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Employment Law: Employer Myths, Mistakes & Misunderstandings

EMPLOYMENT LAW: EMPLOYER MYTHS, MISTAKES & MISUNDERSTANDINGS (NO. 1):  [This article is one of a series of articles intended to identify and discuss some of the mistakes employers make, and misunderstandings thatemployers have with respect to employment laws. It is not intended and should not be construed as legal advice.] by Brad Adams[1] “I don’t need to worry about having a policy prohibiting sexual harassment in my workplace because all of our employees are very close.  We are like a family.”  Some of the worst sexual harassment cases I have defended involved the so-called “close-knit” workplaces where employees generally got along well and routinely socialized with each other.  In fact, it is precisely these types of workplaces that, in many cases, provide fertile ground for sexual harassment claims.  For example, employees that are “close-knit” may be more inclined to socialize away from the workplace.  Further, employees (even management) may be more likely to engage in inappropriate conduct “outside of work.”  They also may wrongly assume that misconduct that occurs away from the employer’s offices or facility cannot subject the employer to legal claims. Moreover, such off-site socializing often involves the consumption of alcohol, which may lower inhibitions and contribute to employees engaging in inappropriate conduct. Even within the workplace itself, employees who have relatively close relationships with each other may be more apt to engage in behavior that they would not dare to engage in around a client or even a stranger.  For example, if Jim considers his co-workers to be “friends,” he might think it is okay to send a group email to them with an offensive cartoon, joke or even pornography (believing that either his co-workers will appreciate it or, even if they are offended by it, will not take any action that might get “their friend” into trouble). In this example, if Jim gets positive feedback from some co-workers and others, who are offended, simply ignore it (because they do not want to get Jim in trouble), Jim might well continue to send similar (perhaps even more offensive) emails on a regular basis. Other co-workers might even join in. In this way, the employer could face a situation where offensive conduct is quite pervasive in its workplace. Management, however, has no idea about this misconduct because it is occurring electronically, and the co-workers who are offended do not report it either because they do not want to get Jim in trouble or they do not, in the absence of a sexual harassment policy, know what to do about the situation. The takeaway here obviously should not be that collegiality or even close relationships in the workplace should be discouraged. To the contrary, a workplace where co-workers get along well and socialize from time to time can, among other benefits, promote good morale and job satisfaction and increase productivity. Instead, the takeaway is that no employer should think that just because the workplace is close-knit, it need not concern itself with taking appropriate measures to prevent and address sexual and other harassment in its workplace. While effective policies and training on harassment certainly provide no guarantee that such misconduct will not occur, such measures certainly diminish both the likelihood that harassment will occur and, if it does, that it will go unabated.  In the example above, had Jim been provided with a sexual harassment policy and received training on it, he may well have refrained from sending the inappropriate emails.  Or even if he had sent the emails despite his knowledge of the policy against it, one or more of his co-workers may well have reported the conduct.  Further, even assuming for the sake of argument that nothing would have changed in that example, the fact that the employer had a sexual harassment policy and provided related training on the policy would place the employer in a much better position to defend against a legal claim alleging sexual harassment.  In sum, policies against sexual and other forms of harassment and related training are extremely important for employers, even those who have a close-knit group of employees.  Broadly speaking, policies prohibiting harassment should be easy to understand, should be regularly communicated to all employees and should include the following: A clear explanation of the types of prohibited conduct (including examples): A statement that the policy applies to employees at all levels as well as applicants, clients/customers, vendors, and others; An explanation that the policy applies not only to sexual harassment, but other forms of unlawful harassment which also should be properly identified. A statement that employees are encouraged to report any conduct believed to be prohibited by the policy A description of the complaint procedure, which should be easy to access and should include appropriate alternative avenues for complaining. For example, the policy should not limit the complaining employee to first reporting the issue to his or her immediate supervisor, who could be the harasser An explanation that the employer will undertake a prompt, impartial and appropriate investigation in response to any complaint A statement that the investigation will be kept confidential to the extent possible A statement that a complaining employee will not be subjected to retaliation for making the complaint An assurance that the employer will take prompt and appropriate corrective action when harassment is found to have occurred. *    Additionally, employers should have employees sign and date an acknowledgment form, acknowledging their receipt, review, and understanding of the policy. [1] Brad Adams is an attorney in the Employment Law Group at Emmanuel, Sheppard & Condon.  Mr. Adams has practiced in the area of employment law for the past 18 years and is admitted to practice law in Florida as well as Alabama and Georgia.  Mr. Adams was previously a shareholder with Littler Mendelson, P.C., a national labor and employment law firm.      

