Blog Archives | Emmanuel Sheppard & Condon

Jun 7, 2021 | By ESC Law | Read Time: 3 minutes | Blog

Florida Asset Purchase Agreement Overview

Buying a business in Florida can be exciting and stressful. There are a lot of details that must be carefully considered before finalizing the sale. The majority of these fine points should be thoughtfully negotiated and put into writing in the form of a Florida asset purchase agreement. As with any big purchase, it is extremely important to pay close attention to all aspects of the transaction. Asset Purchase Agreement, Florida An asset purchase agreement is a type of contract that pertains specifically to the sale of a business or particular business assets. This complex business agreement lays out all the terms and conditions regarding the sale and is legally binding once signed by both parties. What Does a Florida Asset Purchase Agreement Include? In the best interests of all involved parties, the asset purchase agreement should be as detailed as reasonably possible to avoid confusion or misinterpretation. There are a number of essential elements of the asset purchase agreement which must be included. Parties to the Agreement First and foremost, it is important to state who is selling and who is buying. This may seem too simple to include as part of this list, but it can be critical if corporate entities with independent subdivisions are involved. It’s important to name the right entity in the agreement to avoid any ambiguity. Purchase Price and Payment For most business transactions, this is the defining element of the contract. The seller and buyer must agree on the purchase price. Debts and liabilities may also need to be taken into consideration during price negotiations. The parties must agree on how and when payment will occur. Typically, the buyer delivers 5-10% of the purchase agreement price immediately after signing the agreement. This is standard, but not required. Assets Included in the Sale What is and isn’t a part of the transaction should be included in the agreement. Being as descriptive and detailed as possible will help reduce any potential misunderstandings. This could include property, buildings, equipment, services, and more. These details should also match all existing business records, or the asset purchase agreement in Florida could be jeopardized. Representations and Warranties It is important to understand the reasons that each party is willing to enter into the contract. A “representation” is a statement of fact that is made to convince another party to enter into the contract. A “warranty” is a promise of indemnity if the representation proves to be false. One representation may be that the product produced by the business is fit for a particular use or meets a certain standard. If that proves to be false, it can lead to termination of the asset purchase agreement in Florida and could also be grounds for litigation. Additional Terms There are several things to take into consideration, depending on the type of business. If you are a purchaser, you may want to consider adding non-compete and non-solicitation components to the Florida asset purchase agreement. This prevents the seller from essentially starting up a similar business and taking their existing clients with them. If the purchaser is intending to keep the seller involved in the capacity of an employee, those details should also be included. This could be temporary through the transition phase or involve a permanent role. Timeline and Finalization The exact timeline for each party to complete their specific tasks should be laid out. Some of these things could be improvements or repairs that the seller must make before closing, delivery of payment by the buyer, or approval of the sale by any third parties or government agencies. All other details such as minor adjustments to price or taxation and liabilities should happen before finalization. Should You Hire A Florida Asset Purchase Agreement Attorney? For most people, purchasing or selling a business is no small feat. There is risk on both sides of the transaction. Hiring an experienced attorney to guide you through the process and conduct a careful review of the transaction can avoid detrimental errors that you may not have noticed without their legal expertise. The experience team at Emmanuel Sheppard and Condon understands the complexities of Florida business transactions. Our team can help you avoid pitfalls while ensuring you are receiving everything you expect and are entitled to. We work with large corporations and small family-owned businesses. Our diverse team of experienced legal professionals can help simplify your business and provide you with valuable peace of mind. Contact us today for your consultation.

