and
  • the improper use of corporate form caused injury to the claimant.
If the plaintiff fails to allege improper conduct such as fraud in the formation or use of the corporation, there is a failure to allege sufficient facts to proceed under an alter ego theory, and the case will be dismissed. The plaintiff must show the corporation is the alter ego of the shareholders and that it was employed for fraudulent or misleading purposes.

What to Do If Faced With an Unpaid Wage Lawsuit

If you are an individual faced with an unpaid wage lawsuit and the plaintiff has sued you individually, it is very important to meet with an experienced employment law attorney who can review and aggressively defend the lawsuit. If the plaintiff has alleged insufficient facts or cannot establish that they are entitled to judgment as a matter of law, then you may be entitled to a dismissal of the case or a judgment without the necessity of a trial. In fact, there are numerous labor & employment cases where an individual was sued for liability for unpaid wages or overtime, and the court found that there was no liability. It is important to have an experienced employment attorney who is familiar with this case law. For instance, if the individual does not have operational control of significant aspects of a company’s day-to-day functions, then that individual is not an FLSA employer. This body of case law has held that no individual liability lies where the individual did not take such an active role as to be held personally responsible: the individual did not arrange contracts, manage day-to-day operations, or oversee employee compensation. Another case found that no individual liability existed when the individual did not direct the day-to-day operations of the business, did not set employee schedules, did not contract with vendors or employees, and could not hire or fire employees. It is important to ensure that as a company, you are complying with all wage and overtime laws. Not only can your company face a lawsuit for a violation, but the officer, owners, directors, and/or managers can face exposure as well. The law firm of Battaglia, Ross, Dicus & McQuaid, P.A. handles and defends unpaid wage and overtime wage claims. For more information, please contact our office at 727-381-2300. Our labor law attorneys will provide a free initial consultation and will aggressively represent your interests.

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