Louis Montone 0:00
Your contract says I pay you X amount for all your hours work. So if you work 50, then they get their straight rate for that 50 but you still own that halftime premium if they’re eligible.
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Jordan Ostroff 1:08
Hello, and welcome to “Let’s Get Up to Business” with Jordan Law. Joining me today is Louis Monotone with The Leach Firm. Louis is a fantastic employment law attorney who’s going to share with us some of his tips and tricks that he looks for in great cases, so that our business owning listeners can, you know, not make those mistakes. Thanks for joining us.
Louis Montone 1:28
Hey, Jordan, thanks for having me. Happy to be here.
Jordan Ostroff 1:31
So anybody listening to this who knows they need to talk to an employer or I guess a plaintiff’s employment attorney, is that correct?
Louis Montone 1:37
Jordan Ostroff 1:38
Alright, so anybody who knows they need to contact you. What is the best contact info?
Louis Montone 1:42
Sure. Well, my direct line is 321-441-4103. And that would be the best way to reach me directly.
Jordan Ostroff 1:50
Okay, so tell us a little bit about yourself?
Louis Montone 1:53
Sure, well, you know, I currently practice employment only, employment law only. And only on the plaintiff side, meaning I represent people, I represent individuals who have had some sort of legal issue with their employer. And so you know, I’ve been doing that for practically my entire career out of law school, it’s been a few years now. And prior to that, I was actually in commercial sales. I, you know, worked in New York City for a while, like, sort of had a career before law. And so I’m, you know, come with a little bit more diverse backgrounds than just law.
Jordan Ostroff 2:24
So can you share kind of, you know, your most common cases that you’re seeing, you know, what’s the what’s the situation that’s presented that as lead them, lead somebody to contact you?
Louis Montone 2:33
Sure, sure. Well, discrimination is a sort of our bread and butter, and there’s a lot of that going on. There are only a few, what are called protected classes in this area of law. So what I mean is that, you know, race, age, gender, disability, religion, for example, those are the protected classes. So discrimination can only be based on one of those things under federal law. And I won’t go into a ton of details. But um, but basically, discrimination is big, a lot of retaliation cases and a lot of wage and hour cases where people are not paid correctly by their employer.
Jordan Ostroff 3:06
So the discrimination stuff is that Title VII?
Louis Montone 3:09
It’s Title VII under federal law. Florida has a very similar law called the Florida Civil Rights Act, which basically mirrors that, although there are some differences between the two. And then there are also local level laws like Orange County, and has ordinances that also have different types of protection.
Jordan Ostroff 3:27
So you’re representing somebody who was fired for one of those things, or was not hired for one of those things, or either one?
Louis Montone 3:35
It could be either, typically a situation, a case, is when someone’s been terminated for the most part.
Jordan Ostroff 3:41
All right, so most of your clients are going to be fired, I mean, I guess I don’t want to say ideally, but.
Louis Montone 3:46
That is it. Yeah. Unfortunately, that’s the right word. Yeah, it’s, they, they’ve either been fired, or it’s, the writing’s on the wall, I like to say a lot, you know.
Jordan Ostroff 3:54
And then you said wage and hour cases. So that’s going to be somebody who’s not paid, is paid below minimum wage or not paid properly?
Louis Montone 4:00
Yes. And that’s another vast area, but you’re correct, you know, minimum wage, and another big, big area is overtime law, a lot of overtime violations. That gets complicated paying people. And so for your business listeners, you know, a lot of times they violate these laws, by accident, that doesn’t matter. There’s no intent behind that, you have to pay someone correctly. And under, you have to, you know, be advised throughout the course of your business dealings, so that you’re not violating those laws.
Jordan Ostroff 4:26
And then what was the third kind? I forgot that one, sorry.
Louis Montone 4:29
I think I mentioned retaliation. Yeah, that’s very common.
Jordan Ostroff 4:32
So that’s going to be somebody getting fired, because they have, what? Reported the company to some agency?
Louis Montone 4:38
Yeah, there’s a lot of different forms of that as well. So for example, the discrimination laws have their own retaliation provisions. So let’s say, you know, I’m Italian, and I didn’t get fired because I was Italian but I complained that my boss was discriminated against me because of my race or national origin. And then I get fired, that would be an example of retaliation claim based on a protected class again.
Jordan Ostroff 5:01
Okay, so it’s not necessarily whistleblowing to, you know, an agency that the company is doing something wrong, you can be getting fired for saying that you’re being discriminated against?
Louis Montone 5:11
Yeah, it depends on, it depends on the facts. We actually do also handle what you’re referring to, Jordan. The Florida Private Whistleblower Act would handle something like that. Typically, if it’s a private employer, where you’re reporting something that you believe was a violation of a law, rule or regulation, if you’re terminated for that, that’s a whistleblower retaliation claim as well.
Jordan Ostroff 5:28
Alright, so then let’s go down all those in more detail. Because I mean, I think there’s going to be some great information that you can provide for our listeners on all those. Any preference on which one we do first?
Louis Montone 5:38
I think discrimination laws, probably the heart of it.
Jordan Ostroff 5:40
Okay. So walk me through a little bit about, you know, the Title VII stuff, the Florida stuff, and the differences?
Louis Montone 5:46
Sure, well, they’re very similar. Under Title VII, you know, what we’re looking for is that someone has been discriminated against because of their membership and a protected class. And those are the legal terms of art. But so I, it’s important that I use those because that’s really what we’re looking for. So you know, again, sticking to you know, myself as an example, if I had been terminated in my job, and I had evidence that it was because I’m male, that would be a claim potentially, under Title VII, as well as the Florida law, as well as even local law, depending on what county you’re in.
Jordan Ostroff 6:17
Okay, so gender is going to be one of them.
Louis Montone 6:19
Yeah, so we have race, gender, disability, national origin, religion. And I’m trying to, I’ll think if there’s anything else, I think that covers most.
Jordan Ostroff 6:28
What about age?
Louis Montone 6:29
Oh, yeah, I’m sorry, age is another protected class.
Jordan Ostroff 6:31
Right. What? I mean, I guess so the, the issue I have on those, the, you know, the disability and the age one, I always kind of go back to because, you know, for some, I guess they’re allowed to, like you can’t, you know, if you’re disabled, and you can’t lift more than 30 pounds, they don’t have to offer you a job working in a, you know, stocking or moving boxes or something.
