Labor and Employment Law Board Certification by The Florida Bar

Pursuant to Rule 6-23.2(a), the practice of labor and employment law is defined as "advice and representation concerning the application and interpretation of public and private sector labor and employment law principles, as well as employment discrimination and employmentrelated civil rights law."

The rules explains that "competent practice in labor and employment law requires a thorough knowledge of all legal aspects of the employment relationship, both in the private and public sector. This knowledge is particularly necessary to fulfill the counseling obligations of lawyers toward their clients."

For purposes of board certification in Labor and Employment Law, "the practice area encompasses both public and private sector collective bargaining and the state and federal laws that apply to the employment relationship including, but not limited to:

1. the National Labor Relations Act;
2. the Fair Labor Standards Act;
3. Florida’s public sector collective bargaining laws and career service appeals;
4. the Employment Retirement Income Security Act;
5. the Family Medical Leave Act;
6. Title VII of the 1964 Civil Rights Act and Florida’s Civil Rights Act;
7. the Americans With Disabilities Act;
8. the Occupational Safety and Health Act; 
9. the Age Discrimination in Employment Act; and
10. the regulations promulgated under the above.

The minimum standards for becoming board certified in Labor and Employment law are explained in Rule 6-23.3. 

(a) Minimum Period of Practice.

The applicant must have at least 5 years of the practice of law which at least 50 percent has been spent in active participation in labor and employment law.

At least 5 years of this practice must immediately precede the application for certification. An LL.M. in the field of labor and employment law may substitute for 1 of the 5 years of law practice required.

(b) Substantial Involvement.

The applicant must have substantial involvement by demonstrating 50 percent or more of the applicant’s practice to matters in which issues of labor and employment law are significant factors and in which the applicant had substantial and direct participation in those labor and employment law issues.

The applicant must furnish information concerning the frequency of the applicant’s work and the nature of the issues involved.

Demonstration of this requirement is made initially through a form questionnaire approved by the labor and employment law certification committee, but written or oral supplementation may be required.

(c) Experience.

The applicant must have a total of 30 days acting as the primary lawyer, judge, hearing officer, referee, master, magistrate, arbitrator, or mediator in litigation or administrative proceedings concerning labor and employment law issues within the 5 years immediately preceding the filing of the application for certification.

Proceedings include, but are not limited to:

• trials;
• evidentiary hearings;
• arbitrations;
• collective bargaining;
• conciliation conferences with the Equal Employment Opportunity Commission or state deferral agency;
• onsite inspections by the Equal Employment Opportunity Commission, Department of Labor, Occupational Safety and Health Administration, or Office of Federal Contract Compliance Programs;
• Fair Labor Standards Act audits conducted by the Department of Labor; and
• unemployment compensation appeal hearings, mediations, court hearings, taking depositions, and oral arguments.

Any proceeding lasting at least 4 hours is credited a full day. Any proceeding lasting fewer than 4 hours, but at least 1 hour, will be credited a half day.

Proceedings occurring on the same day and which are of the type for which experience credit may be given under this rule but which are not individually at least one hour in length may be aggregated for purposes of claiming credit. If aggregation is used, the applicant must aggregate all qualifying proceedings occurring during a single day to determine the total hours of proceedings and corresponding credit.

Generally, credit for a single proceeding occurring over multiple days is calculated on a daily basis. However, a single proceeding occurring exclusively in periods of less than 4 hours per day on multiple days is limited to the amount of credit the proceedings would receive if aggregated.

Conducting an oral argument at a state or federal appellate court automatically entitles the applicant to 1 full day of credit, regardless of the amount of time that is allotted to the oral argument by the court.

The applicant may also seek credit from the certification committee for activities not listed in this rule that involve labor and employment issues that are of sufficient complexity and otherwise demonstrate the applicant’s labor and employment law experience.

Experience credit to be awarded for any of these additional activities is at the sole discretion of the certification committee.

The following are not accepted as proceedings satisfying the 30-day experience requirement:

• attendance at pre-trial conferences;
• attendance at scheduling and status conferences;
• defending depositions;
• preparation of pleadings, written discovery, motions, memoranda, briefs, and position statements; and
• participation in investigations by administrative agencies unless that participation involves in-person activities including an online visit, inspection, or audit or other covered activities including hearings or mediation.

(d) Peer Review.

The applicant must submit the names and addresses of 6 lawyers who are familiar with the applicant’s practice excluding lawyers who currently practice in the applicant’s law firm to complete peer review forms.

The labor and employment law certification committee must seek at least 3 additional secondary references.

