TCPA Recent Developments

By Andrew W. McLaughlin

Andrew McLaughlin

Recently there has been an increase in claims under the Telephone Consumer Protection Act (“TCPA”). The TCPA places restrictions on when an organization can make calls to individuals using an autodialer. With limited exceptions, the statute prohibits organizations from making any “call” to a consumer’s landline soliciting an individual or any call to a mobile phone unless the organization has the “prior express consent” of the consumer. The definition of “call” includes text messages and other applications that allow or facilitate contact with consumers. Under the TCPA, an individual may revoke consent for the calls by any reasonable method- the organization cannot require the individual to use a specific method to revoke consent. Note that the TCPA is a strict liability statute. An organization is liable for statutory damages of $500-$1,500 per improper call even if the organization reasonably believed it had consent of the individual to make the calls.  Further, an organization may be liable for impermissible calls by a third party on behalf of the organization.

Several large class actions have involved appointment reminders, prescription refill reminders, and other medical related calls. There are two types of claims: claims alleging the consumer did not consent to the communication and claims alleging the consumer revoked consent for the calls. The lack of consent claims are often the costliest as they are well suited for class action. For example, Walgreens recently settled a nationwide class action related to prescription refill reminder calls for over $11 million. See Kolinek v. Walgreen Co., No. 13-cv-04806 (N.D. Ill. 2013). In Walgreens, the plaintiffs argued that Walgreens customers had not provided consent to the prescription refill reminder calls.

In another case, a company was sued after it made calls to a number which no longer belonged to the person who gave consent to be called. In this case, the new owner of the phone number had not consented to receive calls from the company and accordingly was able to sue the company for damages for the calls the company which were intended for the prior owner of the phone number. Another common fact pattern involves the revocation of consent. In these cases, the plaintiffs claim that they revoked consent by mailing a letter revoking consent to the main address of the organization or by telling someone at the organization that they were revoking consent. The revocation is not forwarded to the proper department and the individual continues to receive calls. These cases are difficult to dispute as they are a “he said she said” situation which requires a jury trial to resolve.

It is important that any organization that makes autodialed calls to individuals (or contracts with vendors who make autodialed calls) have systems and procedures in place to ensure that the organization has consent to make autodialed calls and that if an individual revokes consent for the calls, the proper departments are alerted. Further, organizations should have policies and training regarding these procedures.  We are available to review your TCPA language on forms to help minimize the risks. 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 (direct line 813-273-4307), Andrew McLaughlin at (direct line 813-273-4208), or Ashleigh Shelver at (direct line 813-273-4363).

New Employer Protections Under the Defend Trade Secrets Act of 2016

By Ashleigh R. Shelver

Ashleigh Shelver

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.”[1] 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 (direct line 813-273-4307), Andrew McLaughlin at (direct line 813-273-4208), or Ashleigh Shelver at (direct line 813-273-4363).

[1] The Defend Trade Secrets Act, S. 1890, 114th Cong. § 3(a) (2016).

Employer’s Perspective: Can You Terminate an Employee Who Requests Leave Beyond That Required by the FMLA?

By Thomas R. Farrior

Thomas Farrior

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 (direct line 813-273-4307), Andrew McLaughlin at (direct line 813-273-4208, or Thomas Farrior at (direct line 813-273-4232).

Florida Minimum Wage Increasing to $8.10 an Hour Effective January 1, 2017

By Janet Goldberg McEnery

Janet McEnery

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 (direct line: 813-273-4307), Andrew McLaughlin at (direct line: 813-273-4208), or Ashleigh Shelver at (direct line: 813-273-4363).

Todd A. Jennings Featured Speaker at The Greater Tampa Bay Chapter of the American Association of Legal Nurse Consultants

Todd A. Jennings was the featured speaker at the September meeting of The Greater Tampa Bay Chapter of the American Association of Legal Nurse Consultants. Todd educated the attendees on discovery and evidentiary processes and concerns relating to expert witnesses in civil litigation. Todd is an Associate with Macfarlane Ferguson & McMullen.

Todd Jennings

2016 MFM Summer Picnic

Thank you to the Florida Aquarium for hosting the 2016 MFM Summer Picnic, and for providing a special guest!picnic

Do’s & Don’ts for Politics in the Workplace

Janet McEneryJanet Goldberg McEnery will be the featured speaker at the Brandon Chamber of Commerce’s Government & Economic Advisory Council meeting on Wednesday, September 14th.  Attendees will hear scenarios addressing when employers might need to limit political speech and other activism in the workplace.  Janet is Board Certified in Labor & Employment law and is a Shareholder with Macfarlane Ferguson & McMullen.

Brian Aungst provides primary election commentary on WTSP

Brian Aungst political commentaryShareholder, Brian Aungst, Jr., provided political analysis on the Tampa Bay CBS affiliate, WTSP 10 News for the primary election on August 30th.

See the clip on the Channel 10 web site.


He will also be joining the WTSP team for the general election on November 8, 2016.

Aungst is a shareholder practicing in Administrative & Governmental Law, Business Litigation, Medical Malpractice, and others, and recently completed a term as Chairman of the Clearwater Regional Chamber of Commerce.

Firm Members Recognized in Best Lawyers in America 2017

MFM_Legal_logo_stamp2Congratulations to the following attorneys listed in The Best Lawyers in America 2017:

Andrew M. Brown – Legal, Medical & Professional Malpractice Defense; Personal Injury Defense

James W. Goodwin, II – Tax Law; Trusts & Estates

Joshua Magidson – Commercial Litigation

James A. Martin, Jr. – Medical Malpractice Defense

Janet Goldberg McEnery – Employment Law-Management; Labor Law-Management

Charles A. Moore, III – Corporate Law

Stephen H. Reynolds – Real Estate Law

Andrew B. Sasso – Trusts & Estates

Stephen H. Sears – Legal & Medical Malpractice Defense; Personal Injury Defense

William B. Taylor, IV – Environmental Law; Litigation-Environmental