Jun 7, 2021 | By ESC Law | Read Time: 3 minutes | Blog

How to Dissolve an LLC in Florida

When a limited liability company (LLC) reaches the end of its life, properly closing it is important. There are several steps you may take, including many required by law. Accordingly, you should understand how to dissolve an LLC in Florida before doing so. Dissolving a Florida LLC has three main stages: making sure dissolution is appropriate under the circumstances; taking care of the LLC’s remaining obligations; and filing the articles of dissolution. Once the Florida Division of Corporations (DOC) processes your articles of dissolution, your LLC ceases to exist as a legal entity, except for the purpose of winding up its affairs. 1. How to Dissolve an LLC in Florida: Triggering the Dissolution A majority of LLCs function under an operating agreement, although it is not technically required. This document serves as an agreement between the owners or members of a Florida LLC regarding how they will run the business. If present, the operating agreement will govern how and when dissolution should occur. For example, an operating agreement may say that dissolution occurs if one of the founding members dies. Regardless of what it says specifically, make sure you review your LLC’s operating agreement before proceeding with dissolving an LLC in Florida. For LLCs without an operating agreement, the Florida Revised Limited Liability Company Act provides some default options. Generally, this Act permits dissolving an LLC in Florida: Upon unanimous consent of the LLC’s members; If 90 days pass during which the LLC has no remaining member; A court enters a decree of judicial dissolution; or The Florida DOC files a statement of administrative dissolution, usually based on the company’s failure to provide annual reports or fees. Once the appropriate condition triggers dissolution, the winding up process for the LLC begins. 2. Settling the LLC’s Debts and Other Obligations When you dissolve an LLC in Florida, it’s likely that the LLC still has some unpaid debts. Florida law requires LLCs to distribute their assets in a particular order while winding up. As a result, it is very important that you follow this order properly to avoid potential legal liability. First, the LLC must use its assets to discharge its obligations to creditors, including any remaining taxes owed. A creditor can be anyone outside the company to whom a debt is owed or any member who made personal loans to the company. A crucial part of how to dissolve an LLC in Florida is properly handling these claims. There are specific notice requirements for known and unknown claimants you must follow. We recommend speaking with a Florida business law attorney who can advise you of your options and how to comply with these requirements. 3. Distributing Remaining Assets to Members If there are still assets left over after paying all creditors, distributing those assets to the LLC’s members is the next step in LLC dissolution. Florida law requires LLCs to make these distributions in the following order: First, to interest holders with unreturned contributions; and Second, to current and dissociated members in proportion to their contributions. Once the LLCs members have received their distributions, it is almost time to file the Florida LLC articles of dissolution. 4. Wrap up Any Out-of-State Business Registrations (If Necessary) Many businesses choose to operate in more than one state. To do so, however, a business must register in any foreign state in which it wants to conduct business. If this is the case for your LLC, make sure to properly close out these foreign registrations during the Florida LLC dissolution process. Each state handles foreign business entities differently, so make sure to check each relevant state’s laws for specifics. 5. File the Articles of Dissolution The last step is to file the articles of dissolution with the Florida DOC. Florida offers online or paper filing with a fee of $25. There may be additional fees for certified documents. Additionally, the Florida DOC strongly recommends hiring legal counsel prior to submitting any documents. The Division’s website provides more information about how to close an LLC in Florida. Need More Information on Florida LLC Dissolution? Emmanuel Sheppard & Condon is a full-service law firm well equipped to handle your business law needs. For over 100 years, we have helped clients start and end their businesses, as well as assisted in a variety of other business law matters. If you need to dissolve your Florida LLC, we can help. To get started, contact us today or give us a call at 850-422-6581 for a free consultation.

Apr 30, 2021 | By ESC Law | Read Time: 4 minutes | Blog

How to Dissolve a Corporation in Florida

For a variety of reasons, there may come a time when it’s time to close a corporation through dissolution. If you are at this stage with your business, you’ve probably wondered how to dissolve a corporation in Florida. Dissolving a Florida corporation involves two primary steps: dissolving the corporation in the eyes of the law, and then winding up its affairs. Depending on the status of your business at the time of dissolution, there are some other specific steps you may need to take. 1. File the Articles of Dissolution To dissolve a Florida corporation, the very first step is to obtain approval from either the corporation’s directors or its shareholders. In most cases, shareholders must approve the dissolution before you can take an official action toward Florida corporation dissolution. However, if the business has not issued any shares at the time of dissolution, then the board of directors or a majority of incorporators may approve the dissolution instead. Once the appropriate group approves the dissolution, you can file your articles of dissolution (along with the required cover letter) with the Florida Division of Corporations (DOC). These articles must include: The name of the corporation; The corporation’s date of formation; and The date the corporation’s shareholders or directors approved the dissolution. The DOC accepts Articles of Dissolution online or by mail. Both filing methods require a $35 filing fee, however the DOC usually processes online applications slightly faster. The DOC also strongly encourages business owners to have a business law attorney review the documents before filing. Can I Revoke My Dissolution of Florida Corporation? Florida does permit corporations to revoke their dissolution within 120 days of the effective date of the dissolution. Note that other companies may use your business’s name one year after the effective date of the dissolution. If you wish to reinstate your corporation after this period, you will have to make sure your desired name is still available. 2. “Wind Up” the Corporation “Winding up” is a legal term that refers to a corporation’s obligation to handle its outstanding financial affairs before finally dissolving. At this stage, your corporation exists only for this purpose. As a result, it can no longer conduct other business. Common winding up tasks include: Collecting and organizing the corporation’s assets; Distributing any remaining corporate property between the shareholders and disposing of assets that will not be distributed; and Discharging the corporation’s remaining liabilities. Properly dissolving and winding up your corporation is important. Although the DOC will automatically dissolve your Florida business for failing to file the required annual reports, you will still be on the hook for any applicable late fees. 3. File a Notice of the Dissolution Before distributing any assets to shareholders, the corporation must settle any outstanding business taxes and debts owed to creditors. Accordingly, when dissolving a corporation in Florida, it is important to properly notify any potential creditors. This process involves providing a notice to the corporation’s creditors of the business’s dissolution. Ideally, this notice should be provided directly to each potential claimant. However, in situations where all claimants are unknown, you may give notice by filing a separate notice with the DOC or publishing that notice in a newspaper. 4. File for Dissolution in Other States If Applicable When a company wishes to conduct business in a state other than its state of incorporation, typically that company must “qualify” itself to do business in that foreign state. Similarly, when dissolving Florida corporations, you must officially terminate the business in any foreign states in which you registered it. 5. Wrap Up Any Other Outstanding Business Matters Winding up is just one stage of closing a corporation in Florida. As a practical matter, there are several things business owners should make note of even after the business is wound up. Many businesses, especially if they are large in size, will have property that they need to dispose of properly. For example, the business should handle the transfer of office equipment and real estate as part of the closing process. Outstanding business matters may also include new or pending legal proceedings against the corporate entity, and the authority of the corporation’s registered agent may also come up. Florida law also requires all corporations to maintain a registered agent to receive and accept service of process on the business’s behalf. Keep in mind that dissolution will not automatically change the registered agent’s authority; business owners must make sure to take the proper steps to terminate the agency relationship if necessary. Most (if not all) of these matters will be addressed during the winding up phase. Nevertheless, it is important to keep them in mind to ensure that the business does not leave behind any loose ends. Need More Information on How to Dissolve a Corporation in Florida? Emmanuel Sheppard & Condon offers a full suite of legal services to businesses in Pensacola and the surrounding areas. If your business has reached the end of its lifecycle, our attorneys can provide you with more information on how to close a corporation in Florida. To get started, contact us today online or by phone at 850-433-6581 for a free consultation.

