Scott T. Silverman

Scott T. Silverman

Adept at navigating complex labor and employment matters, Scott Silverman is noted by Chambers USA for being “expeditious” and “excellent at providing all points of view.” His range of experience includes representation of employers in administrative proceedings, federal and state court litigation, and arbitrations. Although he has worked on a variety of labor and employment issues throughout his career, Scott’s practice has emphasized labor management relations, employment discrimination, non-compete/trade secret, wage and hour, and retaliation claims. Complementing his litigation practice, he advises employers on day-to-day matters, and drafts manuals and contracts for his clients.a

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The New Salary Regulations: The Saga Continues

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect.… Continue Reading

NLRB Changes Standard for Determining Joint Employer Status

The NLRB has issued a landmark decision changing its current standard for assessing “joint employer” status in both unionized and non-union workplaces. This is significant, because, even if the company is not the actual employer of workers, the company may be required to bargain with a Union and held liable for unfair labor practice charges if found to be a … Continue Reading

The NLRB Expands Its Reach in the Non-Union Workplace

The National Labor Relations Board continues to infiltrate the workplace even where there are no unions. Standard workplace policies — including those relating to employee conduct, protecting intellectual property, use of personal electronics, and conflicts of interest — are unlawful, according to a recent memorandum issued by the NLRB General Counsel. Basic contract and policy provisions requiring employees to maintain … Continue Reading

EEOC: Sexual Orientation Discrimination Illegal Under Title VII

The EEOC has found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964. On July 15, 2015, the EEOC reversed the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected … Continue Reading

Department of Labor: Most Workers Classified As Independent Contractors Are Employees

On July 15, 2015, the Wage and Hour Division of the Department of Labor declared that most workers who are classified as independent contractors are actually employees and cited the erroneous designation of employees as independent contractors to be “one of the most serious problems” at workplaces in the United States. The DOL issued an “Administrator’s Interpretation” that … Continue Reading

EEOC Encouraged to Address Social Media and “But-for” Causation in Revising Guidance on Retaliation

At a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace.… Continue Reading

EEOC Broadens Pregnancy Discrimination Protections

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued an updated enforcement guidance on pregnancy discrimination and related issues, and significantly widened the employee protections. The guidance addresses requirements under the Pregnancy Discrimination Act (“PDA”) and the application of the Americans with Disabilities Act, (“ADA”), as amended, to pregnant women.

Initially, the guidance sets out the PDA requirements … Continue Reading

The NLRB Invades The Non-Union Workplace

Employers beware!  Although the Board’s attempt to require employers to post a notice of employees’ federal rights has been defeated, the agency remains active in its regulation of the non-union workplace.  The Board now has a full complement of members, with a Democratic majority, and is posed to continue to render decisions that will impact all places of work.

Too … Continue Reading

EEOC Obtains Record Relief From Companies

On Monday, December 16, 2013, the EEOC announced that it had obtained $372.1 million in relief from private companies during the 2013 fiscal year, which is a record in monetary benefits collected through enforcement actions.

According to the EEOC’s Performance and Accountability Report for fiscal year 2013, which ended September 30, 2013, this figure represents a $6.7 million increase over … Continue Reading

NLRB Has Full Complement Of Board Members

The Senate confirmed all five of the President’s nominees to serve as National Labor Relations Board (the “Board”) members on July 30, 2013.  This gives the Board a full complement of Senate-confirmed members for the first time in a decade.

The Board now includes Democrats Board Chairman Mark Gaston Pearce, whose term was set to expire in August, Kent Hirozawa, … Continue Reading

Don’t Forget To File Your EEO-1 Reports

All private employers who are subject to Title VII and have at least 100 employees must file the Employer Information Report (“EEO-1 Report”). The Equal Employment Opportunity Commission (“EEOC”) requires that the EEO-1 Report must be filed by September 30, 2013.  In addition, private employers who have fewer than 100 employees, but are owned or affiliated with one or more … Continue Reading

Employer Affordable Care Act Mandate Delayed

The Treasury Department has just announced that the employer penalty provisions of Health Care Reform, which were set to go into effect on January 1, 2014, will now be delayed until 2015. The delay applies only to the employer penalty provisions and certain related information reporting requirements. At least for now, the implementation of the Health Insurance Marketplaces (Exchanges) and … Continue Reading

