Employment questions and answers that you need to know.
|Posted by Danialle on April 2, 2013 at 8:20 AM||comments (0)|
By: Linda Pisani, Esq. Partner/Attorney Riggins Pisani, PA
Long before I sought out to become a lawyer, I heard that the practice of law was an honorable profession. Like most things, there are always exceptions. As lawyers we strive in our practice to convince the judge, the lawmakers and other governing bodies to not allow an exception to swallow a rule. But somehow, we as lawyers have allowed the exception of ruthless lawyers to gulp up and choke down the rule that lawyers are honorable.
On September 12, 2011, the Supreme Court of Florida, recognizing the “incivility among members of the legal profession” added the following proviso to our Oath of Admission:
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications: This is a celebrated step in instructing the past two years of new lawyers that”fairness, integrity and civility” are expected in their practice of law. However, lawyers who currently stand in the place of mentors, counselors and teachers of these new lawyers have decades of successful legal practice where “fairness, integrity and civility” has little to no place in their practice. Many lawyers have first-hand experience of opposing counsel winning an argument without fairness, getting the upper hand in negotiations without integrity, or generally intimidating an opponent to advance a client’s position without any civility at all. The lawyers who have done this know who they are. And even if they do not realize they are part of the problem, the rest of us do.
But this is not a forum for showcasing unprofessional and unscrupulous lawyers and their bad deeds. Truly, these lawyers get enough attention. I, for one, deal with these types of lawyers weekly, if not daily, in my practice and find it exhausting and infuriating. Instead, the purpose of this forum is to focus on the new exception – the attorney who is fair – the attorney with integrity – the attorney who is civil.
A great example of such an attorney went viral about a year ago. While not a Florida attorney, much can be learned from Christy Susman from Louisville, Kentucky and her incredibly civil “cease and desist” letter on behalf of Jack Daniels. The act of sending a polite letter, while not monumental in the greater scheme of things, drives home the point that even a small thing can have a significant impact on the perception of a lawyer. The ABA article showcasing Ms. Susman’s letter is as follows: CEASE& DESIST LETTER
So there it is. . .I am on the lookout for those attorneys that we all should strive to be like and from whom we should learn how to be better lawyers. I am on the lookout for positive and inspirational attorneys who are responsible for kind letters, respectful tutelage, authentic collaboration, honesty and professionalism.
|Posted by Danialle on July 4, 2011 at 12:39 PM||comments (2)|
Job hunters beware of the new hurdles that unemployment regulations in Florida have for you. The first hurdle is the determination of “Misconduct.” Prior to the new law signed by Governor Rick Scott in June 2011, misconduct was a hard burden for employers to prove to disqualify employees from receiving unemployment benefits. Starting July 1, 2011, misconduct addressed primarily incidents that occurred in the workplace. With the 2011 law, misconduct now can include activities outside of the workplace. This gives employers a better chance to have former employees disqualified. Neverthesless, the employer still has the burden to prove the incidents that occurred outside of the workplace boundaries.
Another change will be the requirement of direct deposit or the Florida Unemployment Compensation Debit Card.This will be only for applications started after July 1, 2011. This means no more paper checks.
Beginning on August 1, 2011, those receiving Unemployment Compensation must contact five potential employers every week and document their job search progress online. Prior, claimants were required to maintain a record of their job contacts and were subject to being randomly called about their record. If claimants do not contact the five required
employers, they may not be eligible for their benefits that week. This is a new requirement due to the high discovered volume of benefit fraud. Receiving unemployment and not actively searching for work could determined as fraud.
Starting August 1, 2011, all applications for Unemployment Claim as well as weekly claims must now be filed online only through the Agency for Workforce Innovation’s webpage.
Currently, Unemployment Compensation extends for 26 weeks. By January 1, 2012, benefits will be adjusted to a range of 12 to 23 weeks, determined by the state’s unemployment rate.
|Posted by Danialle on May 12, 2011 at 6:09 PM||comments (0)|
The number one type of case being filed in federal court at this time is allegations of violations of unpaid overtime wages. Employees across the United States are checking employers for violating the wage and hour regulations under the Fair Labor Standards Act (FLSA). Most employers are not paying employees for what is considered to be “compensable work” pre- and post-shift work, working off-the-clock, etc.
Well employees can now start tracking all hours of work performed for their employers on their smartphones or iphones by using an app. There is now an app for everything, even one that helps you when lawsuits. The Department of Labor recently announced that is “to help employees independently track the hours they work and determine the wages they are owed.” This application will assist in the investigation and presentation of evidence of employers failing to maintain proper and accurate time records of their employees. This will also help employee/plaintiff attorneys across the country verify and support the unpaid wages violations. DOL is in the process of creating other “apps” that can assist with FLSA compliance for both employees and employers.