Mar 22, 2021 | By ESC Law | Read Time: 4 minutes | Blog

Florida Drug Testing Laws & Overview

Employers know that safe and productive business practices require a drug-free workforce. Taking steps to maintain a safe workforce also keeps you in compliance with Florida law. Federal and Florida law require drug testing for some employees. Florida drug test laws also give employees certain privacy rights. Here, we give an overview of what you need to know about legally drug testing your employees. Federal Drug Testing Laws Federal law, under the Federal Drug Free Workplace Program, requires or recommends drug testing in these safety-sensitive positions: Employees who carry firearms, Transportation employees who carry passengers, Flight crew members, Air traffic controllers, Railroad operating crews, Law enforcement personnel, Drug rehabilitation employees, and People requiring higher security clearance. Federal employers can consult the Federal Drug Free Workplace Program or an experienced employment lawyer for guidance on other positions to include in random Florida drug testing programs. Florida Drug Testing Laws Florida participates in the drug free workplace program. This program allows Florida employers to access reduced workers’ compensation premiums. To qualify for these discounted rates, an employer must follow state regulations and file a form with the state that certifies their participation. Florida employers have no legal duty to test employees for drugs. However, Florida law says that employers may conduct drug tests for these reasons: Job applicant testing, Fitness for duty testing, Upon return from a drug rehabilitation program, Random testing, or Reasonable suspicion drug testing. Florida law defines reasonable suspicion as “based on a belief that an employee is using or has used drugs in violation of the employer’s policy.” Reasonable suspicion drug testing can be required by a supervisor at least two levels higher than the employee. Reasonable Suspicion Florida Drug Testing An employer can base reasonable suspicion drug testing on these factors: Direct observation of drug use; Observation that an employee seems to be under the influence of drugs; A corroborated report of drug use from a reliable source; An employee causing or contributing to a workplace accident; Evidence that an employee has tampered with a drug test at work; and Evidence that an employee has used, sold, or possessed drugs at work. If an employer conducts a test based on reasonable suspicion, they must provide a written account of the circumstances that caused them to suspect the employee of drug use. The employer must keep this information confidential and give a copy of this documentation to the employee upon request. Random Drug Testing Employers may also conduct random drug testing for all employees. For random drug testing, an employer must: Use an independent third party to select a computer-generated sample of employees; Test a selected group that represents no more than 10% of total employees; and Conduct random testing no more than once every three months. If a random drug test is positive, the employer must inform the employee in writing within five working days. The employer should also inform the employee of the consequences of the positive test as well as employee options. Medical Marijuana Drug Testing Note that medical marijuana falls into a gray area of drug law. Federal law still states that marijuana is illegal to use or possess. However, Florida is among the 33 states that have legalized medical marijuana. Therefore, states can decide the consequences for medical marijuana usage at most jobs. New Florida drug testing laws like the medical marijuana exception require companies to stay updated on current legislation. While Florida drug testing laws may allow medical marijuana, federal laws sometimes rule. Employees subject to federal regulations, such as CDL drivers, must follow federal guidelines that prohibit marijuana use. Establishing a Drug Testing Program When you establish company drug testing, Florida law requires protocols to protect employees. Before you establish a drug testing program at your company, take these steps: Give employees 60 days notice that you are starting a drug testing program; Give employees a written statement describing the company’s drug-use policy, testing requirements, and drug-use consequences; Give employees written notification of confidential prescription drug notification procedures and the names of prescription drugs that may alter a drug test; Give employees written notification of confidentiality policies, consequences of refusing a drug test, and the procedure for challenging a positive drug test; and Provide employees with names and contact information for alcohol and drug rehabilitation programs. The employer should also post the company’s drug testing policy at a conspicuous place at the workplace. Once the employer has established a drug testing program, the employer does not need to give an employee 60 days notice before a drug test. Need Legal Assistance with Florida Drug Testing Laws? Drug testing programs involve a complicated mix of federal and state law. If you’re confused about how to handle a particular situation, we can help. Emmanuel Sheppard & Condon keeps up with new Florida drug testing laws so that our clients can stay in compliance. Our attorneys help Florida employers design and implement drug testing programs that comply with federal and state law. Contact Emmanuel Sheppard & Condon for help developing a drug testing policy or for guidance on Florida drug testing laws. Our knowledgeable attorneys are available to develop policies and procedures, train managers, and litigate civil and administrative law claims. Contact us today for assistance with drug testing legal concerns.

