The new Defend Trade Secrets Act of 2016 (“DTSA”) offers employers another way to protect trade secrets from future disclosure. The DTSA was signed into law earlier this year on May 11, 2016. The DTSA provides a source of federal protection for employers by creating the first federal civil cause of action for trade secret misappropriation. Prior to the enactment of the DTSA, the only remedies available for an employer whose employee inappropriately disclosed trade secrets were any applicable state statutes and breach of contract claims.
The DTSA provides new protections for employers by allowing temporary ex parte seizure of property in question under extraordinary circumstances. Other remedies available for misappropriation of trade secrets under the DTSA include injunctions, monetary damages (for actual monetary loss and unjust enrichment), exemplary damages (up to two times the amount of actual monetary loss and unjust enrichment) if the theft was willful and malicious, as well as attorneys’ fees for the prevailing party. In order to be eligible for exemplary damages and attorneys’ fees under the DTSA, owners of trade secrets must provide employees specific advance notice of the employee immunity provisions in the DTSA.
This notice must be in any “contract or agreement with an employee that governs the use of a trade secret or other confidential information.” In addition to employees, the notice provision also applies to independent contractors and consultants. Employers who fail to provide the required notice forfeit recovery of potential attorneys’ fees or exemplary damages under the DTSA.
The notice provision applies to contracts and agreements entered into or updated after the effective date of the DTSA (May 11, 2016). Employers should be proactive and update employment agreements (for new and continuing employees), consulting agreements, restrictive covenant agreements, non-disclosure agreements, confidentiality agreements, policies, and handbooks to receive the protections available under the DTSA.
Before implementing changes, employers should consult with an attorney about whether and how to effectively modify employee agreements or circulate new policies. The DTSA also has other requirements that must be met. The above is only a summary of some of the options that may be available to employers and is not intended to be legal advice. If you have specific questions or would like legal advice, please feel free to contact Janet McEnery at email@example.com (direct line 813-273-4307), Andrew McLaughlin at firstname.lastname@example.org (direct line 813-273-4208), or Ashleigh Shelver at email@example.com (direct line 813-273-4363).
 The Defend Trade Secrets Act, S. 1890, 114th Cong. § 3(a) (2016).
Bertha was one of your best employees; she was always on time, easy to get along with, and performed a crucial component of your operation. However, after Bertha suffered a fall one weekend, back pain became an issue and she requested leave pursuant to the Family and Medical Leave Act of 1993 (the “FMLA”). As a result, and after receiving proper medical certification, you grant Bertha 12 weeks of FMLA leave; however, at the end of the 12-week period, Bertha expresses to you that her back is still not healed and that she needs additional leave. Although you would love to retain Bertha as an employee, her position is crucial to your continued success and must be operational. In considering your options, you are faced with the question: can you terminate Bertha for failing to return to work at the end of FMLA leave?
Technically, all entitlements and rights under the FMLA cease at the conclusion of the 12-week FMLA period; however, employers must use caution when considering terminating an employee who is unable, or fails, to return at the conclusion of FMLA leave. Based on amendments to the ADA as well as other applicable regulations, at the expiration of FMLA leave, employers must now consider if the employee has a disability for which a reasonable accommodation can be made; including, but not limited to, the granting of additional leave time. Employers must engage in the interactive process to determine if a reasonable accommodation, such as additional leave, is possible. By engaging in this process, the Employer can attempt to avoid liability under the ADA. Consequently, if Bertha’s back injury is a disability for which a reasonable accommodation can be granted, it would appear that you may have to grant her additional leave; however, such an accommodation is not required if it would pose an undue hardship to your company.
If an employee requests additional leave (after FMLA has expired) and has a disability for which a reasonable accommodation can be provided, in deciding whether to grant the accommodation (i.e., additional leave), an employer can consider how the additional leave would impact the employer’s business and operations. If the granting of the additional leave would result in things such as significant monetary losses, lower quality, missed timelines, etc., the accommodation may be an undue burden and, as such, the employer may deny the employee’s request. However, it is important that if additional leave is denied, the employer memorialize such denial in a letter that accurately articulates how the additional leave would significantly impact his/her business.
