Scott T. Silverman

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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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New Fair Credit Reporting Act Form For Employers

By Scott T. Silverman on Posted in Employee Handbooks & Policies
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 … Continue Reading

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

By Scott T. Silverman on Posted in Wage & Hour
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 … Continue Reading

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

By Scott T. Silverman on Posted in Labor Relations
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 … Continue Reading

Recess Appointments To Board Invalid – Summary Of Affected Decisions

By Scott T. Silverman on Posted in Labor Relations
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 … Continue Reading

EEOC Issues Strategic Enforcement Plan

By Scott T. Silverman on Posted in Employment Discrimination Harassment & Retaliation
On September 4, 2012, the EEOC issued a draft of its Strategic Enforcement Plan (“SEP”) for public comment.  The EEOC identified the following nationwide priorities: (1) eliminating systemic barriers in recruitment and hiring by targeting class-based intentional hiring discrimination and facially neutral hiring practices that have an adverse impact; (2) protecting immigrant, migrant and other … Continue Reading

Do the NLRB’s and the EEOC’s Confidentiality Standards Conflict?

By Scott T. Silverman on Posted in Labor Relations
The recent NLRB ruling on confidentiality of interviews, which we previously discussed here, may conflict with the EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (the “Enforcement Guidance“). The Enforcement Guidance establishes that “[w]hen harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, … Continue Reading

NLRB Representation Rule Still Invalid

By Scott T. Silverman on Posted in Labor Relations
On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s (“Board”) motion to reconsider his holding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011.  In … Continue Reading

Confidentiality Directives May Violate The NLRA

By Scott T. Silverman on Posted in Labor Relations
In keeping with its current interest in examination of standard practices of non-union employers, the National Labor Relations Board (“Board”) has now held that the common directive to employees to not discuss matters under investigation with co-workers may interfere with, restrain or coerce employees in the exercise of their statutory rights under Section 7 of … Continue Reading

Can An “At-Will” Employment Disclaimer Violate the NLRA?

By Scott T. Silverman on Posted in Labor Relations
The National Labor Relations Board (the Board) has started to move aggressively against “at-will” employment disclaimers that many employers include in their handbooks. Typically, employers include an “at-will” employment policy, which states that employees may be terminated at any time for any lawful reason, with or without notice and with or without cause.  Further, employers … Continue Reading

Supreme Court Upholds Health Reform Law

By Scott T. Silverman on Posted in Employee Benefits
The United States Supreme Court (the “Court”) issued a historic holding today, June 28, 2012.  The Court has ruled that the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Tax Credits Reconciliation Act of 2010 (collectively, the “Health Reform Act”), which had been signed into law in late … Continue Reading

The Supreme Court Issues Its First Exemption Decision

By Scott T. Silverman on Posted in Wage & Hour
In Christopher, et al. v. SmithKline Beecham Corp., d/b/a GlaxoSmithKline, No. 11-204 (June 18, 2012), the Supreme Court held that pharmaceutical sales representatives qualify for the “outside salesman” exemption to the Fair Labor Standards Act and are, therefore, not entitled to overtime compensation for hours worked over 40 in a workweek.  Because representatives do not actually … Continue Reading

Employers Must Carefully Draft Attorneys’ Fees Provisions In Non-Compete Agreements

By Scott T. Silverman on Posted in Employment & Consulting Contracts
In Rogers v. Vulcan Manufacturing Co., Inc., No. 11-3927 (Fla. 1st DCA June 1, 2012), the First District Court of Appeal explained that employers must carefully draft non-compete agreements to avoid owing attorneys’ fees to former employees who do not pay for their own defense, but, rather, have it funded by a subsequent employer.  In … Continue Reading

Eleventh Circuit Recognizes Retaliatory Hostile Work Environment As A Viable Cause of Action

By Scott T. Silverman on Posted in Employment Discrimination Harassment & Retaliation
In Gowski v. Peake,  No. 09-16731 (11th Cir. June 6, 2012), the Eleventh Circuit held that claims of a retaliatory hostile work environment are cognizable under Title VII.  The court reasoned that all other federal circuit courts have recognized this cause of action, and, further, that allowing such a claim is consistent with the statutory … Continue Reading

NLRB Issues Third Social Media Report

By Scott T. Silverman on Posted in Labor Relations
On May 30, 2012, the National Labor Relations Board’s (“Board”) Acting General Counsel, Lafe Solomon, issued his Third Report on Social Media Cases. This Report describes the restrictions on employee use of social media that an employer may lawfully include in its policies. Under the National Labor Relations Act (“Act”), an employer may not implement … Continue Reading

NLRB Member Terence F. Flynn Resigns

By Scott T. Silverman on Posted in Labor Relations
On May 26, 2012, Board Member Terence F. Flynn submitted his resignation to  President Barack Obama and to NLRB Chairman Mark Gaston Pearce.  The resignation is effective July 24, 2012.  However, Mr. Flynn immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB. … Continue Reading

Middle District Judge Disagrees With NLRB Over Class and Collective Action Waivers

By Scott T. Silverman on Posted in Labor Relations
In a decision filed on May 18, 2012, Oliveira v. Citicorp North America, Inc. and Citigroup, Inc., Case No. 8:12-cv-251-T-26TGW (M.D. Fla. 2012), Judge Richard A. Lazzara of the Middle District of Florida held that a complete waiver of class and collective actions in either a judicial or arbitration forum was enforceable.  This decision directly … Continue Reading

NLRB Suspends Implementation Of Representation Case Process Changes

By Scott T. Silverman on Posted in Labor Relations
According to a D.C. federal court, another regulation issued by the National Labor Relations Board (the “Board”) is unlawful.  This time, the Board’s so-called “quickie election” rule, which would shorten the time period between an union petition and the election, has been struck down.  This is an important outcome for employers, because the new regulation, … Continue Reading

NLRB Seeks To Invalidate Arbitration Agreements

By Scott T. Silverman on Posted in Labor Relations
On April 30, 2012, the National Labor Relations Board (“Board”)  issued a complaint alleging that 24 Hour Fitness USA, Inc. violated the National Labor Relations Act (“Act”) by requiring that all employment disputes be resolved by an arbitration in which only individual, and not class or collective, claims could be brought. 24 Hour Fitness, which … Continue Reading

Private Internships Must Almost Always Be Paid

By Scott T. Silverman on Posted in Wage & Hour
With the summer almost upon us, private, for-profit companies may be thinking of high school or college students as a resource for unpaid labor, through “summer internships.”  This is almost always unlawful! According to the Department of Labor (“DOL”) Fact Sheet, internships in the “for-profit” private sector will most often be viewed as employment, unless … Continue Reading

NLRB Acting General Counsel Issues Memo on New Representation Case Procedures

By Scott T. Silverman on Posted in Labor Relations
Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30.  Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged.  Briefly, the changes to the … Continue Reading

South Carolina Federal Court Strikes Down NLRB Notice Posting Rule

By Scott T. Silverman on Posted in Labor Relations
On Friday, April 13, 2012, the United States District Court for South Carolina held that the National Labor Relations Board (“NLRB”) exceeded its authority when promulgating a rule which requires that all employers subject to the jurisdiction of the National Labor Relations Act (“NLRA”) post a notice of employee rights.  In Chamber of Commerce of … Continue Reading
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