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Hurricane Sally: Tips for Filing Your Insurance Claim

We have weathered storms along the gulf coast since 1913, and are here to help you and your family recover from Hurricane Sally. If you have questions regarding what you should do to collect information and submit an insurance claim, our attorneys are ready to assist you with a free consultation. As business and property owners, we know well the importance of making thorough and aggressive claims to an insurance company.  Now more than ever, Emmanuel Sheppard & Condon is right by your side. HERE ARE SOME TIPS TO CONSIDER TO HELP AS YOU ARE FILING AN INSURANCE CLAIM: Safety Make sure that your property is secure and safe to prevent further damage or accidents. Document You should document your losses and damages. Take a lot of pictures and videos before and during the inspection of the building, damaged personal property, cleanable items, structural damage, and the standing flood levels of water in the building. Receipts You will want to keep your receipts for purchases made related to your property damage, or accommodation receipts for if you are forced to relocate due to the living conditions of your property. Without receipts, you will not be able to collect any Additional Living Expenses (ALE) during the time the house is uninhabitable. Mitigate Your Loss This is required by your policy that you must take efforts to prevent further avoidable damages after a loss. This helps preserve your evidence and stop any future damage from occurring. Things to do to help prevent further damage includes putting up tarps, removing wet drywall and carpeting to prevent mold, and boarding up areas of the property. Do not begin cleanup, repairs, or throw anything away until you notify your insurance company. Contact Insurance Company & Obtain a Copy of Policy Notify your insurer that you need to file a claim. If you do not have a copy of your insurance policy, ask for one. You will also want to ask how long it will take until you get a visit from an adjuster — the person who will inspect the damage and help you arrive at a settlement. Remember, check with your insurer before discarding damaged items and materials. The more information you have about your damaged possessions — a description of the item, approximate date of purchase and what it would cost to replace or repair — the faster your claim generally can be settled. Understand Hurricane Deductibles Most homeowners’ insurance comes with a hurricane deductible. It typically ranges from about 1% to 5%, depending on the specifics of your insurance contract. Ask your agent about your specific policy. Diary Keep a claim diary and log all conversations, notes, details, etc. of your damages for your insurance claim. Estimates and Reports Request copies of all estimates and reports from the insurance company adjuster. Beware of Contractors Only hire licensed contractors to do the work. Beware of signing a contract with an “assignment of benefits” (also referred to as AOB) clause which gives all the rights and proceeds of your insurance claim to the contractor. You are not forced to use the contractors your insurance company recommends either. It’s your property so you should control who does the repair and quality of work. If you need to contact a contractor, water mitigation, etc. let them know who your carrier is and let your agent know who you’re working with. DO NOT SIGN an “Assignment of Benefits” assigning rights of your policy to the contractor. Do What’s Best As a policyholder, you know your home/business and what is the best for a recovery. Don’t let the insurance company tell you what to do and treat you unfairly. Call us Most insurance companies do the right thing, but when they do not, we are here to help you. Our attorneys are available for a free consultation to help answer your questions relating to your insurance claims for your residential or commercial property. Call us today at 850.433.6581.

