Monthly Archives: January 2015

Think Your Business is Too Small To Be at Risk For A Cyber Attack? Think Again

Smaller firms tend to make the mistake of thinking that their business interests are not large enough to warrant a cyber-attack, but this is not the case.  It does happen and small firms should do more to take care and protect their networks because cyber-attacks are becoming increasingly common.  Too many managers think that they are too small to warrant attention from hackers, leading cyber security to take a backseat to more pressing business concerns.

In fact, research from the House of Representatives Small Business Subcommittee on Health and Technology showed that 1/5 of all cyber-attacks hit companies with 250 or fewer employees.  Those that do get hit face dire consequences: 60% of them close with six months.  Anyone in business is a target for a cyber-attack.

The first step to reducing your cyber-attack risk has to do with training employees about the risks in the information technology realm.  It’s not necessary to train every employee about the finger details, but people who are aware of the risks tend to be less risky overall in their behavior.  Talk about basic computer protection basics and enhance them as soon as possible.

Your next step should be to create company guidelines about security and technology policy.  Walk through the policies about using personal devices on company networks and ensure that you have a reporting program in place to capture any network changes.  Password policy should be discussed in person and documented with employees so that they know good guidelines for creating a password as well as basic rules like not keeping it on a sticky note nearby.  Enforce protocols for lost or stolen devices and make sure that all employees are clear about the attack risks.

Wage and Hour Disputes Becoming More Common

Employees are spending more time researching what their rights are and looking into lawsuits that can help protect them.  One area where this has led to a sharp uptick in lawsuits is in disputes regarding wage and hour violations.

These lawsuits should not be dismissed or overlooked by management because they can present a serious risk to the company overall.  These lawsuits can cost businesses big time, sometimes in the upwards of hundreds of thousands or millions of dollars where a plaintiff is successful.  Legal settlements frequently include back wages and this can cause a major disruption to your cash flow and profits if you do not respond quickly.

Many of these suits now involve employees who are tipped like bartenders and servers.  A rising issue involves whether these employees are being paid appropriately to complete duties for which they are not tipped.  Sharing tips with hostesses or cooks can also be problematic for tipped employees if those cooks and hostesses are not being paid at the same lower wage, and these lawsuits have increasingly centered upon the concept of employees working off the clock.

National cases involving big employers like Wal-Mart and McDonalds have also spread the word about wage and hour disputes, but the recent recession has also contributed to the problem.  The reason is because many companies cut back on staffing and training/compliance seminars and more employees are loaded with tasks than ever.  More job duties are common across

Wage and hour dispute allegations should be taken seriously by any company who is alleged to have violated the law.  These cases can escalate quickly, so legal consultation should be undertaken as soon as possible.

Who Factors Influence Who Can Be Classified as an Independent Contractor?

Many states, in addition to the IRS, have adopted guidelines and definitions about independent contractors, but there is still confusion about what this means for employers.  In the majority of locations, rules regarding independent contractors relate to what level of control the employer has over a product or service specifically related to whether the employer defines what is being done and how it will be done.

Other principles refer to independent contractor status in relation to how the person is paid.  An individual who is on payroll and receives a regular check will be classified as an employee as opposed to an independent contractor.

In order to determine whether someone should be classified as an independent contractor, there are several other factors to consider, including:

  • Whether the worker can be discharged from employment at any time
  • Whether the worker can choose not to come to work without fear of losing his/her employment
  • If the worker supplies the materials, tools, and equipment to do the job
  • Whether the worker can control the hours of employment
  • Whether the work conditions are temporary or permanent

Misclassifying a worker can have dire ramifications for a company in terms of legal disputes.  An employee or worker who believes that he or she has not been classified correctly can file a legal claim regarding his or her rights.  An employer who has questions about the best way to classify someone should get legal counsel first to determine whether the relationship appears to meet the guidelines to be classified as an employee or independent contractor.  There are legal consequences with regard to defining this relationship in the wrong way, so the circumstances of the employment, the employee’s responsibilities, and other factors should all be evaluated carefully.

The Age of the Drive-By Lawsuit: Title III and Defending Against Vexatious Litigants

The American with Disabilities Act (ADA), as with almost all legislation in this country, is well-intentioned and does in fact serve a very powerful purpose in the modern world.   People who have disabilities that make them differently-abled than most are still citizens with all the rights of their neighbors, and as a result, they deserve to have access to the same services and benefits as everyone else.  Requiring businesses to make reasonable efforts to make their services accessible is in keeping with this country’s overall spirit of egalitarian and fair-minded camaraderie.  After all, no one confined to a wheelchair should be prevented from using a public restroom.

However, as many owners and operators of public-use properties such as hotels, shopping malls, and other facilities have discovered, flaws in the ADA – especially the notorious Title III – make it extremely easy for people with disabilities to file lawsuits designed solely to extract money from the business in question.  These so-called “Drive-By” suits (called such because the plaintiffs rarely have any real desire to use the facilities they are complaining about) have escalated to an epidemic as aggressive and ethically-challenged law firms have realized the profit potential.

