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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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

EEOC Issues Strategic Enforcement Plan

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 vulnerable workers from disparate pay, … Continue Reading

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

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, the employer
Continue Reading

NLRB Representation Rule Still Invalid

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 his earlier decision,  Judge … Continue Reading

Confidentiality Directives May Violate The NLRA

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 the National Labor Relations Act … Continue Reading

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

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 advise employees that their “at-will” … Continue Reading

Supreme Court Upholds Health Reform Law

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 March of 2010, is almost … Continue Reading

The Supreme Court Issues Its First Exemption Decision

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 sell prescription drugs, … Continue Reading

Federal Court Finds DOL Properly Categorized Loan Officers As Non-Exempt

In Mortgage Bankers Association v. Solis et al., Case No. 1:11-cv-00073 (D.D.C. June 6, 2012), U.S. District Judge Reggie B. Walton ruled that the Department of Labor (“DOL”) lawfully acted within its discretion when, in 2010, it stated that mortgage loan officers are not generally exempt from overtime pay. Judge Walton held that the DOL did not violate the … Continue Reading

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

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 the case, a former employee … Continue Reading

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

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 text, congressional intent and … Continue Reading

NLRB Issues Third Social Media Report

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 a policy that would … Continue Reading

NLRB Member Terence F. Flynn Resigns

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.

Mr. Flynn was sworn in … Continue Reading

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

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 conflicts with the National Labor … Continue Reading

NLRB Suspends Implementation Of Representation Case Process Changes

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, if it had been approved, … Continue Reading

NLRB Seeks To Invalidate Arbitration Agreements

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 operates centers across the country, … Continue Reading

Private Internships Must Almost Always Be Paid

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 a six-factor exclusion test … Continue Reading

NLRB Acting General Counsel Issues Memo on New Representation Case Procedures

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 rules are:

1) An explicit … Continue Reading

NLRB Stays Implementation of Notice Posting Rule

The D.C. Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board’s Rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.  In  light of this order, the Board has stated that regional offices will not implement the Rule, pending the resolution of the issues before the DC Circuit Court.  … Continue Reading

South Carolina Federal Court Strikes Down NLRB Notice Posting Rule

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 the United States, et al. Continue Reading

Negative Consequences May Flow From Workers’ Compensation Denial

Your company just won its workers’ compensation case, and the employee was denied benefits.  Time to celebrate, right? WRONG. You may have just bought yourself a civil lawsuit for damages.

In Ocean Reef Club, Inc. v. Wilczewski and Leon, No. 3D09-2779 (Fla. 3d DCA March 21, 2012), the Third District Court of Appeal made two findings of which all … Continue Reading

New EEOC Rule Is Good News For Employers

Do you ever get the idea that all developments out of Washington, DC are bad for employers?  Well, at least in this instance, there is some good news for a change.

On March 29, 2012, the EEOC issued its Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under The Age Discrimination in Employment Act.

The U.S. … Continue Reading