Department of Transportation statistics suggest we spend about an hour daily driving our vehicles. Of course, much of this time is spent commuting to/from work. We also know that text messaging within companies has become ubiquitous. So, this begs the question: Might employees and employers be texting each other while driving?

If the answer to the answer is “Yes”, the next question managers should ask is “Does our company have a texting while driving policy?”

If your company does not have such a policy, it should. Texting while driving is illegal in Florida. On January 1st, 2020 a tougher law goes into effect making texting-while-driving a primary offense. Essentially, this means police officers may pull-over drivers expressly for texting.

If your employees are texting each other, while at least one is driving, your company is assuming significant risk. We know this because texting while driving is extremely dangerous. In 2018 alone, nearly 5,000 deaths; more than 1,000,000 accidents; and nearly 400,000 injuries were related to cell phone related distracted driving.

If an employee is driving and texting, and the text is related to his/job, then any accident flowing from the employee’s distracted driving would, likely, be viewed as within the scope of employment. Thus, the employer would be responsible. It’s simple negligence, really. Drivers have a duty to protect others. Texting while driving breaches that duty. If injury is caused due to this breach; and the damages are those anticipated from such a breach (e.g. personal injury, property damage etc.)…your company is negligent.

Therefore, every company should have an anti-texting while driving policy that educates employees to the risks of texting while driving; prohibits the conduct;, and reinforces the illegality of the practice. Such a policy could establish best practices for how and when co-workers should communicate. At the very least, it could encourage employees to use smartphone features that block incoming messages while driving.

Rest assured, if an employee is involved in a texting while driving accident the plaintiff’s attorney will ask about your policy and training. Protect your company. Protect your employees. Protect innocent drivers, passengers and pedestrians. Make sure your company has an anti-texting policy…and enforce it. I’d be happy to draft such a policy for you. It’s not the most challenging legal exercise, but it’s among the most important. If your HR manager chooses to draft the policy, just be sure to have your lawyer inspect it to ensure it’s aligned with Florida law.

My Business Law students are often surprised to learn that the State of Florida, unlike the United States of America, has an official language: English. See Article II, Section 9 of the Florida Constitution. So, does that mean employers can require employees to only speak English at work? Generally speaking, the answer is “no”.

Florida employers who attempt to unreasonably require an English language-only workplace may experience a similar fate to the Texas resort, which recently paid more than $2.6 Million in damages for requiring 25 Hispanic employees to speak English only.

Students often ask: If English is the official language in Florida, why is requiring an English speaking workplace illegal? The reason: Such a policy violates the Federal Civil Rights Act of 1964 (and the Florida Civil Rights Act of 1992). Preventing employees from speaking their primary language is considered National Origin discrimination because language is a manifestation of one’s birthplace.

Stated differently, racist managers might try to circumvent laws against racial discrimination by prohibiting employment based on language instead. However, government agencies and plaintiff lawyers are wise to this trick. Prohibiting certain languages in the workplace is tantamount to prohibiting certain types of people, and smart people know it.

Employees should know, however, that Federal and Florida anti-discrimination laws generally apply to workplaces with 15 or more employees. Some county ordinances (e.g. Osceola and Orange) reduce the threshold number of employees to as little as 5 or 6. However, it’s still technically legal for very small businesses to require an English speaking workplace. Immoral, perhaps…but not illegal.

This is another reason why employees should consider the size of an employer (based on the number of employees) before seeking employment. Some laws apply to employers of all sizes, while other laws apply only to some employers. Likewise, employers should know what laws will apply as their businesses grow. Again, employment law is often dependent on the size of a company based on the number of workers employed, not the amount of revenue generated.

(c) Copyright 2019. All Rights Reserved.

A key to business success is the ability to distinguish a cost from an investment. In business, we’re correctly taught to reduce costs. But how do you define costs? If you look at legal fees as a cost, you’ll seek to avoid them. One seemingly smart way of reducing legal fees is using legal forms found online. However, is this a smart idea?

Words and punctuation mean things under the law. A well-drafted business contract, therefore, is tailored to your unique situation and jurisdiction. For example, it likely has parol evidence, severability, and forum clauses inserted to protect you. Just wondering: Do you even know what parol evidence is? If not, then how will you know if a parol evidence clause is missing?

I chose three random contract concepts, but could easily rattle-off a dozen more. Any transacational lawyer could. We distinguish between applying the Uniform Commercial Code versus the Common Law; know why a contract should use Oxford commas; and explain the Latin maxim Contra Proferentem to clients on a daily basis. It’s our business. We’re experts at contract review and drafting, just like you’re likely an expert in your occupation.