The Problem

Title III allows for these suits to be filed when a disabled person finds they cannot enjoy equal use of a facility because the operator/owner hasn’t made the required minimum efforts- such as installing wheelchair ramps for access.  However, several flaws in the law make it an imperfect tool:

  • Currently, complainants are not required to notify the property or business or give it any chance to correct the violations or oversights before a suit is filed. As a result, the first time a business is made aware of problems is often when the lawsuit is served.
  • Plaintiffs are also often able to file claims in State courts to collect additional awards on the same complaint.
  • Nothing stops law firms or even single attorneys from collecting large numbers of plaintiffs complaining about the same properties, often swelling these cases into monumental actions.
  • Plaintiffs cannot legally recoup attorney’s fees unless there is a lawsuit in place, giving them zero reason not to file a suit.

Defending Against Title III

Currently, there are three standard strategies for defending against a Title III lawsuit:

  • An increasing number of judges have demonstrated a willingness to deny attorney’s fees based on a lack of pre-litigation notice. Although the ADA does not require such notice, judges have discretion in awarding fees and are becoming more likely to punish plaintiffs and attorneys they see as being too quick to file a suit when a simple notice might have solved the problem.
  • Many of the plaintiffs involved in these “drive-by” lawsuits are involved in multiple other suits as well, often with many attorneys or with a single firm representing many other disabled plaintiffs. Having these plaintiffs declared “vexatious” by a judge means they cannot file any further suits without the court’s permission.
  • Finally, an attack on standing has been known to work; if it can be demonstrated that a plaintiff has no real intention of ever returning to or utilizing a facility, they have no standing for a complaint under the ADA. These challenges are difficult, but have been successful in certain circumstances.

All American citizens have the right to enjoy public space or public-use facilities equally, and no one would argue otherwise.  However, a flawed law designed to protect those rights has instead created a situation where property owners and operators are not given a fair chance to do the right thing before being forced to pay out large settlements.  Until the law is changed, knowing how to defend against these situations can do wonders to keep businesses afloat and out of trouble.

Employee Handbook Basics

Every employer in the State of Florida is advised to have a set of written policies and procedures collected in what’s commonly called an “Employee Handbook” that is distributed to new hires.  While some very small businesses (with fewer than two or three employees) may feel safe going without this formality, the fact is when you hire an employee, you open yourself to liability, and having written policies can help defend you against claims.

The question of what should be contained in your employee handbook is best directed to a qualified employment law attorney in Florida, who can help analyze your specific business culture, but there are some basics that should always be included.

Basic Background

Your handbook should include a short history of your business, a statement about its goals and culture, and a statement declaring you are an at-will employer.  Your employment law attorney in Florida can help you with the precise wording of these statements.

Office Policies

The handbook should also clearly state your policies regarding harassment, discrimination, and other office behaviors, as well as clearly set out the procedures employees can follow if they find themselves victims of these or any other negative situations.

Employment Mechanics

Your handbook should make clear how employment works, from dress code and performance reviews to pay frequency and procedure, vacation and sick day policies, attendance requirements, bonus structure (if any), and holiday schedule.

Benefits

Your handbook should also include all benefits offered standard to all employees, with clearly-worded language (crafted by a Florida employment law attorney if possible) detailing when employees are eligible for benefits and what those benefits are.

Your employee handbook should be written in simple, clear language and be confined to statements of fact.  The more detailed it is, the more beneficial it is.

Start Defending Against Wage & Hour Lawsuits before They’re Filed

If you own a business that employs people, chances are you will someday be hit with a wage and hour claim by an employee or former employee.  It’s not necessarily because people are mean-spirited or greedy – it’s simply very easy for an employee, especially one whose relationship with their job has soured, to convince themselves that they’ve been wronged.  After all, many employees have a “David and Goliath” attitude towards their employers – you have all the money and power, and they have none.

Defending against these claims is more complicated than other legal problems.  In fact, the best way to defend against such wage and hour claims is to start defending against them before they even begin.

Step One: Hire an Employment Law Attorney in Ft. Lauderdale

Your first step is to consult with an experienced and qualified employment law attorney in Ft. Lauderdale so you can fully understand the policies and the law that you are required to follow.  The worst mistake you can make is violating the law unwittingly.  A qualified attorney can help you set up the policies and record-keeping that establishes your good faith and builds a defense against wage and hour claims long before it becomes necessary.

Step Two: Keep Records

Your next step is to ensure that you have very accurate records of all employee compensation, including

  • all hours worked
  • lunch hours and other breaks
  • vacation days
  • sick days
  • holidays

This information won’t necessarily stop employees from filing claims, but it will be crucial to your defense against them.  Your employment law attorney in Ft. Lauderdale will assist you in investigating the facts of any claim, and establish your good faith and your compliance with all laws.