Mar 22, 2021 | By ESC Law | Read Time: 5 minutes | Blog

Florida Collaborative Divorce Overview

Divorce is an inherently stressful process. However, there are ways to lessen that stress and promote more amicable relationships. One legal method that prioritizes the mental and emotional health of all parties is called collaborative divorce. At Emmanuel Sheppard & Condon, we increasingly use collaborative divorce methods with our clients. We began using this method when we realized that clients often seek negotiation and communication methods that lessen animosity. What Is a Collaborative Divorce? Collaborative law is a new way to resolve disputes by removing the dispute from the litigation process. Although a marriage may end by divorce, the parties must maintain an ongoing relationship as they continue to co-parent their children. A long and nasty divorce battle often will make this impossible and affect all the parties for years to come. In a collaborative case, the couple will work with a team of professionals that support them through the emotional, legal, and financial aspects of their case. With the help of the team, the clients will avoid the uncertain outcomes of court litigation and create a divorce settlement that best meets the needs of both parties. To learn about this better way to divorce, contact Galen M. Novotny with Emmanuel Sheppard & Condon. Should I Choose a Florida Collaborative Divorce? Whether to choose a collaborative divorce depends on your circumstances and goals. If you desire to lessen stress and work together to negotiate a fair settlement agreement, a collaborative divorce can be an effective tool. Parents negotiating the care and support of children find this method particularly useful, as it prioritizes the well-being of their children. However, if you and your spouse have such animosity towards each other that negotiations would be strained, a collaborative divorce may not work. We do not recommend this method to all our clients. Instead, we evaluate the circumstances of your divorce and advise you on the separation method most likely to reach your goals. How Does a Florida Collaborative Divorce Work? In some ways, collaborative divorce in Florida is similar to traditional divorce. However, it differs in the methods your attorney uses to reach a divorce settlement. Here are the major steps required in a collaborative divorce. Retain an Attorney Each party retains an attorney if they choose. Attorneys provide legal guidance and protect each person’s interest during a collaborative divorce. Voluntarily Choose a Collaborative Divorce Collaborative divorce in Florida is voluntary, so each party must ask their attorney to use collaborative methods. You can use collaborative methods at any part in divorce proceedings. For an efficient, amicable divorce, many couples choose to start collaborative methods immediately. Other couples realize midway through divorce proceedings that they need a less stressful way to separate, so they switch to collaborative methods then. Write a Participation Agreement Each party and their attorneys will meet to write a collaborative divorce participation agreement. This participation agreement will outline: Issues the parties want to resolve, Decisions the parties need to make, Documents the parties need to gather, and Rules for collaborative negotiations. This participation agreement will serve as a promise that the parties will not use the court system to litigate their divorce. Frequently Asked Questions As you begin the collaborative divorce process, you may have a number of questions. Can I Relocate with My Child(ren)? When either parent who is entitled to timesharing with the minor child intends to move more than fifty (50) miles away, Florida law requires that parent to follow the very specific procedures set forth in Florida Statute 61.13001. Permission to relocate with the minor child can be obtained either through the agreement of the other party, or by filing a Petition with the family court. If necessary, the Court will consider the statutory factors to determine if the requested relocation is in the “best interests of the child.” A relocation will often limit time sharing of the non-moving parent. Ultimately, the Court will have to consider the opportunities the relocation may present versus the benefit of the child remaining with both parents actively involved in the child’s life which is a very high burden to overcome. If you are considering relocation or if your former spouse is requesting to relocate, please contact Galen M. Novotny with Emmanuel Sheppard & Condon to learn your rights and obligations. What Are My Parental Rights to a Child I Had Outside of Marriage? Pursuant to Florida law, the unwed mother of the child is designated the natural guardian of the child. If the father wishes to be a part of the child’s life, he must establish his rights through the Court. The signing of the birth certificate as the “father” does not automatically give that person parental rights to the child. The father must petition the Court to establish parental responsibility and timesharing and the appropriate child support. While the unwed parents of the child may get along initially and can agree on these issues, it is important to establish your rights through the Court with an enforceable court order that will be beneficial for all parties in the long run. If you have any questions as to what your rights and responsibilities are as a parent of a child born outside of marriage, please contact Galen M. Novotny with Emmanuel Sheppard & Condon for a consultation. Can I Get “Custody” of My Children? Traditionally, in Florida family law there was a presumption that one parent was going to have “custody” of the children when there is a divorce or paternity case. However, the term “custody” has been removed from Florida family law and there is no longer a presumption for or against either parent. Now, the Court must determine what is “in the best interests of the children” in establishing a parenting plan that will address parental responsibility and timesharing. Parental responsibility is often shared and is the method in which parents make important decisions for their children. Timesharing is a schedule of how the children will spend time with each parent. If you have...