Louis Montone 6:51
Right. Right. And typically, the law protects the employers, you know, from that. So what we have to do is an analysis and the analysis is based on first, are they actually disabled, to stick to the disability hypothetical. And then there’s an analysis that’s done, employer does not have to accommodate anybody for any reason there, it has to be a reasonable accommodation. And so that’s a very gray area, if those words sound gray to you, it’s because they are gray. And that’s really where you need, you know, experienced attorneys on both the plantiff and the defense side to really evaluate that, the facts, to see if there’s been a violation or not.
Jordan Ostroff 7:24
And so from a gender standpoint, I mean, like, so can Hooters do, they have to hire male waiters now, or?
Louis Montone 7:30
You know, there’s case law, famous case law and stuff like that. If it’s a bonafide occupational reason for a job, they don’t have to do it, you know, if it’s something like that, you know, it’s possible that they can stick to just one gender. Those are not really the type of things that we typically see. I mean, typically, you know, we’re seeing the, you know, just in a regular old office, and you know, a woman is getting harassed because of her gender, is being held back because of her gender, so forth. With, you know, the more common examples are just everyday things where someone’s being treated worse.
Jordan Ostroff 8:02
What, I mean, are there any, what other, you know, famous examples are there where you can discriminate based upon gender?
Louis Montone 8:09
Well religion comes to mind, actually, even more so, which again, it’s a different protected class, but that’s an example of where, you know, religious entity does not have to necessarily hire someone outside of their beliefs. But, so that’s, I think, an example that I can give you off top my head.
Jordan Ostroff 8:25
What sort of, I mean, obviously, like, if I, you know, I mean, I’m Jewish, so I don’t really care if anybody else is Jewish or not, that’s part of our thing. But like, as a law firm, you know, I can’t have to hire, I can’t only hire other Jewish people. So what sort of companies are getting the ability to, you know, be choosy when it comes to religion?
Louis Montone 8:45
I don’t think there would be a lot of that. I don’t think that many companies are probably going down that path. If I’m understanding your question right. I don’t think many times that’s a, that’s an issue.
Jordan Ostroff 8:57
Well, I mean, you’re, so you’re talking about times where people can discriminate with religion being one so like, if you’re, like, Advent, Adventist Health, you know, their Seventh Day Adventist, you have to be a Seventh Day Adventist to get above a certain spot. Is that okay?
Louis Montone 9:11
Yeah, I don’t think that would be okay. Unless there’s a bonafide reason for it. Like your Hooters example, I think would be a better example of this type of hypothetical where you have to be a specific gender, you know, to actually perform this job. So, I hope that makes a little bit better sense.
Jordan Ostroff 9:27
Maybe, I mean, there, look, there’s a ton where what you do makes perfect sense to me. And there’s a ton where I look at it as an, as a business owner. And it’s kind of like, you know, I don’t understand why that’s not okay. You know, obviously, if you’re sitting there saying, “Oh, I don’t want to hire anybody who’s Hispanic or black or white”, or whatever, I get it. But you know, I guess I guess the disability thing makes the most sense, you know, if you’ve got something specific to the job that requires certain abilities, it’s easier to not have somebody with disabilities.
Louis Montone 9:57
Well, the Disability Law, the way it works is that the person has to be able to perform the essential job duties, and they have to be able to do it with or without an accommodation. So without an accommodation is kind of the easy one, you know, I can do my job, I don’t need accommodations. So the questionable ones, the ones that may turn into claims are if someone needs an accommodation, and that’s where it goes back to that gray area, I mentioned where the employers burden is to engage in what’s called the interactive process, and actually speak and, you know, discuss the requested accommodation with that employee. And unless there’s an undue burden on the company, they may have to accommodate them. And again, it’s very fact specific, it’s hard for me to give you a bright line rule beyond that.
Jordan Ostroff 10:36
Well, so for example, like if I’m hiring a receptionist, and somebody doesn’t have hands, but they can answer the phone, you know, by tapping their foot if we get something set up, then that may be a situation where you’d have to accommodate?
Louis Montone 10:49
Yeah, possibly, unless it’s an undue burden on you, you know, unless there’s, you know, for example, you know, employers are, you know, not required to create jobs for someone. They’re not required to spend a ton of money necessarily on, on the particular person. I’m just going to give you a classic example of this. It’s more, more common things like someone gets hurt, or they have a disability, they have some sort of a, you know, medical condition, and they can’t stand for long periods of time or they can’t lift really heavy things. It’s usually like a light duty accommodation where, you know, they don’t, they can still do the main job, I can still answer the phone, I guess I’ll work on a computer, but I maybe just can’t lift something heavy that occasionally needs to be lifted. That’s a more classic example.
Jordan Ostroff 11:26
Gotcha. Okay. I mean, that makes sense. So the age one, I mean, that’s the other one that’s that interests me, because obviously, like, you know, it’s 2019. So people can change what they identify as or they identify, as you know, something else, whatever. But age is always going to change, you know, I’m always going to get a year older after every year. So how do you incorporate age discrimination when age is not really an immutable characteristic?
Louis Montone 11:52
Well, federal law covers individuals aged 40 or over first of all, so the Age Discrimination and Employment Act is actually separate than Title VII. So that, so first of all, there’s a threshold of 40 under federal law. Now, one of the differences because you mentioned, what those may be, the Florida Rights Act does not have that, quote, that necessary, that necessary threshold. So under in Florida law, you could, you could be 39, and have an age claim. Okay, so, and I think, I think to answer your question, you know, we’re just looking for people not being treated less favorably. No one, no one under the protected classes is entitled to favorable treatment. Now, it doesn’t matter if you’re a man, woman, it doesn’t matter if you’re pregnant, disabled, whatever your religion is, it’s not about getting more than your coworker, it’s about not being treated less favorably, then someone outside of that protected class. So for age cases, were looking for, you know, am I, you know, if I’m 60 years old, just as an example, you know, did I get fired or was I treated worse, specifically, because I was 60 and someone wanted me out because of my age.
Jordan Ostroff 12:52
So, okay, so basically, the way the federal rule is set up, is I can, I can give preference to somebody’s over 40 in their favor, I just can’t do it less than? I can’t do it against them?
