Bad employees can throw a workplace into disarray, tarnish an organization’s reputation or cause substantial financial damage. A complaint alleging discrimination, sexual harassment or unjustified termination is a serious matter for any company.
“My clients have my mobile phone on speed dial,” said Susan N. Eisenberg, a partner with Cozen O’Connor in Miami with more than 25 years of experience representing employers. “While I stay in close touch to advise them on this evolving area of the law, there are always questions about the best way to handle specific situations.”
For instance, how should employers react when someone posts negative information on social media? Should there be a policy regarding political conversations on the job? And what steps can employers take to guard against sexual harassment or violence in the workplace?
As a board-certified labor and employment attorney, Eisenberg has been asked all those questions – and more. “Let’s say you are concerned about theft in the workplace,” she said. “So, you put up video cameras and post a sign letting employees know their actions will be observed. But you’re not allowed to put a camera in the bathroom, even if that would help identify the thief.”
Sexual harassment is another timely issue for South Florida employers, following a wave of claims this year against high-profile celebrities, politicians and CEOs. “As an employer, you need to have a sexual harassment policy, train your people and investigate these allegations,” she said. “Now is a good time to resend your anti-harassment policy to everyone with a reminder about how to report an incident.
Counseling employers on employment issues is the other major aspect of Eisenberg’s practice. She reviews employment documents, advises on organization policies, helps set up training programs and conducts workplace audits. She also enjoys the due diligence aspect of merger and acquisition (M&A) assignments.
“Susan is a rock star labor attorney,” said Lisa Gefen Sicilian, chief administrative officer, Kaplan Higher & Professional Education in Fort Lauderdale. “She is smart, perceptive, business-oriented, funny and a real partner. She’s a good listener who takes the time to understand an issue before reacting. She also treats each case individually, rather than applying the same approach. You couldn’t pick a better lawyer.”
Eisenberg is also an experienced litigator, handling cases related to the Fair Labor Standards Act (FLSA), which covers minimum wage, overtime pay, record keeping and youth employment rules. She is one of the authors of the premiere treatise on the topic, titled “The Fair Labor Standards Act.”
She also litigates cases involving equal employment, discrimination, retaliation and other types of claims under federal and state labor laws. “I handle a great many discrimination cases, which are always fact intensive,” she said. “For me, a trial is like a Broadway show, where you have to tell a compelling story, present the salient points and help the jury to understand your client’s side.”
From Pharmacy to the Law
Growing up in the Detroit area, Eisenberg was interested in a medical career. She earned a bachelor’s degree in pharmacy from the University of Michigan and worked as a pharmacist in both hospital and retail settings.
But she didn’t enjoy that role and talked with a job counselor about other possibilities. “He suggested law school, and urged me to take the LSAT,” she said. “I did well and decided to enroll at the University of Miami School of Law, since most of my extended family was living here.”
At the University of Miami, Eisenberg was a member of the law review and president of the Moot Court Board before earning her juris doctor. She then joined Akerman planning to focus on medical malpractice cases, but soon found herself immersed in employment litigation and other cases. She was with Akerman for more than 20 years, before joining Cozen O’Connor in 2015,
Eisenberg has been a Fellow of the College of Labor and Employment Lawyers since 2007, and regularly speaks on employment issues for the American Bar Association, Practicing Law Institute, and American Conference Institute. She is a founding member and is past president of the Wage and Hour Defense Institute, and former president of the Academy of Florida Management Attorneys. In addition to her litigation and counseling practice, she is an arbitrator with the American Arbitration Association and a Certified Mediator.
When not at the office, courtroom or counseling clients, Eisenberg enjoys time with her family, as well as reading, travel and exercise. Her husband Steven Eisenberg is an attorney with Eisenberg Lehman PLLC in Coral Gables. They have four children, twins Alex and Zach, Hailey, and Arielle, who is an attorney in Atlanta.
Advising Employers on Timely Issues
Understanding federal and state employment laws, creating appropriate policies, enforcing them consistently and documenting individual decisions are crucial steps for today’s employers, according to Eisenberg. “I have never met an employer who intentionally violated the labor laws, but it’s easy to make a costly mistake if you aren’t careful.”
Many of the errors Eisenberg sees are related to overtime requirements. For instance, a performance bonus or a shift differential payment could raise an individual’s overtime pay rate. A manager who requires employees to be on the job 30 minutes before they can punch in could be violating the FLSA’s overtime rules, she added.
“Don’t rely on a payroll-processing company to manage those types of wage-and-hour issues, she said. “Those firms work with the information you turn in.”
Another common mistake is classifying a salaried positions as exempt from FLSA overtime requirements. “You also have to look at the employee’s duties and responsibilities, which can change from time to time. For instance, a supervisor might wind up in a nonexempt role if all her subordinates are laid off.”
Thanks to advances in technology, many employers are offering flexible schedules and work-at-home options for their employees. But you should think about the legal issues before implementing such a program, Eisenberg said.
“It’s hard to monitor an employee working at home, so you should implement some type of system to track the hours spent on the job,” she said. “In general, you should offer this option to good performers that you can trust – not to an employee who comes in late every day or has been subject to disciplinary action.”
Working from home might also require employers to comply with the provisions of the Americans with Disabilities Act (ADA), such as paying for special desks and chairs, bigger monitors or audio devices. Another issue is workers compensation: If an employee trips and falls while working at home, does insurance coverage kick in?
Finally, Eisenberg advises taking a fair and consistent approach to documenting a problem employee’s actions and performance on the job. “But once you have made the decision to terminate do it quickly. It may not be easy, but it’s usually the best approach to keep your organization moving forward.”
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