At least 1 of the 6 references must be from a judge, arbitrator, mediator, or administrator before whom the applicant has appeared or practiced (or in the case of a mediator or arbitrator seeking certification, references may be from lawyers who have appeared before the applicant) within the 2 years immediately preceding the application.

(e) Education.

The applicant must complete 60 credit hours of approved continuing legal education in labor and employment law during the 3-year period immediately preceding the application date. Accreditation of educational hours is subject to policies established by the labor and employment law certification committee or the board of legal specialization and education. (f) Examination.

The applicant must pass an examination applied uniformly to all applicants, to demonstrate sufficient knowledge, proficiency, and experience in labor and employment law to justify the representation of special competence to the legal profession and the public.

The examination will be comprehensive in scope and each applicant will be required to demonstrate at least some knowledge in each specific subject tested. 

The rules for becoming recertified as a specialist in Labor and Employment law are contained in Rule 6-23.4. 

(a) Substantial Involvement.

The applicant must demonstrate continuous and substantial involvement in labor and employment law throughout the period since filing the last application for certification.

Substantial involvement means the applicant has devoted 50 percent or more of the applicant’s practice to matters in which issues of labor and employment law are significant factors and in which the applicant had substantial and direct participation in those labor and employment law issues.

The applicant must furnish information concerning the frequency of the applicant’s work and the nature of the issues involved.

Demonstration of this requirement is made initially through a form questionnaire approved by the labor and employment law certification committee, but written or oral supplementation may be required.

(b) Experience.

The applicant must have 25 days of involvement acting as the primary lawyer, judge, hearing officer, referee, master, magistrate, arbitrator, or mediator in litigation or administrative proceedings concerning labor and employment law issues within the 5 years immediately preceding the filing of the application for recertification.

Proceedings include, but are not limited to, trials; evidentiary hearings; arbitrations; collective bargaining; conciliation conferences with the Equal Employment Opportunity Commission or state deferral agency; onsite inspections by the Equal Employment Opportunity Commission, the Department of Labor, Occupational Safety and Health Administration, or Office of Federal Contract Compliance Programs; Fair Labor Standards Act audits conducted by the Department of Labor; and unemployment compensation appeal hearings, mediations, court hearings, taking depositions, and oral arguments.

Any proceeding lasting at least 4 hours will be credited as a full day. Any proceeding lasting fewer than 4 hours, but at least 1 hour, will be credited as a half day.

Proceedings occurring on the same day and are of the type for which experience credit may be given under this rule but are not individually at least 1 hour in length may be aggregated for purposes of claiming credit.

If aggregation is used, the applicant must aggregate all qualifying proceedings occurring during a single day to determine the total hours of proceedings and corresponding credit. Generally, credit for a single proceeding occurring over multiple days is calculated on a daily basis.

However, a single proceeding occurring exclusively in periods of less than 4 hours a day on multiple days is limited to the amount of credit the proceeding would receive if aggregated. Conducting an oral argument at a state or federal appellate court automatically entitles the applicant to 1 full day of credit, regardless of the amount of time that is allotted to the oral argument by the court.

The applicant may also seek credit from the certification committee for activities not listed in this rule that involve labor and employment issues that are of sufficient complexity and otherwise demonstrate the applicant’s labor and employment law experience. Experience credit to be awarded for any of these additional activities will be the sole discretion of the certification committee.

Direct supervision of lawyers engaged in contested matters, as defined above, may be considered in determining compliance with this requirement.

The following activities are not accepted as proceedings satisfying the 25-day experience requirement: attendance at pre-trial conferences, attendance at scheduling and status conferences, defending depositions, preparation of pleadings, preparation of written discovery, preparation of motions, memoranda, briefs, and position statements, and participation in investigations by administrative agencies unless that participation involves in-person activities including an onsite visit, inspection, or audit, or other covered activities, including hearings or mediation.

(c) Education.

The applicant must complete 75 hours of continuing legal education in the area of labor and employment law since filing the last application for certification.

Passage of the examination given to initial certification applicants will satisfy the education requirement if the applicant has not completed 75 hours.

(d) Peer Review.

The applicant must submit the names and addresses of at least 3 lawyers and at least 1 judge, arbitrator, mediator, or administrator before whom the lawyer has appeared or practiced since the last application for certification to complete peer review forms.

The references may not include lawyers who currently practice in the applicant’s law firm.

(e) Waiver of Compliance.

For an applicant who has been continuously certified as a labor and employment lawyer for a period of 14 years or more, the labor and employment law certification committee may waive compliance with either the experience or substantial involvement criterion for recertification, for good cause shown and provided the applicant has complied with all other requirements for recertification.