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Getting Your Business Affairs in Order

GETTING YOUR BUSINESS AFFAIRS IN ORDER If you are a business owner, we advise you to get properly prepared and executed documents in place that: 1. Authorize who can run the business in your absence and give them what they need from you to run the business. 2. If you have a co-owner, agree in advance of a problem on what should happen:     a. If one of you does not work as hard as they should,    b. If one of you wants out of the business,    c. If one of you becomes disabled,    d. If one of you dies, (Do you want to co-own the business with another deceased owners’ heirs?)    e. If you die, what should your heirs receive from the business. 3. Consider if an insurance product is right for your business, such as key man life, business interruption, contingent business interruption, event cancellation and general liability insurance. Get verification by a review of the insurance policy if it will cover the short falls you foresee need to be covered. For example, a business interruption policy may exclude coverage for a loss from a viral pandemic but may cover a loss of business caused by a fire. For more information, contact Sally Fox at sfox@esclaw.com or call 850.433-6581

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CARES Act: Tax-Related Provisions

Here’s a summary from our friends at Thomson Reuters that we would like to share with you regarding the tax-related provisions in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Congress’s gigantic economic stimulus package that the President signed into law on March 27, 2020. Recovery rebates for individuals To help individuals stay afloat during this time of economic uncertainty, the government will send up to $1,200 payments to eligible taxpayers and $2,400 for married couples filing joints returns. An additional $500 additional payment will be sent to taxpayers for each qualifying child dependent under age 17 (using the qualification rules under the Child Tax Credit). Rebates are gradually phased out, at a rate of 5% of the individual’s adjusted gross income over $75,000 (singles or marrieds filing separately), $122,500 (head of household), and $150,000 (joint). There is no income floor or ‘‘phase-in’’—all recipients who are under the phaseout threshold will receive the same amounts. Tax filers must have provided, on the relevant tax returns or other documents (see below), Social Security Numbers (SSNs) for each family member for whom a rebate is claimed. Adoption taxpayer identification numbers will be accepted for adopted children. SSNs are not required for spouses of active military members. The rebates are not available to nonresident aliens, to estates and trusts, or to individuals who themselves could be claimed as dependents. The rebates will be paid out in the form of checks or direct deposits. Most individuals won’t have to take any action to receive a rebate. IRS will compute the rebate based on a taxpayer’s tax year 2019 return (or tax year 2018, if no 2019 return has yet been filed). If no 2018 return has been filed, IRS will use information for 2019 provided in Form SSA-1099, Social Security Benefit Statement, or Form RRB-1099, Social Security Equivalent Benefit Statement. Rebates are payable whether or not tax is owed. Thus, individuals who had little or no income, such as those who filed returns simply to claim the refundable earned income credit or child tax credit, qualify for a rebate. Waiver of 10% early distribution penalty The additional 10% tax on early distributions from IRAs and defined contribution plans (such as 401(k) plans) is waived for distributions made between January 1 and December 31, 2020 by a person who (or whose family) is infected with the Coronavirus or who is economically harmed by the Coronavirus (a qualified individual). Penalty-free distributions are limited to $100,000, and may, subject to guidelines, be