Louis Montone 13:08
Well, there’s no, there’s no, these laws don’t entitle anyone to anything special, like so there’s no, the law’s not forcing your business to treat someone better age 40 or over, you can’t just treat them worse than people younger than they are.
Jordan Ostroff 13:21
Right. But let’s say I open up, you know, a chief financial officer and I put you know, anybody under 40 need not apply, because I don’t think they have enough life experience. Is that something that I can do, because they’re only going to be protected at 40?
Louis Montone 13:33
No, you most likely would run into, that most likely will be illegal to advertise like that. You can’t, you can’t advertise against the discriminated, or the protected classes like that.
Jordan Ostroff 13:42
Okay, so even, so the federal laws protect people over 40 but you’d still have a Florida claim under that.
Louis Montone 13:48
You could have a Florida claim, you’d have a claim, potentially against anyone that isn’t the, I guess the market. You know, like if you’re saying we can’t, we don’t want the under, over 40, you’re discriminating against everybody over 40. So you’re opening yourself up to possible claims from other people, you know, like a failure to hire like you mentioned in the beginning type of thing.
Jordan Ostroff 14:11
Even though the federal, even though Title or whatever, even though the federal act that you talked about protects, it talks about 40 as the, as the age where it starts protecting people.
Louis Montone 14:22
Yeah, making sure I understand your question, you’re saying you only want people over 40? Or under 40?
Jordan Ostroff 14:26
Well, I mean, I’m playing a hypothetical here. So you’re telling me, you know, the, the way that the Federal statue works out is, it’s protecting people over 40 from being discriminated against, so I can’t fire somebody because, just because they’re over 40. But if I do the reverse of that, if I have a position where I’m looking for somebody with life experience, with, on a second career, whatever, and I don’t want to hire anybody under 40. Am I okay in that statute because I’m giving them a benefit of age, not a detriment?
Louis Montone 14:52
I see what you’re saying. Let me just give a disclaimer. You know, I’m not a defense attorney. So you’d have to really speak to someone who gives management side daily advice like this, because you’re asking a lot of the good, like, daily management questions. You’d still potentially have a problem under Florida law, like you said, as it doesn’t cover people just over 40. And in general, you’re not supposed to discriminate on job postings. So I think that that’s just kind of my general answer to your question. I mean, you may not have an age claim for people over 40 like you’re saying, but you could, you would still potentially have a violation of law by doing that.
Jordan Ostroff 15:24
And what about requiring somebody to be bilingual or speak another language?
Louis Montone 15:29
Uh, you know, I think that’s okay. If it’s, if it’s required again, you know, it’s, it sounds like a bonafide characteristic that you would need in a job. And you, I’m sure you see that a lot at other job postings, that’s pretty common that, to require someone to speak another language.
Jordan Ostroff 15:40
Okay. And I guess in that because you’re not requiring them to be, you’re not requiring them to be from, you know, Portugal or Brazil or not requiring them to be from a Spanish speaking country. Just to speak, you know, English and Spanish. That’s okay.
Louis Montone 15:53
Yeah, it’s really about the way you’re treating the other people. So, you know, if you’re, if the other person, it’s okay, because you’re not, yeah, it’s not treating them worse and your job requires that skill. So you know, I don’t speak Portuguese. So, you know, I simply cannot do that job. So it’s okay for you to need someone who can speak Portuguese, if that makes sense.
Jordan Ostroff 16:11
Gotcha. Alright, so we kind of covered, you know, most of them. The one that I always kind of go back on is what about sexual orientation? I know, this is probably not where we expected this podcast to go. But I know that –
Louis Montone 16:23
That’s a great question.
Jordan Ostroff 16:24
From, from a Florida standpoint, Florida does not have a non-discrimination policy regarding sexual orientation, or at least last that I heard.
Louis Montone 16:31
No, under federal law, it’s not currently protected. Under Florida State law it’s not but it is covered in Orange County law, sexual orientation is covered. So for your business owners in Orange County, that is something to be aware of. So in other words, someone does not need a Title VII claim, they can bring a claim against the owner of Orange County Ordinance. This is currently being litigated. It’s currently working its way through to Supreme Court. And so you know, my guess is that I think sexual orientation may be covered under gender, at some point, it may be happening sooner than later. But of course, you know, no one can predict the future.
Jordan Ostroff 17:05
So, so basically, I mean, I guess, in theory, a business right now, that does not operate in Orange County, or I guess, another county that has the same ordinance, could in theory, hold that against somebody?
Louis Montone 17:18
Jordan Ostroff 17:19
Okay. Yeah, the Orange, the Orange County Ordinance, that’s going to apply to both government and private businesses in Orange County, or just to government contracts? Or how does that work?
Louis Montone 17:28
Um, I’d have to check, I believe it’s applies to all, the one I, the one I use the most is something that applies to private companies. I’d have to double check that ordinance to answer your question.
Jordan Ostroff 17:37
Okay. All right. So but basically, from our business owners perspective, you know, if one, don’t be a jerk, I mean, that’s kind of always number one.
Louis Montone 17:45
A good start, right.
Jordan Ostroff 17:46
Two, you know, if you’re going to fire somebody, or if you’re going to not hire somebody, based upon something about them, just make sure you’re checking all these things, make sure you have a viable reason. It’s almost like striking a juror, you know, I need a, I need a race neutral, I need a protected class neutral reason. So it’s just something for our business owners to consider.
Louis Montone 18:10
Yeah. And, you know, you know, we’re obviously attorneys. So just as a, as a reminder, and anytime you have a question, you know, and again, I don’t I don’t do this right now but I know plenty of fantastic attorneys in the Orlando area that do, you know, it’s always great to just get some advice if you don’t have someone even on retainer, but you have a difficult decision to make. And maybe you’re, you’re afraid, you know that there may be some exposure to your company, it’s always best to just get professional advice. It’s worth it. And another thing I want to just mention, Jordan, since there’s a lot of business listeners, is that these laws always will typically have minimum threshold and employees. So Title VII is 15 people. And Orange County ordinance is only five. So just to give you an example, if you’re a small business owner, sometimes you’re just not covered by Title VII, but then you don’t realize that, “Oh, I didn’t know I’m covered by the Orange County” or the, yeah, the Orange County Ordinance, and suddenly there are potential discrimination claims against you. So that’s something that an employment attorney on the defense side could advise you about before you make those decisions.