Drafting and interpreting contracts is a skill developed over thousands of hours of study and practice. If you hire a transacational lawyer to review a downloaded form, we will invariably find a lot of problems with that form. Some of the boilerplate language may suffice, but we’ll find problems a non-lawyer won’t recognize. Those problems can be very costly if the form is signed and becomes a binding contract.

Whoever wrote a legal form found online — if it was even written by a licensed attorney — is not protecting you, or your business. And, you’re not protecting yourself if you incorrectly view contract drafting as a cost, rather than an investment.

Anyone who says “the customer is always right” has never had a customer. While most customers are respectful of employees, some are very disrespectful. Being obnoxious is not illegal. However, customers who sexually harass a company’s employees are acting illegally — and the employer can be made to pay.

Sexual harassment is defined by the Equal Employment Opportunity Commission as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Consider these statistics to provide some context into the pervasiveness of this problem:

• The Association of Flight Attendants reports that 68% of flight attendants have experienced sexual harassment by fliers.
• National Public Radio reported that 53% of hotel housekeepers have experienced sexual harassment from guests.
• Harvard Business Review reported that 90% of female (and 70% of male) restaurant servers have experienced sexual harassment, with incidents from customers more than doubling incidents involving managers.

Unfortunately, many companies ignore such harassment as part of a longstanding “the customer is always right” culture. The customer isn’t always right, and employers have to step-up on behalf of their employees. Sexual harassment is never acceptable. Employers need to get their minds around this concept…or they’re going to lose good employees; and write big settlement checks needlessly.

Companies should have zero-tolerance policies related to customer-based harassment (and educate customers about these policies). They should empower employees and managers to confront abusive customers by denying service. Employers should keep accurate records, and create a culture where treating employees with respect is the norm.

If you are sexually harassed by a customer, you should report the incident to your Human Resource Manager. Upon notice, the company must take steps to stop the harassment. If the problem continues, you should contact an employment lawyer to put a stop to it. Alternatively, you can have your lawyer provide the notice to HR. This approach is likely to get your employer’s attention, since an employment lawyer will outline the legal ramifications should the problem continue.

The issue of unpaid internships is a challenging aspect of business administration. In theory, internships provide a good opportunity for new job entrants. In practice, internships can land a company in legal trouble. Here is the key thing to remember: Under the law, your company cannot be the “primary beneficiary” of the relationship.

Legal principles behind unpaid internships in the USA date to 1947 when the Supreme Court articulated six rules employers must follow. The federal law applicable to internships is the Fair Labor Standards Act (FLSA) of 1938.

Do you see the problem? The laws were written during the Roosevelt and Truman Administrations. The FLSA has been amended several times across the decades, but we still see areas where the law is not harmonized with the market. Internship law is one of those areas.

The world has changed rapidly, but our internship laws have evolved slowly. This has proven problematic. Government has largely left the company/intern relationship to the market, which has resulted in exploited interns and lawsuits.

Today’s courts look to the following guidelines set forth by the Department of Labor, based upon Supreme Court precedent, to establish whether the company is the primary beneficiary, thus violating federal law:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. (Source: US Dept. of Labor, 2019).

Businesses hiring unpaid interns primarily to save money would likely be in violation of guidelines #2, #3, and #4.

If your company is sued by a former intern, his/her lawyer will ask your HR Manager during deposition: “Was your primary motive to save money?” If the HR manager says “yes”, your company will likely lose that lawsuit.

Courts will look at the facts of each case and weigh the factors differently. The legal issue isn’t whether your company can benefit from the use of interns. The issue is whether your company is calling an employee an intern (to avoid paying wages).

Damages to a company from a successful employment claim may include double wages for the former intern, plus attorney’s fees. Inevitably, tax consequences and bad publicity will follow the verdict.

If you’re a business owner thinking about “bringing on interns” to save labor costs, you should think differently. Internships are not about you. Nor are they about your company, customers or profitability. Internships are about students. Your primary motive should be helping students. An ancillary benefit to your company is fine, but benefiting the company cannot be your primary motive.

If using internships as part of your business strategy, be sure to have a policy drafted by a business lawyer, who tailors the policy to Florida court decisions on the topic. Internships are an area where not knowing the law can cause a lot of problems.

(c) Copyright 2019. Matthew G. Kenney. All Rights Reserved.