| 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.

Continue Reading

| 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.

Continue Reading

| 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

Continue Reading

| Read Time: < 1 minute | Blog

Florida Passes Minimum Wage Increase

In November of 2020, Floridians voted to pass Amendment 2, which amends Florida’s Constitution to raise the minimum wage rate by $.09, from $8.56 to $8.65. The initial increase took effect on January 1, 2021. The amendment will gradually increase Florida’s minimum wage rate to $15.00 according to the following schedule.

Continue Reading

| Read Time: 4 minutes | Blog

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.      

Continue Reading

| Read Time: 3 minutes | Blog

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.

Continue Reading

| Read Time: < 1 minute | Blog

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

Continue Reading

| Read Time: 9 minutes | Blog

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...

Continue Reading

| Read Time: < 1 minute | Blog

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.

Continue Reading