Jordan Ostroff 19:06
All right. I, I didn’t even know that. I mean, I guess I go back to it because our rule number one is don’t be a jerk, I’m not as worried about these but
Louis Montone 19:12
I know and Jordan, I mean, you’re gonna nail it on the head. I mean, you know, I really hope that most companies are not making decisions based on you know, protected classes, you know, that, let’s hope that’s not what’s happening.
Jordan Ostroff 19:21
What, do you know the threshold for the Florida?
Louis Montone 19:24
I have to check that one, I think it’s either 10 or 15. It’s very similar to Title VII, the Orange County one’s the most dangerous one being as low as five.
Jordan Ostroff 19:33
Well, or the most beneficial one.
Louis Montone 19:35
If you’re on the plaintiff side, yes, but I’m trying to stick to your
Jordan Ostroff 19:39
Again, I go back to, I, we always advise our clients that don’t be a jerk, you know, put, put stuff in writing that’s valid reasons, put stuff you can defend and put something that you’re, that you would be more than willing to share with a jury or judge if it got there. And that’s, you know, documenting somebody not fulfilling their job requirements for, you know, several months before they’re gone, or making a huge mistake, or stealing from the company versus them being too old or too short or too wide or too black, or you know, whatever it is.,
Louis Montone 20:06
You know, one thing I can say, I have done some defense work, although very little in my career, I’ve mostly been on the individual plaintiff side, but I can share this as well as that, you know, a lot of times defense attorneys, management side attorneys, they will draft the handbooks for companies, they will put together the policies and procedures, and that does a couple of things, it creates this written documentation, so the company can use that if there’s ever any litigation that they’ve got these policies written, these procedures they follow. But it also educates the company, you know, small business that may not have the experience with these type of laws, may not have their own in-house human resources department, an attorney can help them establish that the beginning. You know, these are, these are the policies, this is how you avoid sexual harassment claims, this is how you are compliant with Title VII, and so forth. Even though it may seem obvious to us, it’s nice to have a business sort of get that education.
Jordan Ostroff 20:53
Yeah. And that, a couple weeks ago, we had Blair Jackson, from our office on the podcast, we talked about those things is, you know, it’s not just, it’s not just putting in place documents, it’s putting in place the policy and procedure to get to those documents and the training necessary to make sure that your you know, employees are following it properly.
Louis Montone 21:09
Exactly. And you know, for example, a sexual harassment claim, there’s actually a way for a plaintiff to really get you if you don’t have a policy in place. If the employer has a policy in place, and a plaintiff, an individual did not follow that harassment procedure, that’s a defense. And companies rely on that defense all the time. So you know, having those policies in place and complying with them is very important for businesses.
Jordan Ostroff 21:29
So while we’re still on, you know, the Title VII, the protected classes, you know, anything else, any other tips or tricks for our listeners as to what not to do, or, you know, little things that you’ve seen, that aren’t necessarily obvious?
Louis Montone 21:44
I think, just kind of a bigger picture thing, checks and balances seems to be important. And what I mean is that a lot of times, there’s a bad apple in a company. You know, there’s a bad someone at the management level somewhere, someone in human resources somewhere, makes mistakes, violates the law, maybe there are, maybe they are a bad person, like you said, you know, treat people, you know, nice, you know, then you won’t have these problems. But that’s, I guess, one of my tips is that I don’t know that you can ever fully trust you know, there’s always a, I think, good, a good business practice to just have other management aware of what’s going on, if you want, I’ve seen many times where one person is in charge of something, and they’re the ones violating the law, and it creates a lot of problems for a company.
Jordan Ostroff 22:24
Okay, so have those checks and balances. All right. Um, anything else on the discrimination? That stands out?
Louis Montone 22:32
No, I mean, I think that, you know, it’s hard to say, you know, I don’t think so, I think that if you really are concerned, and not that, I’m not suggesting anyone intentionally wants to discriminate, but if you just want to make sure you’re, understand these laws and understand if you’re covered by these laws, I think it’s best to reach out to an attorney, and explain, you know, what you do and have them, you know, explain it and, you know, fill up, create the policies for your business.
Jordan Ostroff 22:55
What about, and this may be more a wage and hour thing, I’m not really sure, so let me know if it is, and we’ll get to then. But what about, you know, closing the office for certain religious holidays? Or not closing the office, but letting people that celebrate that have that time off? Is that going to factor into this?
Louis Montone 23:09
Um, possibly. I honestly, I don’t know the answer to that. That’s something that, yeah, I’ve never really dealt with myself. I could see it being an issue again, only if you really were to really mess something up. But I really don’t think I can answer that.
Jordan Ostroff 23:20
Okay. No problem. Alright, so then. So let’s transition then to talking about the retaliatory stuff. I don’t know, is there anything from your standpoint, that’s going to be different on the retaliatory than is on the, you know, the termination
Louis Montone 23:32
The biggest difference is that the retaliation claims are actually easier, meaning better for the plaintiff, harder for the business. And the reason is, because there doesn’t actually have to be necessarily discrimination. You know, if someone goes and complains, you go look, I think I’m being discriminated against, because I’m Italian. And then they get fired, because they complained. That’s the retaliation claim. So maybe there was never necessarily this great case of, you know, national origin discrimination or race discrimination. But now you got a retaliation claim. And your plaintiff only has to prove that they were terminated, because they complained about it, which is a different type of analysis. So I’m not suggesting any of them are easy to win. But that’s, I think, the biggest difference between the two.
Jordan Ostroff 24:12
So from the business owner standpoint, I mean, if somebody comes in and complains about believing they’re under that, then obviously one, investigate and find out whether it’s true, but also two, I mean, you know, dot your i’s and cross your T’s on any employment evaluations or anything else.
Louis Montone 24:26
Jordan Ostroff 24:27
And if you’re going to go ahead and fire this person, I mean, really, it’s, it’s to your benefit, because they put you on notice that they think something wrong is going on.
Louis Montone 24:34
Absolutely. If everything’s on the up and up, and there’s a legitimate complaint. And look, I see that too. I see that happen all the time. There’s a lot of fantastic businesses in this area, most of them are, you know, and yeah, I mean, many times someone complains, and the company deals with it, and it takes care of whatever that, that issue was.