re-contributed to the plan or IRA. Income arising from the distributions is spread out over three years unless the employee elects to turn down the spread out. Employers may amend defined contribution plans to provide for these distributions. Additionally, defined contribution plans are permitted additional flexibility in the amount and repayment terms of loans to employees who are qualified individuals. Waiver of required distribution rules Required minimum distributions that otherwise would have to be made in 2020 from defined contribution plans (such as 401(k) plans) and IRAs are waived. This includes distributions that would have been required by April 1, 2020, due to the account owner’s having turned age 70 1/2 in 2019. Charitable deduction liberalizations The CARES Act makes four significant liberalizations to the rules governing charitable deductions: Individuals will be able to claim a $300 above-the-line deduction for cash contributions made, generally, to public charities in 2020. This rule effectively allows a limited charitable deduction to taxpayers claiming the standard deduction. The limitation on charitable deductions for individuals that is generally 60% of modified adjusted gross income (the contribution base) doesn’t apply to cash contributions made, generally, to public charities in 2020 (qualifying contributions). Instead, an individual’s qualifying contributions, reduced by other contributions, can be as much as 100% of the contribution base. No connection between the contributions and COVID-19 activities is required. Similarly, the limitation on charitable deductions for corporations that is generally 10% of (modified) taxable income doesn’t apply to qualifying contributions made in 2020. Instead, a corporation’s qualifying contributions, reduced by other contributions, can be as much as 25% of (modified) taxable income. No connection between the contributions and COVID-19 activities is required. For contributions of food inventory made in 2020, the deduction limitation increases from 15% to 25% of taxable income for C corporations and, for other taxpayers, from 15% to 25% of the net aggregate income from all businesses from which the contributions were made. Exclusion for employer payments of student loans. An employee currently may exclude $5,250 from income for benefits from an employer-sponsored educational assistance program. The CARES Act expands the definition of expenses qualifying for the exclusion to include employer payments of student loan debt made before January 1, 2021. Break for remote care services provided by high deductible health plans For plan years beginning before 2021, the CARES Act allows high deductible health plans to pay for expenses for tele-health and other remote services without regard to the deductible amount for the plan. Break for nonprescription medical products For amounts paid after December 31, 2019, the CARES Act allows amounts paid from Health Savings Accounts and Archer Medical Savings Accounts to be treated as paid for medical care even if they aren’t paid under a prescription. And, amounts paid for menstrual care products are treated as amounts paid for medical care. For reimbursements after December 31, 2019, the same rules apply to Flexible Spending Arrangements and Health Reimbursement Arrangements. Business only provisions Employee retention credit for employers Eligible employers can qualify for a refundable credit against, generally, the employer’s 6.2% portion of the Social Security (OASDI) payroll tax (or against the Railroad Retirement tax) for 50% of certain wages (below) paid to employees during the COVID-19 crisis. The credit is available to employers carrying on business during 2020, including non-profits (but not government entities), whose operations for a calendar quarter have been fully or partially suspended as a result of a government order limiting commerce, travel or group meetings. The credit is also available to...