Feb 27, 2021 | By ESC Law | Read Time: 3 minutes | Blog

Florida Harassment Laws in the Workplace

If you employ workers in Florida, you need to know about Florida’s workplace harassment laws. As an employer, you need to understand what type of workplace conduct amounts to unlawful harassment. You also need to know how to protect your company from workplace harassment claims. Finally, you should know when to contact an experienced employment attorney to investigate or resolve harassment complaints. This knowledge will help you limit inappropriate harassment at work while reducing potential liability for Florida harassment claims. Unlawful Harassment in Florida Workplace harassment is a form of employment discrimination. In Florida, most employers must comply with both federal and state employment discrimination laws. To avoid discrimination under federal law, you must comply with numerous laws including: Title VII which, prohibits discrimination based on race, color, sex, religion, and national origin; Age Discrimination in Employment Act, which protects persons age 40 or older; and Americans with Disabilities Act (ADA) which protects individuals with a mental or physical disability. On the state level, you must avoid workplace discrimination under the Florida Civil Rights Act (FCRA). The FCRA prohibits Florida employers from discriminating on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Prohibited Harassment Conduct At Work Two types of workplace harassment can lead to liability: quid pro quo harassment and hostile work environment harassment. Quid Pro Quo Harassment in Florida Quid pro quo means “this for that” in Latin. This type of harassment occurs when a manager or supervisor requests sexual favors from an employee in exchange for a raise, promotion, or other benefit. In other words, the harasser makes employment decisions based on another employee’s agreement to or denial of sexual favors. Hostile Work Environment Harassment in Florida Hostile work environment harassment involves unwanted conduct that is severe or recurring and makes it difficult or uncomfortable for another employee to work. Typically a hostile work environment involves repeated incidents. However, a single incident of inappropriate conduct may give rise to a hostile work environment if it is very severe. For example, a single episode of a sexual assault or a mock lynching at the workplace could create an unlawful hostile work environment. Less severe incidents that can create a hostile work environment if they occur frequently may include things like: Offensive jokes, Slurs and name calling, Physical threats, Mockery and ridicule, or Insults and intimidation. Importantly, general rudeness or petty annoyances do not constitute unlawful workplace harassment in Florida. The offensive conduct must be related to an employee’s sex, race, age, color, or other protected characteristic to be unlawful. How to Protect Against Workplace Harassment As a Florida employer, you need to be proactive and take affirmative steps to prevent harassment at work. Have a Clear Policy First, you should create a harassment policy that informs employees of inappropriate workplace conduct and its consequences. Your policy should state that you will not tolerate harassment on any grounds. You also should instruct employees on how to report unwelcome harassing conduct. Provide Appropriate Training Second, you should train your supervisors, managers, and employees on workplace harassment. Inform them of the types of prohibited workplace conduct. Teach them how to watch for conduct that could lead to a hostile work environment. Communicate your harassment policy, and allow employees to ask questions. Be Responsive Third, when an employee reports harassment, address the complaint promptly. You need to conduct an unbiased investigation to determine whether unlawful harassment occurred. If it happened, you need to take steps to resolve it and make sure it does not happen again. You may have to fire the harasser or take other steps designed to stop similar conduct in the future. Do Not Retaliate Finally, do not retaliate against employees who report potentially harassing conduct. You need to allow employees to bring their harassment concerns to you without fear of reprisal or termination. This is key because you can be found liable for unlawful retaliation even when not liable for an underlying harassment claim. Hire Experienced Employment Lawyers to Combat Workplace Harassment You need the advice of reputable employment attorneys to ensure that you take all appropriate steps to prevent and address harassment at your workplace. At Emmanuel Sheppard & Condon, our employment law attorneys have spent their careers representing employers on workplace harassment, retaliation, and legal compliance. We can help you create harassment policies, offer training on workplace harassment, and investigate harassment complaints. And if you need to defend against a harassment charge, we will represent and defend your business at the appropriate administrative agency or court. Contact us today to discuss your Florida workplace harassment strategy.