Jordan Ostroff 24:48
Yeah, it’s always interesting. I had, you know, my, my wife and I are constantly trying to find, you know, new TV shows, or share TV shows we like with each other. And so a couple months ago, we started watching Boston Legal which I had watched when it was on. And so you know, it’s a lawyer show, it’s kind of funny, but the amount of sexual, the amount of rampant sexual harassment in it. And I’m like, this stuff wouldn’t one, wouldn’t even make it on TV today because it’s too, it’s too bad. But two, we’re talking about, like, you know what, I bet that does go on in so many businesses even now, like just the, all sorts of stupid crap like that. And then nobody being interested in actually investigating it and it’s just, it’s, it’s mind boggling.
Louis Montone 25:24
There is and, you know, I unfortunately, I will, I will say that I’ve had many sexual harassment cases, many of them in my career. And there’s different forms of sexual harassment. And, you know, they’re very serious cases. And, and one thing, you know, tidbit I think I could throw out there for listeners that are business owners is that sometimes, you know, people are, have a playful relationship at work. You know, maybe it’s funny. Maybe it’s jokingly and, you know, sexual harassment is about unwelcome, unwelcome, harassment, unwelcome actions. That’s how it becomes harassment. And so one bit of advice I can give is, just be careful, you know, because something can turn unwelcome. Someone who was okay with certain jokes last week, but then suddenly isn’t any more, that can turn into a case as long as it’s unwelcome. Whatever you’re doing to them.
Jordan Ostroff 26:08
That’s, so if you’re, so if you’re that, if you’re truly that charismatic, it’s not sexual harassment. I, that, you heard that from Louis’s mouth right here.
Louis Montone 26:16
Yeah, I think you mischaracterized what I said there.
Jordan Ostroff 26:19
Isn’t that what lawyers do?
Louis Montone 26:22
But seriously, though, you know, I’ve had cases where you know, someone you know, maybe they were okay, with certain, if it’s welcome, it’s welcome. You know, you make jokes at work, it’s okay. But someone-
Jordan Ostroff 26:29
No, I mean, the takeaway is what was okay, last month doesn’t have to be okay this month.
Louis Montone 26:33
Right. Exactly. Right. And if it’s sexual, if its, meaning, if it’s been based on someone’s gender, a man or women, you know, you’ve got to be careful with that. And so I emphasize a lot to just, you remain professional at workplaces, because you just never know.
Jordan Ostroff 26:45
Right. So I guess, so when we’re talking sexual harassment, really, we’re talking gender discrimination, doesn’t have to be about, doesn’t have to be about sex. It doesn’t have to be crude. It can be, you know, just based upon men versus women for different things.
Louis Montone 26:56
Yeah, both exist. So you know, you could, you could fire someone because they’re a man or woman. And then the sexual harassment aspect of it is a, is more in line with what we were discussing, you know, where it’s actual sexual, you know, issues. Unwelcome behavior towards someone that is based on their gender, yes, but it’s more in the sexual, you know, in that realm.
Jordan Ostroff 27:15
Louis Montone 27:16
Jordan Ostroff 27:17
Alright. So then let’s go over to the, you know, the Whistleblower stuff, and then we’ll finish on the wage and hour thing, because I think there’s a lot that we can go over there, too. So from the Whistleblower standpoint, kind of walk me through, I mean, I’m assuming this is going to be different based upon every profession, every agency that there’s a whistle blown to I mean, etc. Is that right?
Louis Montone 27:36
Yeah, there’s a few. There’s a few different ways to do that. And, you know, we touched on, you know, just to circle back to Title VII has its own provision, right. So you know, if you complain about your, you think you’re being discriminated against that work, then you’re fired, that’s under Title VII retaliation. So all the discriminatory statutes have their own retaliation provisions. So then Florida has additional protection, where, and I’ll just give kind of a very generic, you know, explanation of it. But there’s a way where, yes, if you go before agency, it’s covered. But also, if you believe there was a violation of a law, rule or regulation, and again, it starts to get a little vague there. But if you complain to your, to your work about that, without even going to an agency, there are ways for that to be a claim. In writing about and even verbally, there are ways for that to be whistleblower slash retaliation claim as well.
Jordan Ostroff 28:22
So you’re going to, so for business owners, I mean, if somebody is complaining internally or externally, treat it the same and be treated with you know-
Louis Montone 28:29
Absolutely, yeah, you know, I’ve had a case, a case, multiple cases where someone’s, you know, fidgeting with accounting books, and they complain about, you know, hey, this is against the law, whatever this is, and then they get fired. That could be a claim. Yeah.
Jordan Ostroff 28:40
Interesting, yeah. So any other tips for our business owner listeners, when it comes to that kind of stuff?
Louis Montone 28:45
No, it really falls into the same ballpark that I said before, you really just want to have policies in place and follow your procedures, you know, obtain legal advice, it’s worth the money that you will spend on good attorneys in the beginning, to prevent these kind of issues.
Jordan Ostroff 29:00
I’m gonna have to go into Menards to include like, don’t break the law, that needs to be a policy that we don’t have in place currently, I guess.
Louis Montone 29:08
It sounds like you’ve got them. It sounds like they’re, if you’re getting all the major statutes, it’s a, it’s about not firing that person for complaining. You know, it’s, companies can make mistakes about stuff or and, you know, I won’t really get into that. But the issue, the employment issue is, you know, if someone complains that, hey, you violated, you know, such and such statute, and you’re at, your response is “all right, let’s get rid of this person.” That’s a Whistleblower claim.
Jordan Ostroff 29:29
Well, it’s, it’s funny, because when I talk to people about, you know, the employment stuff, I always, everybody thinks I’m joking, but I’m not, I prefer to hire somebody with a criminal record in the past. I prefer to hire somebody who’s been through a bad car accident, I prefer to hire somebody who’s been through, you know, running a business and had it go poorly or not, so that they can empathize with our clients a lot better. And you know, every time I tell people about I prefer people with a criminal record, everyone, like, looks at me sideways, and I’m like, look, there’s nobody here with a criminal record. But if I was looking at two, you know, one person with a DUI, one person without, but same resumes, I take the person with the DUI every day of the week, just because they, they understand more. I mean, they get, they get what our clients are going through a lot better.