Florida’s Unemployment Process Violates The ADA – Warning For Employers

Florida’s requirement that applicants for unemployment insurance apply over the Internet and take an online skills test discriminated against the disabled, because they could not easily access the computerized process, according to the Department of Labor’s Civil Rights Center. The determination came in a case lodged by the Miami Workers’ Center and the National Employment Project, which claimed that disabled … Continue Reading

NLRB General Counsel Suggests Language That Complies With Banner Health

In a memorandum dated January 29, 2013, but made public on April 16, 2013, the NLRB’s Office of General Counsel, while confirming that an employer’s blanket confidentiality rule, which precludes employees from disclosing information about ongoing investigations into employee misconduct, is unlawfully overbroad under the Board’s decision in Banner Health, 358 NLRB No. 93 (2012), held that an employer’s … Continue Reading

DOL Reports Widespread Wage and Hour Violations at Tampa Area Restaurants

Widespread violations of the Fair Labor Standards Act’s minimum wage and overtime provisions have been found during an ongoing enforcement initiative conducted by the Department of Labor Wage and Hour Division’s Tampa office.  The initiative focuses on full-service restaurants and is being conducted in conjunction with the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco, … Continue Reading

New I-9 Form For Employers

The U.S. Citizenship and Immigration Services (USCIS) has published Introduction of the Revised Employment Eligibility Verification Form in the March 8, 2013, Federal Register. The new Form I-9 is available here. Employers should use the new form as soon as possible but have until May 7, 2013 before they will be penalized for not doing so. In addition, employers … Continue Reading

IRS Expands VCSP Program

On February 27, 2013, the Internal Revenue Service (IRS) announced its expansion of the Voluntary Classification Settlement Program (VCSP) to allow more employers to achieve certainty under the law by reclassifying their workers as employees for future tax periods.

The VCSP is beneficial for some employers because it allows employers to voluntarily reclassify their workers as employees for future tax … Continue Reading

Employers Should Ask their Insurance Agents Whether Early Renewal of Health Insurance Coverage is Appropriate

While one of the greatest benefits of the federal Affordable Care Act (“ACA”) is better access for all to quality healthcare, theoretically resulting in lower health care expenditures, there also are costs associated with the ACA. Many of these costs take the form of additional fees on participating insurers and health maintenance organizations in our nation’s healthcare system.  The federal … Continue Reading

Employers Need To Evaluate Coverage Under The Affordable Care Act Now

Beginning in 2014, “large employers” may be assessed a penalty for not providing required coverage under the employer shared responsibility mandate of the Affordable Care Act.  This does not mean that employers need not worry about whether they qualify for the mandate until 2014.  Why you may ask?

Because an applicable large employer is defined by the regulations as one … Continue Reading

New Fair Credit Reporting Act Form For Employers

Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) established the Consumer Financial Protection Bureau (CFPB), and the responsibility for interpreting and enforcing the Fair Credit Reporting Act (FCRA) was transferred to the CFPB.  Although the CFPB began most activities on July 21, 2011, the CFPB just recently issued a new form for … Continue Reading

Liquidated Damages Are Not Mandatory For FLSA Retaliation Claims In Eleventh Circuit

Deciding an issue of first impression, in Moore v. Appliance Direct, Inc., the Eleventh Circuit has held that courts have the discretion to award liquidated damages in FLSA retaliation suits.  Unlike suits for minimum wage or overtime wages, where such damages are mandatory, absent a showing of reasonable good faith by the employer, plaintiffs in a retaliation case under … Continue Reading

Employers Must Examine Their Employee Agreements for Compliance With the National Labor Relations Act

Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a decision in Quicken Loans, Inc., which found confidentiality and non-disparagement provisions to be unlawful under the National Labor Relations Act (NLRA). The decision is not surprising, and is in accord with the trend of the NLRB to find common employer conditions to violate the … Continue Reading

Recess Appointments To Board Invalid – Summary Of Affected Decisions

The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama’s recess appointments to the National Labor Relations Board (“NLRB”). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB,  pursuant to the Recess Appointments Clause of the Constitution, are made during Senate … Continue Reading

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