Based on the foregoing, your decision to terminate an employee after the expiration of FMLA leave depends on, among other things, 1) any disability of the employee, 2) whether a reasonable accommodation can be made, and 3) whether such a reasonable accommodation would cause your business an undue hardship. Additionally, an employer must also consider other variables such how other non-FMLA leave employees are treated upon returning to work (which could potentially give rise to FMLA discrimination claim). As a result, before making the decision to terminate an employee who requested additional leave upon the depletion of their FMLA leave, it is in your best interest to seek the advice of experienced and knowledgeable counsel. If you have specific questions or would like legal advice regarding this issue or any other labor or employment law issue, please feel free to contact Janet McEnery at firstname.lastname@example.org (direct line 813-273-4307), Andrew McLaughlin at email@example.com (direct line 813-273-4208, or Thomas Farrior at firstname.lastname@example.org (direct line 813-273-4232).
The Florida Department of Economic Opportunity (“DEO”) calculates the minimum wage rate each year based on certain changes in the Consumer Price Index. The DEO just announced that Florida’s minimum wage will increase from $8.05 an hour to $8.10 an hour as of January 1, 2017. Employers of tipped employees (who meet the criteria for the tip credit) will be required to pay tipped employees a direct hourly wage of at least $5.08 an hour as of January 1, 2017. This is an increase from the current minimum wage for tipped employees, which is $5.03.
The increase to Florida’s minimum wage does not have any impact on the changes to the Fair Labor Standards Act which requires that certain exempt employees be paid a guaranteed minimum salary of at least $913.00 per week ($47,476.00 per year), which are currently set to be effective December 1, 2016 (as discussed in our July 8, 2016 blog). In addition to staying current with upcoming changes to the minimum wage and salary requirements, employers also must post a minimum wage notice and should have any tipped employees sign a new tip notice. The minimum wage poster can be downloaded from DEO’s website.
Florida’s Minimum Wage Act and the Fair Labor Standards Act have other requirements with must be met. The above are only summaries of certain provisions of these laws and are not intended to be legal advice. If you have any questions about how the Florida Minimum Wage Act and Fair Labor Standards Act affect your organization, please feel free to contact Janet McEnery at email@example.com (direct line: 813-273-4307), Andrew McLaughlin at firstname.lastname@example.org (direct line: 813-273-4208), or Ashleigh Shelver at email@example.com (direct line: 813-273-4363).
The DOL released its final regulations which raise the salary required for an employee to be exempt from overtime effective December 1, 2016. These regulations increase the salary requirements from $455 a week to $913 a week. This means that starting December 1, 2016, any employee who makes less than $47,476 a year must be paid overtime with few exceptions. The new regulations also allow employers to count certain bonuses for up to 10% towards the threshold so long as the bonuses are paid at least quarterly.
Employers with salaried employees who do not earn $913 in salary per week have several options. The two simplest options are to either raise an exempt employee’s salary above this limit or convert the employee to an hourly basis. If the employee is converted to an hourly basis, the employer must track all time worked (including time spent checking email on their phone) and pay overtime for any hours worked over 40 during a week. Employers also have other options which should be explored.
For example, employers could implement a fluctuating workweek plan (“FWW”). Under the FWW, an employer pays an employee a set salary no matter how many or how few hours the employee works. If the employee works over 40 hours a week, the employer must pay an additional ½ time for those hours based on the employees effective hourly rate for that week which will fluctuate based on the number of hours worked that particular week. The effective hourly rate for each week must exceed minimum wage. For example, if an employee is paid $600 per week and works 60 hours in a week, the employees effective hourly rate would be $10 per hour ($600/60 hours worked). Under a valid FWW plan, the employee would be entitled to an additional $100 of overtime pay ( ½ x $10 x 20). If the employee instead only worked 50 hours, the employee’s effective hourly rate would be $12 per hour and the employee would be entitled to $60 of overtime pay ( ½ x $12 x 10).
In addition, employees with extremely unpredictable schedules may be eligible for a Belo arrangement. Under a Belo arrangement, the employer and employee agree in writing to a set guaranteed payment each week covering all hours worked by the employee up to the stated amount (not to exceed 60 hours). The employer only pays overtime if the employee works more than the hours covered by the agreement.
Both the FWW and Belo arrangements have other requirements which must be met. The above are only summaries of some of the options which may be available to employers and is not intended to be legal advice. If you have specific questions or would like legal advice, please feel free to contact either Janet McEnery at firstname.lastname@example.org (direct line 813-273-4307) or Andrew McLaughlin at email@example.com (direct line 813-273-4208).