Louis Montone 30:06
The empathy, I agree with you. The empathy is a big part of our profession, you know, and I, and I feel that a lot. I mean, a lot of times my clients say, look, you know, we’re talking a lot about business and I respect, again, I’ve helped businesses, I respect the business side of it, I’ve been in business myself, essentially, I’ve been in sales, like I said, but I have to empathize a lot with my clients to. I mean, someone walks into your office and truly, genuinely feels they were discriminate against, you know, because of their race, or their gender, or any of those classes. And it’s, it’s serious stuff. You know, it’s very emotional.
Jordan Ostroff 30:32
And to hammer that point home. I mean, what percentage of cases are you taking? I’m assuming, you know, you got to go through a bunch of BS claims or not viable ones.
Louis Montone 30:41
Yeah, I don’t have the exact numbers from our firm. But I know it’s a very small number. And that’s a great question, Jordan, because a lot of people, wrongful termination is the you know, people think I was fired, they automatically think there’s a legal claim. Florida’s an employment at will state which means you can be fired for any reason, even no reason. And so unless you’re under some kind of contract, unless you have some sort of union protection, most people are employed at will here in Florida. And, you know, it may be unfair, it may be mean, but unless it’s having to do with one of these many laws we’ve discussed, and we’ve only scratched the surface, you know, but if, unless it has something to do with one of these laws, probably not legal.
Jordan Ostroff 31:15
So are we talking, you know, less than 10% of leads?
Louis Montone 31:19
That’s, I believe it’s in that range. I honestly can’t say it, but I think it’s somewhere, probably around that range. Yeah, it’s very low.
Jordan Ostroff 31:24
Alright, so before we get to wage and hour, anything else we need to cover?
Louis Montone 31:28
No, I think that’s a pretty good, just general explanation of, you know, what to look out for and what I do, you know,
Jordan Ostroff 31:33
Alright, so then give me the rundown. You know, you talked about overtime law. So from your perspective for our listeners, you know, what, what are the rules on overtime?
Louis Montone 31:43
Well, there are, again, thresholds for this. But many, many companies are covered by the Fair Labor Standards Act. The FLSA is the federal law that governs federal minimum wage and overtime, which is also federal. I kind of want to talk about overtime because I think I see it a lot more, it’s very easy to violate that. Overtime is when you’ve worked more than 40 hours in one week, it’s not two weeks, it’s not the bi weekly pay period. It doesn’t matter what your internal accounting process is, it’s a 40 hour a week thing. And so, you know, many companies just don’t pay that premium, which is time and a half for every hour over 40. Now say this, there are many, there are some exemptions to that rule. And there are many regulations that you know, someone’s paid straight comissions, you know, instead of getting an hourly rate. There are a lot of other ways that people are paid. And so there are a lot of different analysis that we have to do to see if there’s actually a violation or not, to see if they were really paid properly. If that makes sense. It gets kind of complicated.
Jordan Ostroff 32:38
When, when does the week restart?
Louis Montone 32:43
I believe you can do that how you’d like, I have to check that, I think it’s every regulation, but I believe you can just start how you want to, like you can do Monday to Monday, I don’t think that necessarily matters. It just, it can’t be the bi weekly thing. Like, you know, if you worked 80 hours, if you work 45 hours in two weeks, but those five hours were all in the first week, you worked 45 the first week, that’s over.
Jordan Ostroff 33:03
I wonder how many businesses will do like Wednesday to Wednesday for their week so they can you know, sneak people in or something?
Louis Montone 33:09
Yeah, you know, and again, I’m not sure because I’m just on that side of it. I mean, typically, it’s a generic, you know, Monday or Sunday, start time. And, and, you know, for hourly employees, you know, they’re usually punching in but um, biggest mistake of business could do is not have accurate records of the time sheets and everything. That’s how they get trouble.
Jordan Ostroff 33:26
And so it’s not, somebody can work 10 hours in a day, that’s not over time, once you get past eight, it just has to be over 40 for the week, correct?
Louis Montone 33:34
Jordan Ostroff 33:34
Okay. What are some of the other things that you see when it comes to the overtime issues?
Louis Montone 33:40
Well, it’s usually the documentation of it, that’s usually where, there just aren’t clean, accurate records. And the burden is on the employer to keep those, believe it or not. It may sound unfair, but the way these laws are written is that you know, they don’t feel wage and hour claims, whatever, be possible if an employee was to be in charge of like business records, so the employer has the burden under the overtime law to maintain proper records. And a lot of times the fight is over that, you know, the employer, employee tells me I work 10 hours every week over time, so I start doing the math, and the numbers start to get pretty big pretty fast. And then the employer says, that’s impossible, this person never did that. That’s just, that’s just complete lie. Well, if there’s proper documentation of it, it’s a lot easier to beat the case, you know, and so like any legal dispute, you know, you want to be as far away from the gray area as possible on that.
Jordan Ostroff 34:27
I mean, and proper documentation. That could be an email from the employee to the employer, hey, these are my hours for last week, right? I mean, it doesn’t have to be a formal punch card or something along those lines.
Louis Montone 34:36
It doesn’t have to be but the formal, the electronic punch cards are best. And a lot of issues are not the hourly people. We’re kind of discussing hourly people in this example. Salary people can be eligible for overtime too, that’s a very common violation, it’s called the misclassification. You know, sometimes people believe that if you’re on salary, automatically, you are exempt from over time. That’s not correct. It’s not automatically that, there’s a, there are certain elements that have to be met for each exemption. And so that’s another very common violation.
Jordan Ostroff 35:06
Can you walk me through that a little bit more detail?
Louis Montone 35:08
Yeah. You know, as attorneys were exempt, just give you one of the easy examples. So there’s a professional exemption. So other exemptions, there’s an exemption called the administrative exemption. And what it’s looking for is, there’s been some potential changes in the the weekly wage that’s required, it was $455 per week. And, you know, we’ll get into that, but that’s been in litigation, whether they’re going to raise that or not, it’s a political issue right now. But that’s the first element and a lot of businesses, they think that that’s it, they think that you’re salaried, you are not entitled to overtime, it’s not that simple. That’s the first element, so dependent on their job duties. So when you think through, what’s an easy example, because they’re not actually that easy, but certain jobs are exempt. Certain jobs, there’s, you know, legal cases where they’ve been deemed exempt, essentially, but, actually, let me use the, the management one, there’s a management exemption, that’s easier. If someone is supervising two or more, what is the equivalent of full time people, that’s one of the main things we’re looking for under that exemption. So that’s an easier one, it’s a little more measurable, you know, so if someone that’s called a supervisor, you know, their title’s manager, but they don’t actually supervise anyone, then there’s a good chance, they’re not going to fall under that exemption, and they’re entitled to overtime.