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How to Collect Money Owed to Your Business in the Age of COVID -19

Collection of money owing to you may be challenging in the face of COVID-19. Those that owe you money may face significant economic challenges or fear spending what money they have to pay bills, not knowing if they will continue to have money they need. You may feel uncomfortable and even stigmatized for trying to collect money you are rightfully owed. The court system is bogged down, but there are alternatives to court. Consider negotiating a repayment plan that can include: restructuring what is owed to be paid over time, deferring what is owed to a specific date(s), adding collateral,  and If your documents do not give you already the right to collect interest and attorneys’ fees, add: interest accrual, and the right to collect attorneys’ fees. All agreements should be in writing signed by you and the owing party.The agreement should specify what the repayment terms are and include the right for you to get attorneys’ fees should the owing party fail to pay. For questions or additional information, please contact at Sally Fox, sfox@esclaw.com 850.433.6581.

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Florida’s Unique Homestead Laws – A Double-Edged Sword

Florida’s unique homestead laws provide both advantages and disadvantages to you as a homeowner. An understanding of these homestead laws will help you, as a homeowner, make the best decisions for yourself and your family. Board Certified Real Estate Attorney, Scot Copeland, is here to help you get started. This blog post focuses on these key areas: Protection from the claims of creditors, restrictions on transfers of homestead property, and property tax exemption and limitations.  PART 1 – PROTECTION FROM THE CLAIMS OF CREDITORS Every year, many people from across the country move to Florida to take advantage of its broad homestead protection laws.  Here, our home is our castle, and these laws are arguably the most protective in the United States.   Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors.  This means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.  To qualify for homestead protection, the debtor must be a permanent resident of Florida and the homestead property must be owned by the debtor and remain his/her primary residence.  With the exception in certain bankruptcy cases, the homestead protection is effective immediately upon establishing a permanent and primary residence in Florida.     Article X, Sec. 4(a)(1) limits the protected homestead to one-half (1/2) acre if it is located within a municipality (town or city) or 160 acres if it is outside a municipality.  This geographical area of protection is one of the broadest in the United States.  The value of the property protected is unlimited. Consequently, a debtor may purchase and improve a parcel of property within these acreage parameters up to any amount, with the resulting improvements and land being protected from creditors.   Florida’s homestead protection is such a potent asset protection tool because of its unlimited monetary protection.  Florida residents may invest millions of dollars in lavish estate homes and farms that are fully protected from creditor’s claims.    Article X, Sec. 4(b) extends these exemptions to the surviving spouse and related heirs of a deceased homeowner.  Thus, upon a homeowner’s death, the surviving spouse and related heirs may receive the homestead free and clear of any creditor’s claim.  To legally establish the protected homestead, a benefitted party (spouse or related heir) should file a petition to determine homestead in an estate administration proceeding.       However, there are exceptions to Florida’s homestead protection law.  Article X, Section 4 does not protect homestead property against tax liens, mortgages, assessment liens, and mechanic’s liens related to that specific property.  For example, a mortgage of homestead property or a lien resulting from the failure to pay a contractor for materials for your home is not protected from creditor’s claims.  Such non-exempt liens will also result in a title issue that may prevent the sale or refinancing of your home.   Additionally, certain types of co-ownership (such as tenancy in common and joint tenancy with rights of survivorship) of a homestead may jeopardize the homestead exemption when one of the joint owners does not reside on the property.  In such a case, a judgment against one co-owner not residing on the property may result in that co-owner’s interest being levied against, which would force a judicial sale of the homestead property (in which case the protected co-owner would be entitled to their portion of the sale proceeds). PART 2 – RESTRICTIONS ON TRANSFERS OF HOMESTEAD PROPERTY Article X, Sec. 4(c) of the Florida Constitution restricts an owner’s ability to mortgage or transfer (via deed, will, or trust) the homestead, with the purpose being to promote family unity and provide a residence for the owner’s family.  In summary, these restrictions are as follows: A married owner may not mortgage, sell or gift the homestead to anyone other than a spouse or to the owner and the spouse, unless the spouse also signs the deed or mortgage.  This is true even if the spouse has no legal ownership in the property, as the law deems the spouse to have an equitable interest in the homestead.If an owner is survived by a minor child, the owner cannot devise (transfer at death through a will or trust) the homestead.If there is a surviving spouse and a minor child, the owner cannot devise the homestead.  In this instance, the homestead passes automatically to the spouse and the owner’s descendants.  A surviving spouse has the option to take a life estate in the homestead or a ½ interest in the homestead.  Such joint ownership among family members often creates problems regarding the use and marketability of the homestead. If there is a surviving spouse but no minor child, the homestead can only be devised outright to the spouse. These restrictions on devises only apply when (1) the homestead is owned by the owner at his or her death and (2) such ownership interest does not automatically pass to another.  Therefore, a homeowner can avoid these restrictions (and have more flexibility with estate planning and asset succession) by titling the homestead with other(s) as tenants by the entireties (ownership among spouses) or joint tenants with rights of survivorship.  These forms of ownership result in an automatic transfer to the surviving joint owner upon the first to die.  Otherwise, these restrictions may only be limited or avoided by a spousal waiver in either a pre-nuptial or post-nuptial agreement or spousal disclaimer upon death. PART 3 – PROPERTY TAX EXEMPTION AND LIMITATION When an owner establishes the home as his or her permanent residence, the owner may apply with the county property appraiser for a homestead exemption which may reduce the assessed value for property taxes up to $50,000.00.  Additional tax exemptions exist for certain service members, disabled persons, seniors and veterans.  Florida also caps the annual assessment increase at 3% (“Save Our Homes” limitation), thus the assessed value for tax purposes cannot exceed that amount each year regardless of the increase in value of the home.  Additionally,...