FLSA is a federal law that generally requires employers to pay overtime wages of time and a half (1½) to certain employees for work performed in excess of
forty (40) hours per week. This may include employees who work forced to work
“off the clock” to those who were told they are “exempt” but truly are not.Generally, if an employer knows or reasonably should know that covered employees
are working more than forty (40) hours per week, those employees should probably
be paid overtime.After the amendments to FLSA, several employers mistakenly believed that if
their employees were paid a “salary” instead of “by the hour” then the employee was
“exempt;” and therefore, the employees were not entitled to overtime wages. Salary
wages alone will not be enough to deny an employee from overtime compensation.
Consideration has to be given to the specific job duties performed by the employee
and the amount of wages before denial of overtime wages is appropriate.
If your employer has violated the FLSA, you may receive the following:
1. The unpaid overtime plus interest,
2. An additional amount equal to the unpaid overtime (liquidated damages),
3. Costs and your attorney’s fees paid by the employer.
Contact our office today for a consultation or if you have questions.
Danialle Riggins, Esq.
421 South Pine Ave.
Ocala, Fl 34471
May 12, 2011
|Posted by Danialle on May 6, 2011 at 4:21 PM||comments (0)|
The legal process works. At least this time. Circuit Court Judge Terry Lewis ruled this week that the State of Florida violated Florida’s Constitution by failing to raise the state minimum wage on January 1 to reflect last year’s increase in the cost of living. As a result, the rate will be increased from $7.25 to $7.31 an hour effective June 1st.
This ruling should means that the minimum wage should be considered and adjusted each year to be in compliance with Florida's Constituion. On November 2, 2004, Floridians voted to amend the Constitution to enact a state minimum wage. Under the voter-approved amendment, the minimum wage would increase every January to keep pace with any cost of living increase the past year.
Employers must pay their employees the hourly state minimum wage for all hours worked in Florida. The definitions of "employer", "employee", and "wage" for state purposes are the same as those established under the federal Fair Labor Standards Act (FLSA). Employers of "tipped employees" who meet eligibility requirements for the tip credit under the FLSA, may count tips actually received as wages under the Florida minimum wage. However, the employer must pay "tipped employees" a direct wage. The direct wage is calculated as equal to the minimum wage ($7.31) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.29 as of June 1, 2011.
Employees who are not paid the minimum wage may bring a civil action against the employer or any person violating Florida's minimum wage law.
If you have questions or believe your rights have been violated, contact the Riggins Law Firm. 352-433-2400.
-Danialle Riggins, Esq. May 6, 2011
|Posted by Danialle on May 3, 2011 at 4:29 PM||comments (0)|
Florida's Governor Rick Scott ran his winning campaign on the slogan, "Let's get to Work." Floridians better listen to those words and obey. Unemployment benefits, no matter what, will not be the same in Florida in 2011. House Finance and Tax committee passed a bill in February 2011 that makes significant changes to Florida's unemployment compensation system and reduces initial benefits from 26 weeks to 20. In addition, the bill will deny claimants benefits for employee "misconduct," force workers to accept job offers that pay at least 80 percent of their previous wage, or to accept any offer tha tpaid as much as their unemployment benefit, once they've been out of work formore than 12 weeks.
There is much uproar about the reduction of benfits to claimants. Nevertheless, other propose changes are coming. In May 2011, the Florida Senate is expected to vote on SB728. This legislation that would make substantial changes to the state's unemploymentsystem, but not reduce benefits by six weeks like the House version. It is unclear which version will be successful or what the final impact will be on claimant's benefits and employers' taxes. But a change is going to come.
|Posted by Danialle on August 26, 2010 at 6:13 PM||comments (0)|
In today’s economy, most people are familiar with unemployment benefits. Record highs are being reported monthly of new applicants seeking state unemployment checks orqualifying for federal extensions of benefits. For those who have not been educated about Florida’s unemployment compensation rules and rights, unemployment benefits are given to qualified claimants who have been involuntarily separated from their employment. In common language, employees who have beenterminated, released, or laid off not due to resignation or misconduct.
Following that general explanation of qualification forunemployment compensation, several employees have questions in regards to whenemployers asked them to resign to reduce staff and overhead cost. Can a forceresignation by equivalent to being laid off? Sometimes. Certain specific facts need to be present for a claimant tohave a chance at getting unemployment benefits.
