Florida Lawyer News Services | Robbins Equitas

Fair Labor Standards Act (“FLSA”) Violations: Department of Labor Targeting the Florida Hospitality Industry

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

Following a significant increase in funding and staffing this year[1], the Department of Labor (“DOL”) is preparing for an initiative that will target hotels, motels and resorts in the United States looking for Fair Labor Standards Act (“FLSA”) violations[2].  Due to Florida’s large tourism industry[3] and subsequently the large number of hotels and motels and their connections to Latin America and Mexico, Florida is a prime candidate to be the DOL’s first and largest target.  The potential impact of the DOL’s proposed action on Florida’s most significant industries, and the law firms that represent them, is immense.  The DOL has concluded that the hospitality industry (especially in Florida) is a “high-risk industry” for violations of the FLSA and certain immigration laws[4].  Florida attorneys and their clients should note that beginning October 2010, the DOL will start auditing Florida hotel employers for violations of overtime rules, minimum wage infractions, wrongful classification of exempt and non-exempt positions and proper documents/requirements for workers who hold H-2B visas[5].

Fair Labor Standards Act Compliance Wage and Hour Audits

During a wage and hour compliance audit, the DOL investigator typically reviews all personnel time and payroll records to determine compliance with all aspects of the FLSA for all current and former employees on the employer’s payroll for a minimum of the past two, and many times to the past three, years.[6] The investigator is also likely to review immigration records for employees with special visa status.[7]

Fair Labor Standards Act Violations and Penalties Against Florida’s Hotel-Motel and Resort Hospitality Industry

If an audit of a Florida hotel or motel reveals violations of the FLSA or any other federal law, the DOL will require the employer take immediate action to correct the violations.  The DOL is entrusted with a variety of rights and powers to remedy the violations.  These actions involve, at a minimum, reimbursing back wages found to be owed during the DOL audit.[8] In some cases, the DOL may seek injunctions to restrain the employer from committing future violations of the FLSA[9] and may also impose civil penalties against the Florida hotel or motel (up to $1,100 per employee)[10].  In situations involving known, willful FLSA violations and actions by a Florida hospitality business, the DOL may undertake, and see through, criminal prosecution[11].  In addition to these remedies, the DOL may refer potential violations of immigration laws to the Department of Homeland Security.

Preparation for the Department of Labor initiative by Florida Lawyers and Their Hospitality Industry Clientele

Hospitality employers should act now to prepare for the DOL’s initiative.  Attorneys should advise their hospitality industry clientele to perform self-audits, or audits by a licensed knowledgeable attorney, of their employment policies, labor agreements, hiring practices and record keeping procedures to verify compliance with federal regulations, in particular the FLSA, prior to October 1, 2010 or shortly thereafter. Such audits will help hotel-motel employers more accurately assess their potential exposure risk and allow them to take proactive steps to minimize or eliminate possible violations well in advance of a DOL audit. Prior to a hospitality industry employer finding itself in a DOL audit, the employer should consider engaging legal counsel to provide and act upon a private audit, all while keeping the results privileged and inaccessible to the DOL unless disclosed the employer.  If the hospitality industry employer finds itself in a DOL audit, the employer should consider engaging legal counsel to preserve all of the employer’s rights, to ensure the audit is being adequately and correctly implemented, and to minimize any penalties imposed by the DOL.  Additionally, hotel and motel employers should also develop and implement strategies and procedures to act upon in the event of an audit request.  The employers should do this on their own or with the assistance of efficient and effective legal counsel.

Our Experience

Lynch & Robbins offers attorneys admitted to all federal districts of Florida.  For more information regarding our attorneys and their biographies, please feel welcome to contact us for a consultation and visit us at www.floridalawyer.com.

No information or explanation in this article should be construed to establish an attorney client privilege or be intended as specific legal advice in your matter as each individual contains unique facts and circumstances that must be evaluated accordingly.

Vincent Lynch is the Managing Partner of Lynch & Robbins.  Mr. Lynch represents businesses, employers and individuals in complex federal and state court litigation, arbitration and administrative matters.  Mr. Lynch has over 18 years of legal experience and served as a state and Federal Court law clerk for 4 years before entering private practice. Mr. Lynch spent over 10 years practicing at major law firms including Ruden McClosky, Trenam Kemker and the National Labor & Employment firm of Jackson Lewis.  He has been a member of The Florida Bar since 1992 and the Georgia Bar since 1994.

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http://liveshots.blogs.foxnews.com/2010/04/01/a-new-sheriff-in-town/
Id.
See www.visitflorida.com.  The Florida Tourism Industry Marketing Corporation (Visit Florida) was created by the 1996 Florida Legislature.  It is a not-for-profit corporation which replaced the Department of Commerce’s Division of Tourism upon its abolishment by the same 1996 Florida Legislature.
http://www.dol.gov/opa/media/press/whd/WHD20100411.htm and http://24ahead.com/labor-department-actively-supporting-illegal-immigration-we
Id.
29 U.S.C. §211
Id.
29 U.S.C. §216
29 U.S.C. §217
29 U.S.C. §216
29 U.S.C. §216

Current Florida Litigation Trends (July 2010)

By: Vincent Lynch, Managing Partner of Lynch & Robbins, P.A.

At Lynch & Robbins, our Florida lawyers continually monitor trends in recent lawsuit filings in Federal and state courts and administrative tribunals across Florida. We focus our research and advice to clients on the most prolific areas of the moment such as the Fair Labor Standards Act (FLSA), Fair Debt Collections Practices Act (FDCPA), Americans with Disabilities Act (ADA), securities, partnerships, and intellectual property law. We also track favorable developments in our other core practice areas including Commercial Litigation, Product Liability, Franchise, and administrative law cases. Lynch & Robbins has offices in Tampa, St. Petersburg, Orlando and Miami.