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Evictions on Hold: Landlord Issues Arising from Coronavirus Pandemic

On March 24, the Florida Supreme Court halted the issuance of writs of possession through the close of business on Friday, April 17, 2020. This action means a landlord is unable complete the eviction of a tenant unless a writ had been issued prior to the date of the order. A lawsuit seeking eviction can still be filed and, in certain cases, ruled on by the judge during this time, but the final step necessary for removal of the tenant (issuance of the writ) will be delayed.  Delays in the eviction process are just one area where landlords are encountering unique challenges related to the novel coronavirus/COVID-19 pandemic. There are questions about proper application of force majeure clauses, potential liability for virus contamination on the leased premises and many more.  If you have questions about your legal rights as a landlord, we are here to help. Please contact Lori Ellen Ward at lew@esclaw.com or 850.460.8913.

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Florida’s Homestead Exemption – A Double-Edged Sword

Part 1 – Protection from the Claims of Creditors Every year, many people from across the country move to Florida to take advantage of its broad homestead protection laws.  Here, our home is our castle, and these laws are arguably the most protective in the United States.   Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors.  This means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.  To qualify for homestead protection, the debtor must be a permanent resident of Florida and the homestead property must be owned by the debtor and remain his/her primary residence.  With the exception in certain bankruptcy cases, the homestead protection is effective immediately upon establishing a permanent and primary residence in Florida.     Article X, Sec. 4(a)(1) limits the protected homestead to one-half (1/2) acre if it is located within a municipality (town or city) or 160 acres if it is outside a municipality.  This geographical area of protection is one of the broadest in the United States.  The value of the property protected is unlimited. Consequently, a debtor may purchase and improve a parcel of property within these acreage parameters up to any amount, with the resulting improvements and land being protected from creditors.   Florida’s homestead protection is such a potent asset protection tool because of its unlimited monetary protection.  Florida residents may invest millions of dollars in lavish estate homes and farms and still protect the full value of these luxurious residences. Article X, Sec. 4(b) extends these exemptions to the surviving spouse and related heirs of a deceased homeowner.  Thus, upon a homeowner’s death, the surviving spouse and related heirs may receive the homestead free and clear of any creditor’s claim.  To legally establish the protected homestead, a benefitted party (spouse or related heir) should file a petition to determine homestead in an estate administration proceeding.       However, there are exceptions to Florida’s homestead protection law.  Article X, Section 4(a) does not protect homestead property against tax liens, mortgages, assessment liens, and mechanic’s liens related to that specific property.  For example, a mortgage of homestead property or a lien resulting from the failure to pay a contractor for materials for your home are not protected from creditor’s claims.  Such non-exempt liens will also result in a title issue that may prevent the sale or refinancing of your home.   Additionally, certain types of co-ownership (such as tenancy in common and joint tenancy with rights of survivorship) of a homestead may jeopardize the homestead exemption when one of the joint owners does not reside on the property.  In such a case, a judgment against one co-owner not residing on the property may result in that co-owner’s interest being levied against, which would force a judicial sale of the homestead property (in which case the other protected co-owner would be entitled to their portion of the sale proceeds). In summary, Florida homestead laws are significant and warrant consideration by homeowners and prospective homeowners.  Should you have questions or wish to discuss the homestead issues you are facing, do not hesitate to contact Scot B. Copeland.    Part 2 – Restrictions on transfers of homestead property to follow.

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Experienced Legal Assistance

If you or a loved one has been charged with a crime, whether it is a minor traffic violation or a serious criminal offense, it is necessary to obtain experienced legal assistance to ensure that your rights are protected.  At Emmanuel Sheppard and Condon, we offer a free initial consultation on your criminal matter to evaluate your case and will zealously advocate on your behalf to ensure that you obtain the best resolution to your legal matter.  We regularly provide representation for individuals charged with the offenses of DUI, battery, domestic violence, drug possession, theft, driving while license suspended, traffic citations and probation violations. Contact Galen Novotny at: gnovotny@esclaw.com  or 850.433.6581

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