The most convenient set of facts for an employee is thatthere is no severance agreement involved and the employer reports that they arenot going to challenge the awarding of benefits and actually do not. However, the majority of employers aware of old adage of “the one with the most documentation wins.” An employer who has documents that theemployee voluntarily resigned has the better chance for victory in most typesof litigation especially an unemployment appeal hearing.
If a release or severance agreement is a requirement of theseparation terms, the best scenario is if the release does not include anylanguage that expresses that the employee is “voluntarily resigning,” or anycombination of words similar to that phrase. An agreement absent of that type of terminology will help support aclaimant’s position that the claimant is entitled to Florida’s unemploymentcompensation. It implies that theseparation was solely the result of the employer’s decision and in theemployer’s best interest.
However, if the separation agreement does include voluntaryseparation, which mostly likely it will, there are other acts and behaviorsperformed by employer for a claimant to be successful in an unemploymentappeal. Such actions included, either verbally or a written expression that the claimant would still be eligible orentitled to benefits under the state of Florida’s rules and laws. Also, the employer, by and through itsagents, guarantees the employee will get the benefits even if the employee signsthe release. The final act must be that the employee believed and relied on the promises of the employer that the employee would qualify for the unemployment compensation even after entering the separation agreement. Florida courts cases have ruled that under these circumstances, a claimant acted in good faith based on the acts of the employer and is entitled to benefits.
If a claimant does not have those sets of facts and anemployee knowingly enter into a separation agreement, severance agreement, orrelease which expresses that the employee voluntarily resigned, the employee does not qualify for unemployment compensation in Florida. This scenario occurs frequently in workers’compensation settlements. The employer/carrier will have language in the agreement that the injured employeeis resigning as a term of the settlement. Sometimes they will add extra settlement monies to assure that this termis agreeable.
What both employees and employers need to be careful of is waivers of unemployment benefits. On occasions, employers will terminate an at-will employee and will attempt toavoid unemployment taxes being charged to its account. During the notice of termination, the employer will ask the newly fired employee to sign documents prepared by the employer. At times, the document will express that the employee has received all wages. Other documents will be just confirming that the employee knows why the employee is being terminated. Some documents actually contain language that states that the employee agrees not toapply for or is waiving rights to be eligible for unemployment benefits. In Florida, it is against the law to have any agreement “to waive, release, or commute” an employee’s rights to unemployment benefits. Any agreement that does is void. Any employer, officer, or agent of an employer that has an employee enter an agreement as such has committed a second degree misdemeanor.
Florida laws and courts have made it clear that the rules and laws should be construed to provide benefits to the claimant. However, there are ways that prevent employees from receiving monthly benefits after separation from employment. When it comes to unemployment benefits, waivers and releases are stumbling blocks for both employers and employees. While in most situations, the waiver and release is a complete disqualification of benefits. Employees have some leverage and defenses to gain benefits.
 FS 443.036(29)“Misconduct”includes, but is not limited to, the following, which may not be construed inpari materia with each other (a)Conduct demonstrating willful or wantondisregard of an employer’s interests and found to be a deliberate violation ordisregard of the standards of behavior which the employer has a right to expectof his or her employee; or (b) Carelessness or negligence to a degree orrecurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of theemployee’s duties and obligations to his or her employer.
 Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247 (Fla. 3d DCA 2003) dictates that, where the employer provides assurance to its employees considering taking a buyout that acceptance of the buyout will not affect their eligibility for unemployment benefits, a claimant who accepts the buyout will have a good claim for UC benefits because the employer does not have totally clean hands.
 Florida Statute §443.041.
|Posted by Danialle on July 26, 2010 at 6:12 PM||comments (1)|
In stressful economical times, finding or keeping a job can be quite difficult. Now once an employee has a job, new workplace problems and issues typically arise. Bullies in the workplace can now be listed as one of the top ten workplace problems. Over 37% of workers in America have been bullied in the workplace. That equals to about 57 million employees that work right beside you or are your neighbors, your friends, or your relatives. Something has to be done to stop this epidemic. However, there are no laws on the books in the 50 states that are strong enough to truly help and protect your co-workers or yourselves today.
While some employers are completely ignorant to the bullying in the break rooms across the United States, some management styles support and encourage yelling, hostile and profane conduct to serve the bottom line. What is workplace bullying exactly? It can be verbal attacks, pushing, shoving, teasing and harassment on the job. The same actions that occurred on the elementary playground are now occurring in corporate offices to small businesses across the United States.