Florida Court Dockets Remain Flooded

The tidal wave of foreclosure and eviction cases coupled with the reduction in the Florida State Court budget have greatly impacted the number of cases on the dockets of the state court judges in Florida. However, many Florida judges and their staff are working hard to manage their dockets and we have seen surprising progress on state court cases we handle for clients throughout the Circuit Courts of Florida.

The Federal Courts in Florida

FLSA, ADA, Fair Debt Collection Practices Act (FDCPA) and intellectual property law cases are among the most filed lawsuits in the Federal Courts in Florida–that encompasses the Southern, Middle and Northern District Courts. Approximately 150 FLSA cases were filed against Florida companies in Federal Court in June of 2010 alone and over 20% of all FLSA lawsuits filed in Federal Court are filed in Florida. Over 50 intellectual property law cases were filed in Federal Court in Florida in June of 2010 including Patent Litigation, Trademark Infringement, and alleged Copyright violations.

In response to the extremely high volume of filings in certain areas including the FLSA and ADA, many Federal Judges across Florida including in Tampa, Orlando, Miami and Jacksonville issue special scheduling orders to manage and progress these cases quickly. Some Judges, particularly in the Southern District Courts in Miami and Fort Lauderdale enter orders allowing for shortened discovery periods and setting cases for a trial date a relatively short period of time from the date the case was filled—otherwise known as a “Rocket Docket.” These Judges know that nothing disposes of cases more efficiently than a firm and early trial date.

Over 750 lawsuits are filed monthly under the Federal Fair Debt Collection Practices Act and other Consumer Protection Laws in Federal Courts in the United States. At least 30 FDCPA cases were filed in Federal Court in Florida in June, 2010.

Employment Litigation

Employment litigation consistently remains one of the most prolific areas of litigation in Florida and across the U.S. Over 220 employment related lawsuits were filed against employers in federal court in Florida in June, 2010 including 150 FLSA and 75 employment discrimination cases.

Our Experience

Whether you need an employment lawyer (to defend and FLSA or discrimination case under Title VII, the Florida Civil Rights Act or the ADA), an intellectual property attorney or are involved in commercial litigation, the lawyers of Lynch & Robbins can help you. We are committed to providing our clients the most current methods for preventing and defending litigation efficiently and effectively. For more information, please visit us at www.floridalawyer.com.

Vincent Lynch is the Managing Partner of Lynch & Robbins. Mr. Lynch represents businesses, employers and individuals in complex federal and state court litigation, arbitration and administrative matters. Mr. Lynch has over 18 years of legal experience, and served as a state and Federal Court law clerk for 4 years before entering private practice. He has been a member of The Florida Bar since 1992.

(Tampa bankruptcy attorney) Beavers v. Metro. Life Ins. Co.

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(U.S. 5th Cir., Civil Procedure, Contracts, Insurance Law) In an action alleging breach of life insurance investment contracts, the dismissal of the complaint is affirmed where the District Court correctly held that Plaintiffs’ claims were barred by the Texas statute of limitations, because Plaintiffs’ alleged injury was not inherently undiscoverable.

County of Sonoma v. Superior Court of Sonoma County

(Cal. App., Civil Procedure, Constitutional Law, Contracts, Dispute Resolution & Arbitration, Government Law) Petition for writ of mandate seeking relief from an order of the superior court compelling plaintiff to arbitrate with real party in interest Sonoma County Law Enforcement Association is granted where: 1) Code Civ. Proc. section 1299 impermissibly interferes with the governing body’s constitutional authority to establish employee compensation; and 2) Code Civ. Proc. section 1299 impermissibly delegates to the arbitration panel the power to interfere with county money and to perform municipal functions.

Nken v. Holder

(U.S.S.C., Civil Procedure, Immigration Law) The Court of Appeals’ denial of Petitioner’s motion to stay his removal pending judicial review of a BIA ruling is reversed, where traditional stay factors, not the demanding 8 U.S.C. section 1252(f)(2) standard, govern a Court of Appeals’ authority to stay an alien’s removal pending judicial review.

Byrum v. Landreth

(U.S. 5th Cir., Administrative Law, Civil Procedure, Commercial Law, Constitutional Law, Government Law) In a First Amendment challenge to a law restricting the use of certain advertising language by unlicensed interior designers, the denial of a preliminary injunction is reversed, where it was the government’s burden to prove the constitutionality of the commercial speech at issue and the District Court held that the government failed to meet that burden.

Pasco v. Knoblauch

(U.S. 5th Cir., Civil Procedure, Civil Rights) In a 42 U.S.C. section 1983 action based on Plaintiff’s injuries while being chased by police, the denial of summary judgment for Defendant-Officer is reversed, where Defendant’s failure to raise the defense of qualified immunity until his summary judgment motion did not prejudice Plaintiff, and Defendant did not violate clearly established law.

Florida Lawyer

(Tampa florida lawyer) Brooks-Ngwenya v. Indianapolis Public Schools

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(U.S. 7th Cir., Copyright, Education Law, Intellectual Property, Per Curiam) In a copyright infringement action involving an educational program, district court’s grant of summary judgment for defendant is affirmed where the copyright infringement claim fails as plaintiff’s complaint is that defendant copied her ideas but she did not prove or try to prove that defendant copied any of the materials protected by her copyright.

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