Feb 26, 2021 | By ESC Law | Read Time: 4 minutes | Blog

Florida Non Compete Statute Overview

Are you worried that your key employees will go work for a competitor, taking all your important clients with them? Can you require your employee to sign a non-compete agreement in Florida? Are non competes enforceable in Florida? And what does Florida noncompete law say about an employee going to work for a competitor in spite of a non-compete agreement? The employment attorneys at Emmanuel Sheppard & Condon can answer all your questions and draft enforceable non-compete agreements in Florida. What Is a Non-Compete Agreement in Florida? In general, a non-compete agreement is a legal contract between two parties. Essentially, one party agrees not to engage in competing business activities against the other party. Most often, employers use non-compete agreements with their high-level employees. Companies also can use non-competes when a business is sold, thus preventing the seller from immediately beginning a new competitive business. Are Do Not Compete Clauses Legal in Florida? If you want to use non-compete agreements, you need to follow the Florida statutes on non compete agreements. So are non competes legal in Florida? Yes, if they are appropriately limited. Under the Florida non-compete statute, you must have a legitimate business interest to justify needing a non-compete. In addition, the non-compete agreement must be reasonable in time, place, and scope of restricted business activities. Legitimate Business Interest to Support a Non-Compete According to the Florida noncompete statute, you need to show a legitimate business interest that the non-compete agreement will protect, such as: Substantial relationships with existing or prospective customers, patients, or clients; Trade secrets or other valuable business information; Specialized or unique training; or Customer goodwill. If you lack a legitimate business interest, your non-compete agreements in Florida will be void. Reasonable Time, Place, and Scope for Non-Compete You must draft a Florida non compete agreement with reasonable restrictions on the employee. In other words, you may not prohibit your employee from ever working in your industry or in your region. First, you must set the duration of the restrictions against competing to a reasonable time frame. Generally, you can restrict competitive activities while the employee works for you and for a reasonable time afterward. For example, you may write the non-compete agreement to prohibit competition for the duration of employment and one year after separation. Depending on the employee’s job and your business, you may determine that a longer time is appropriate. If your restriction lasts too long, however, the non-compete may not be enforceable. Second, you must restrict competition within a reasonable geographic area. For example, for a sales person with a three-state territory, you generally should limit the non-compete to those three states. However, when protecting trade secrets or other more expansive interests, you may find that a broader geographic restriction is reasonable. Again, it will depend on the nature of each employee’s position and the business interests you seek to protect. Finally, you should draft the non-compete agreement so as to restrict only the line of business in which that employee worked. For example, if your software salesperson sold only gaming software, you should restrict the employee from competing in the gaming software business. When drafting time, place, and scope non-compete restrictions, do not be overly broad. Keep the restrictions reasonable as to each employee’s actual work and what is needed to protect your business. Enforcing a Non-Compete Agreement in Florida If you learn that an employee or former employee may be violating their non-compete agreement, you need to take action to enforce the agreement. Depending on the circumstances, this may include various approaches or steps. Inform the Employee First, you need to remind the employee of their obligations under their non-compete agreement. During exit interviews, be sure to reinforce the post-employment restrictions that are included in the non-compete. If an employee appears to be ignoring their non-compete, you can send a cease-and-desist letter. In the letter, you should instruct the employee to stop all competitive activities to prevent further enforcement action. Contact the New Employer You can also contact the employee’s new employer. Many times, a new employer is unaware that an employee had signed a non-compete agreement. After you make it known to the new employer, many will stop using that employee for competing activities. Pursue an Enforcement Action If the employee continues to ignore the non-compete agreement, you may need to enforce it in arbitration or court. Depending on what you specified in the agreement, you may be entitled to an injunction to stop the employee from engaging in a competitive business. You also may recover monetary damages caused by the breach of the non-compete in Florida. Be aware that the arbitrator or judge will look to the Florida statute on non compete agreements to determine if the agreement is enforceable. Contact Emmanual Sheppard & Condon for Florida Non Compete Agreements If not drafted correctly, your non-compete agreement can be void and unenforceable. So if your business is worth protecting, it is worth hiring the experienced employment lawyers at Emmanual Sheppard & Condon to draft your non-compete agreements. We can analyze your business interests and draft agreements that will be upheld in court. Contact us today so that together, we can use the Florida non compete statute to your advantage.