Jordan Ostroff 36:22
Now, is that something though, that you can contract away, like, I can pay you $50,000 a year with the understanding that you’re going to work 45 hours a week or something along those lines,
Louis Montone 36:33
You cannot contract away this stuff, you can only minimize the payment. So for example, in your example, if you wanted to pay someone, like if you’re pay is for their full time, they don’t have the time and half premium, there’s ways to calculate that so that you are only owing them the half time on those additional hours. So if your contract says I pay you X amount for all your hours worked, so if you work 50, then they get their straight rate for that 50. But you still own that halftime premium if they’re eligible. So again, it’s case by case, it’s very fact intensive. And it depends on how you pay them. There are a lot of different regulations. So I’ll just give you sort of a generic example.
Jordan Ostroff 37:10
All right, um, what, I mean, anything else on the overtime stuff? I know, it’s a lot.
No, yeah, it is a lot. I mean, I think that just generally speaking, you know, if it’s an hourly employee, which is the most traditional thing, you know, your records are very important. And then for the salary people, it goes back to what I said, you know, is that it’s, you probably want an employment attorney to audit your staff to, what I’m talking about, they’ll do that beforehand. And you could run that by an attorney first and then decide all right, or even you go through the department of labor, you can get, essentially the green light. And then if someone tries to sue you later, you have some support to say, well, look, I’m, the only reason I pay them like this is because my attorney said so or because, you know, department of labor said so.
So, and then from the, from the wage stuff, I mean, I know, you know, Lyft and Uber, there’s a ton of litigation going on now with a lot of that stuff, the independent contractor versus the employee. I know there was a big one recently with a lot of restaurants not paying minimum wage, but they were having the waiters and waitresses, you know, fold towels and napkins and all that.
Louis Montone 38:15
Jordan Ostroff 38:15
So what is, you know, is there an overall thing to look for for the wage stuff? Or, I mean, how does somebody know?
Louis Montone 38:25
Well, I think you just know your business. So if you’re, you know, Uber is a very different type of business than a restaurant. So it again defaults to ask the attorney to audit the type of job duties your employees have. Because those are two totally different things, the, the people who are working for some of these, like car sharing companies, they’re misclassified as independent contractors, potentially, that’s the fight that they’re having. So the misclassification, I mentioned already, and I don’t want to get too complicated with this and kind of bore everyone with all the legal lease of it, but you can misclassify someone as being exempt under the overtime laws, or you misclassify someone as being an independent contractor when they’re not. So if you just say, here, you’re an independent contractor, I write that on your job, you know, application, that doesn’t mean they’re an independent contractor, there are different elements to look for. So you need an attorney to audit that. If you’re a restaurant, same thing. You know, if you have people who are involved in tipping, and sharing tips, you have to make sure that you’re doing that correctly. There’s a lot of ways to violate that.
Jordan Ostroff 39:21
And so, I guess the legal analysis from that standpoint, is you’re looking at the tips as basically commission.
Louis Montone 39:28
It’s part of their pay. And, you know, one common thing I see is that, you know, back of the house employees get tips when they’re not supposed to, so you have to look at, however, they’re getting paid, however, your restaurant does it, they have to make sure that they’re not violating the overtime law, I’m not sure how to explain it other than just depends on the facts. You know, you have to have someone really audit like, what is it that you guys do? And then make sure you’re not breaching the FLSA.
Jordan Ostroff 39:50
But like, the rationale from the restaurant stuff is you’re having them do non-waiter or waitress work, you’re having them do things that aren’t going to lead to tips for them but still paying them less than minimum wage? Or is that not the legal analysis?
Louis Montone 40:04
I think that if someone is tipped, you would, you would have that understanding in the beginning, if I’m understanding your question. So someone would be, there’s a tip credit. So you can pay someone less than minimum wage. Is that what you’re referring to?
Jordan Ostroff 40:15
Right. So my, look, this is your area of law, this is not my area law, we deal with the restaurant owners more. But one of the, you know, one of the things that I came across that was the was the issue with this was you’re basically pulling these people away from working a table for tips, to have them fold napkins, to have them put together silverware, to have them, you know, whatever it is along those lines. And then by doing that, you know, the business doesn’t have to pay somebody minimum wage to do that they can pay the waiter or waitress less than that. And so like, is that, is that where the issue is that you’re having them do work, they’re not going to get the tips on? Because basically, the tips are supposed to get them above minimum wage.
Louis Montone 40:50
Right. In your scenario, I mean, I think it could be a problem. But what I usually see, to answer your question, what I usually see is just they’re, they’re waiting their tables and they do that kind of work, you know, they fold napkins, they do all that. And the problem is who’s getting the share of tips, that’s usually the problem, it’s that they pull together all the tips for the night. And then it’s only supposed to go to certain people that have certain jobs, where they’re getting that tip credit, where the restaurant is only paying, the restaurants paying the, the amount below minimum wage. So then if the cooks in the back are getting a share of those tips, that’s what we’re looking for. That’s one example of it. There are other ways that it can be violated, potentially.
Jordan Ostroff 41:27
So it’s not necessarily them doing that work, it’s them getting screwed out of the tip pool.
Louis Montone 41:34
Yeah. And I think your example, though, I think I’ve seen, I think it’s possible to have issues with that too, where someone maybe is making a different rate, depending on what their duties are. But that’s a whole different issue I’m not too familiar with to be honest with you.
Jordan Ostroff 41:46
Now, do you guys do a lot of litigation about the independent contractor thing? Or is that something that doesn’t really come across your desk?
Louis Montone 41:52
Oh, it’s possible. Just, I think a lot of cases that I have are, that’s not really the fight. The fight’s really over just, did they work over time? How many potential hours and whether they were exempt? Meaning under the FLSA exemption that I mentioned before. You know, are you supervising two or more people to give you that supervisor exemption, for example? So I mean, I see some independent contractor stuff. Yeah. But in my practice, I don’t think it’s as done as, you know, as prominent as just a regular, the regular fights.