Feb 25, 2021 | By ESC Law | Read Time: 3 minutes | Blog

Florida Termination Laws Overview

Understanding Florida Termination Laws Florida is an at-will employment state. In the simplest terms, at-will employment gives the employer the right to terminate the employment relationship at any time and for any lawful reason. Nevertheless, at-will employers do not have completely unfettered discretion to terminate their workers’ employment, even in Florida. Firing someone for a prohibited reason could lead to substantial financial losses. Consequently, you should discuss Florida laws on firing employees with knowledgeable and experienced Florida employment lawyers if you have any questions about firing an employee. At Emmanuel Sheppard & Condon, our Florida employment lawyers will ensure that you comply with Florida employment law if you need to terminate someone’s employment. Florida Laws on Firing Employees Every person working for another in Florida is presumptively an at-will employee. At-will employment can be beneficial for both the employer and employee because either side may terminate their employment arrangement. Accordingly, employees can move from the company as they deem appropriate. Similarly, employers can let at-will employees go for almost any reason. An employee is not at-will if a contractual arrangement governs their employment. The contract terms should determine every aspect of the employer-employee relationship, including how the employer may terminate the contract before the expiration date. Contracts could be on an individual basis or collectively bargained for by a union. Employees regard Florida employment law concerning termination to be harsh. Employers have no obligation to give the employee notice of termination. Also, Florida law does not require an employer to provide the employee with a reason for termination. Additionally, Florida laws on firing employees strictly limit what can constitute an employment contract. Several states recognize implied contracts created by employee handbooks; however, Florida does not. Florida law recognizes only written employment contracts that expressly set forth the terms of employment. Florida termination laws distinguish the state from nearly the entire country in another meaningful way. In the United States, only a handful of states do not recognize the public policy exception to the at-will employment rule. Under the widely held public policy exception, an employer cannot fire an employee for reasons the general public would find distasteful or unjust. That exception does not apply in Florida. Restrictions on Employers Under Florida Termination Laws No employer has the right to discharge an employee for an unlawful reason. Under federal and state employment laws, no employer can terminate an employee based on a discriminatory motive. Therefore, employees cannot be fired based on their: Race, Gender, Sexual preference, Decision to marry, Decision to have a family, Age, Color, Country of origin, Religious beliefs or affiliations, Health, or Disabilities. Florida and federal law prohibit employers from discharging employees for asserting their rights to associate or express themselves. Moreover, Florida employment laws on firing employees prevent employers from firing people who comply with their legal obligations to answer a subpoena or attend jury service. Florida’s employment laws also protect domestic violence victims in some situations. Anti-Retaliation and Whistleblowing Laws Federal law and Florida law expressly prohibit employers from discriminating against employees who report unlawful or harmful conduct. Whistleblower protections are significant. Any adverse employment action taken against a whistleblower or someone who avails themselves of lawful benefits will have severe repercussions for the employer. Employers must understand that employees who exercise their rights or participate in investigations relating to the company are not immune from termination. An employer can still fire that person for a valid and lawful reason. But navigating such a termination can be complicated. The employer should seek help from experienced and savvy Florida employment lawyers who can guide them through the process without violating anyone’s rights. What Should an Employer Do When Letting An Employee Go? Even though Florida employment laws regarding termination of employment significantly protect employers, businesses have obligations to their discharged employees. Employers must give 60 days’ notice of intent to lay off 50 or more employees at any one site or 33% of your workforce. Failure to comply with these requirements could result in significant financial penalties. Employers must pay their employees after termination. However, you do not have to pay a discharged employee until the next pay period. Employers may incur financial burdens after lawfully discharging their employees. Laid-off employees can claim unemployment benefits. Additionally, terminated employees—except those fired for gross misconduct—must have access to health insurance known as COBRA. The employer must allow access to COBRA for up to 18 months after discharging the employee. Seek Competent Advice Regarding Florida Employment Law for Employee Termination Deciding to fire an employee may be a difficult decision for you. Do not make a difficult situation worse by not consulting lawyers with a proven track record of helping employers avoid disputes with their employees. Since 1913, the law firm of Emmanuel Sheppard & Condon has continued to shepherd Florida businesses through tumultuous times. Our team of Florida employment lawyers has significant experience guiding employers through difficult decisions. Call us today at 850-433-6581 or contact us online to arrange a meeting with Florida employment lawyers who have your best interests at heart.

Feb 25, 2021 | By ESC Law | Read Time: 4 minutes | Blog

Florida Employment Contract Overview: Information for Florida Employers

When hiring a new employee, one of the first decisions every employer should make is whether to use a written employment contract in Florida to set forth the terms and conditions of employment. Employment agreements are not necessary in every situation. But if you use them, it’s a good idea to consult an attorney to draft or at least review the contract. An attorney can draft a Florida employment contract in a deliberate manner that protects the organization’s interests and does not lead to potential, and often unintended, liability. When to Use an Employment Agreement in Florida Generally, the employment relationship in Florida is considered at will. At will means that both the employer and the employee may end the employment at any time, with or without notice or cause. Many Florida employers choose to maintain the at-will employment relationship to permit maximum flexibility in and control over their employment decisions. The at-will employment relationship may be altered, however, if an employer makes oral or written promises that limit the circumstances, conditions, or process by which employees may be terminated. Does that mean that an employer shouldn’t use a Florida employment agreement with an at-will employee? No! But employers must use caution to ensure that nothing in the employment agreement nullifies the at-will relationship. In some circumstances, employers and employees may want a more defined relationship—perhaps to lock in an employee’s services for a specified period of time or to prohibit termination unless there is “cause.” Employment agreements that provide these types of guarantees alter the at-will nature of the employment relationship and should be drafted carefully. Florida employers may choose to use employment agreements with certain employees, such as executives or workers hired for a specific project, and not use them with the rest of their workforce. However, an organization should be careful if it is not offering the same terms of employment to all similarly situated employees. In that case, the employer should analyze whether the different treatment of employees could be seen as discriminatory, such as offering all male executives employment agreements with “for cause” termination provisions while female executives are treated as at-will employees subject to termination at any time. Do’s and Don’ts for Drafting Employment Contracts in Florida Employers who want an employment contract with their Florida employees should keep the following do’s and don’ts in mind. Do include the following provisions: General job responsibilities, including “any other responsibilities as assigned by the employer”; Assignment of inventions and ownership of work product; Confidentiality and trade secret protection; Non-compete and non-solicitation (for appropriate positions), using reasonable geographic and time restrictions; Mandatory arbitration of employment disputes; Use and return of company property; Restrictions on moonlighting or other concurrent employment; and Choice of law and forum selection in Florida. If you want the employee to be at will: Do define the at-will employment relationship; Don’t guarantee employment for any specific period of time or for an indefinite period if the employee performs satisfactorily; Don’t outline a progressive discipline process that the employer must follow prior to termination; Don’t require the employee to provide two weeks’ notice when resigning; and Don’t include language requiring “for cause” termination. When drafting employment agreements for Florida employees who are not at-will, employers should spell out the employment relationship (e.g., whether it is for a specified term, what circumstances will justify termination of the employment relationship etc.). If you agree that termination can be “for cause” only, the agreement should carefully define what constitutes “cause.” Optional Provisions in a Florida Employment Agreement Florida employers should be careful when addressing certain terms and conditions of employment in an agreement. Doing so may limit the company’s ability to change those terms without executing a new or amended employment agreement. For example, an employment contract in Florida may address salary/wages, bonus eligibility, full-time or part-time status, exempt versus non-exempt status, benefits, severance pay upon separation of employment, and standards of conduct. But because many of those provisions could change each time an employee gets a raise, promotion, demotion, change in status, change in benefits, etc., employers may want to leave those items out of the agreement. Why Are Employment Agreements So Tricky? A Florida employment agreement is a legally binding document. If either party disregards or violates one or more terms of the agreement, the other party may pursue legal action for breach of contract. An unintended promise or misunderstood contractual provision could result in the employer being liable for money damages to an employee, or group of employees, upon failure to abide by the contract. Therefore, employers should consult with an experienced employment attorney to review their workforce situation and draft enforceable employment contracts in Florida that protect the employer’s interests. Contact Emmanuel Sheppard & Condon for Assistance with an Employment Contract in Florida At Emmanuel Sheppard & Condon, our experienced Florida employment attorneys work with businesses to draft employment contracts in Florida that meet the needs of HR while protecting the business against costly and time-consuming employment disputes. As a full-service law firm, we handle each contract with the care and dedication it deserves, consistent with each company’s business culture. Don’t take chances with online employment contract templates. Contact us today to get started on your employment agreement needs.

Feb 18, 2021 | By ESC Law | Read Time: < 1 minute | Blog

Helping You With Hurricane Claims

As our community works to recover from Hurricane Sally, we want to let you know we are here to help if you navigate your hurricane claims. Many of us in the Pensacola, Pensacola Beach, Perdido, Gulf Breeze, Pace, Milton, and surrounding areas, suffered significant damage to their homes and businesses as a result of Hurricane Sally. Trying to rebuild from this type of disaster is incredibly difficult in even the best of circumstances. However, when you add wrongful insurance denials or undervaluing of claims to the mix, it makes a bad situation ten times worse. This is not something you have to go through on your own. First party property, or Hurricane Claims, is a very specialized area of law and there are many, many post-loss contractual obligations that can negatively affect your claim. Despite this being the first major wind event to hit our area since Hurricane Ivan, it has become very apparent that insurance companies do not have our best interests in mind. We fought for you after Hurricane Ivan. We will fight for you now. You trusted us then and we are asking that you trust us now. We will get through this together. If you just need some advice or guidance, please call our office. We are offering 100% free consultations. Should you decide to move forward with us representing you, we only get paid if we win. Our firm is a part of this community and has been so for over 100 years. Let us help you rebuild. Contact our Attorneys today to assist with your Hurricane Sally Claims H. Wesley Reeder T. Shane Rowe Benjamin T. Shell Adam J. White