Jordan Ostroff 42:22
Because what’s, I mean, from your standpoint, what’s the recovery in that? The recovery is going to be payroll tax that should have been paid by the employer?
Louis Montone 42:28
For an overtime claim?
Jordan Ostroff 42:29
No, no, for the independent contractor stuff?
Louis Montone 42:32
Oh, well, the biggest issue would be that, for me, just in my carved out area of law would be that they might have been entitled to overtime, and the contract was not eligible for overtime. So if someone comes in, and they worked a ton of overtime, and let’s say the job duties all line up as an employee that should have been paid overtime. And the company’s defense was oh, no, no, they were an independent contractor. There, they don’t, they don’t qualify it, or they’re not an employee, in other words, because after let’s say, it only covers employees, that would be the fight and all the money to go.
Jordan Ostroff 42:57
So you’re not worried about payroll tax, you’re not worried about the social security being calculated differently? You’re not worried about that stuff?
Louis Montone 43:04
I would say no, from the standpoint of like my practice. Right, right. Right. Yeah.
Jordan Ostroff 43:07
Gotcha. So then, I guess then just briefly, so let’s finish up with what, what are some of the things you’re looking for, for that independent contractor stuff to have overtime kick in?
Louis Montone 43:18
Well, it’s another complicated test, meaning there are different tests. You know, for example, the IRS has many elements look at but just to really summarize it, you’re looking for the control the employer has over the, over the person. Do they control their hours? When do they work? Do they control, you know, provide the tools that they work with? Can that person, you know, true, independent contractors free to make their own hours is free to work for someone else, I, you know, I can work for you. And I can also carve out my week and work for my other guy, you know, I’m a painter, I’m a landscaping company, I don’t need you to tell me how to do my job. And when to do it necessarily. So there are many elements, I won’t go into all of them. But those are some of the main ones that, you know, that are part of that assessment.
Jordan Ostroff 44:01
Gotcha. So, so you’re basically kind of doing what are common sense analysis on the level of control the business operates over them.
Louis Montone 44:08
Yeah. And again, there’s an IRS test. And there are some other ones too, there are some case laws, some different things. There are several factors, but the financial control, the behavior control, you know, it’s a, there are a lot of things that are in the essence of what I said, but that you look at to sort of align the facts with, okay, is this person truly independent or not? And so it’s very, it’s very gray and there’s a lot of fights over this stuff. Okay.
Jordan Ostroff 44:29
Yeah. So anything else that our listeners need to know regarding the wage and hour stuff? The overtime stuff, discrimination? I mean, we’ve covered a lot in this.
Louis Montone 44:37
Yes, I think that no, I think I’ll just end with, you know, I think that, and it’s such an attorney answer, you know, but go, if you have any questions about what we’ve talked about today, you know, it’s, you don’t know what you don’t know. And I’ve seen a lot of violations that people just didn’t know, especially wage and hour stuff, you know, they don’t know how it works, they are not being advised by attorneys. So that would be my one takeaway, really to remember from this is that you know, this is just, you know, general information we’re giving, you know, obviously, it’s like, it’s really, you know, go sit formally with an employment attorney, explain the job duties, if you think it’s an audit issue with with payroll, and so forth. If it’s the policies on discrimination, I think that’s the most important thing is is check things out first.
Jordan Ostroff 45:17
All right. So from a business standpoint, from an employer standpoint, if you have any of these issues, you know, give us a call JordanLawFL.com or 407-906-5529. And then if you’re the employee from the employee side, trying to see if your employer has done this correctly, then feel free to contact Louis at
Louis Montone 45:37
Yeah, I’m at the Leach Firm here in town and my direct line is 321-441-4103.
Jordan Ostroff 45:44
Can you do the phone number one more time?
Louis Montone 45:45
Sure. It’s 321-441-4103.
Jordan Ostroff 45:51
All right. So before we finish on the way we finished all these podcasts, you know, we are still a relatively new podcast. I think this is going to be about Episode 15 or 16. You know, we’re on Stitcher, Last.fm, iTunes, everywhere, but if you’ve listened to it and you’ve enjoyed please, please, please leave us an honest review. Hopefully a five star review. I mean, at the very least we get good guests on here if not for me. So you know, at least a, an honest five star review for our wonderful guests. Alright, so here we are, we’re at the end, where all these end. If somebody has listened to this, and they take nothing else away, except this one thing. What is that one piece of advice that you hope all of our listeners remember?
Louis Montone 46:31
It’s such a generic answer, but it’s just my words, my universe. If you think there’s an issue with any of these things, everything that you do at work has some law that governs it, your wages, your you know, your protected classes, your leave, you know, maternity leave, paternity leave. You have to go to an attorney. I have a lot of family friends that ask me the one takeaway is if something doesn’t smell right to you, you feel like you’ve been treated wrong, or you’re a business about to make a decision, and you’re scared about it, go pay an attorney and get a consultation and establish a relationship with someone so that you can be advised professionally.
Jordan Ostroff 47:00
Yeah, the, an ounce of prevention is worth a pound of cure, a stitch in time saves nine, the early bird gets the worm. I mean, it’s all.
Louis Montone 47:07
You know, this is my practice area. I’m sure it applies to many others but in this one, I mean, it is just yeah, prevention is key. And even if you’re an employee, obviously, you know what I do, you know, come come talk to me, come talk to us. I do a lot of consultations for people that are still employed, you know, and that they’re not sure what’s happening and if it’s legal or not. Happy to talk to you. I do free consultations on my end. So I’m happy to, to vet your situation with you and you know, see if there’s a problem or not.
Jordan Ostroff 47:29
All right. Thank you so much for joining us.
Louis Montone 47:32
Thanks for having me, Jordan, appreciate it.
You’ve been listening to “Let’s Get Up to Business” from Jordan Law. We hope you’ve enjoyed the podcast and would consider sharing the show. We would also love an honest five star review through iTunes, Spotify, Stitcher, or whatever pod catcher you use. If you are interested in being a guest on the podcast, please contact Producer Mark through email at [email protected] Use the subject line “podcast guest” in your email. Thank you. We look forward to speaking to you again soon.
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