Workplace violence recently has hit the media's attention again due to the frequent occurrences of gunmen entering into workplace lobbies, office facilities, and/or stores performing extreme measures of violence. There are criminal and other civil laws on the majority of the state's books that prohibit such actions. Yet, there are no legal actions to stop psychological abuse and turmoil in the workplace.
There is a problem and a need for it to be fixed. The majority of state legislatures and court systems have refused to take concrete actions when regulating civility. Employers simply believing that a manual or reference book stating “this company will not tolerate the disturbing or disruptive behavior of its employees" is not enough. No one is regulating or monitoring the employer. However, this problem is on the radar of the people, the employees.
This has sparked a grassroot movement to push the Healthy Workplace Bill. Seventeen states in 2003 have introduced the Healthy Workplace Bill. Florida is still considering legislation for the Healthy Workplace Bill. As of this date, employees in Florida have limited means to seek legal actions against hostility in the workplace. The Healthy Workplace Bill addresses the definition of an abusive work environment and proposes options of actions by the employer for terminating the bully and civil cause for the victims.
In regards to the Healthy Workplace Bill, New York State has taken action and is possibly on its way to having the first state law enacted under the Healthy Workplace Bill. On May 12, 2010 the New York State Senate put the Healthy Workplace Bill up to vote, which passed. There are more steps that are necessary before it will become law. To get more information on the Healthy Workplace Bill, visit- www.healthyworkplacebill.org .
Other states like North Carolina has passed laws that expand other existing state laws that already impact the workplace to prevent workplace bullying and violence. The recent North Carolina places news burdens on the employer. The new legislation amends the Occupational Safety and Operational Health and Safety Act to deal with two potential issues in the workplace violence. It requires employers to compare policies on issues of violence and place risk assessments with the matters stemming from both inside and outside work the workplace. There is an exchange of information from the employers from their assessment an the employees as to the external and internal threats. Once an employer has actual knowledge or should have known of the potential violence, it requires employers to take every precaution reasonable for services is to prevent and protect the worker at the risk of physical injury.
While there is a law on the North Carolina books, it will still be unclear what an employer should or can do to protect its employees from an abusive workplace. If you are being bullied, please read previous article Bullies in the Workplace- Flight, Fight or Sue? at http://www.freewebs.com/danialle/workplacebullies.htm.
By Danialle Riggins, Esq.
Riggins Law Firm, PA
|Posted by Danialle on July 26, 2010 at 5:35 PM||comments (0)|
On July 23, 2010, Florida's Governor Charlie Crist exercised his authorityto sign an executive order allowing about 250,000 jobless Floridians to extendtheir unemployment benefits through December 4, 2010. This action is inconnection with the highly debated unemployment federal bill passed last weekin Washington, D.C.
Florida's senate had previously voted to end state extension deadlinesin June 2010. Therefore, thousands of jobless person in Florida were nolonger receiving checks while trying to survive and look for gainfulemployment.
This is a great opportunity for those who have been recently droppedfrom benefits due to the expiration of the Tier II or Tier III benefits. Those individuals should be receiving letters or taking the initiative tocontact the Agency of Workforce Innovation to inquire of the next steps toreceive the additional benefits until December 2010.
While the benefits are going to be costly from a tax-payers point-of-view, it is for the greater good that those without get another helpinghand during this economic time. The question on the minds of both federaland state governments is what will happen when December rolls around andFlorida, like other states, has thousands being dropped from receivingbenefits.
How will thousands feed their families during the holidays? Howwill they be able to pay for heat? How many more extensions can thegovernment afford to give? I assume the premise of this extension is based onhopes that the economy and seasonal jobs flurry and maybe some become permanentjobs.
Of course, this is where the issue of “overemployment” exist and unemployment numbers are skewed. Hundreds of the individuals that received seasonal work will makeunemployment numbers improve. Yet,several of them who take jobs may not be able to keep them long enough to seekadditional benefits once the temporary jobs no longer exist.
The system is broken. However, themost people receiving unemployment benefits can accept is that temporary helpis here now. They need to plan for thefuture without government assistance and learn and hone their crafts, skills,and talents to enter a new and different type of working environment.
Riggins Law Firm, PA
|Posted by Danialle on June 10, 2010 at 12:59 PM||comments (0)|
We have all heard stories about people not being hired for a job due to being "overqualified." In today's economy, being overqualified is the norm. With the unemployment rate nationwide standing over 9%, individuals with multiple degrees and numerous years of experience, are accepting entry-level jobs in new industries just for an income. This problem, on top of the other known problems, is changing how job markets look. The new problem is underemployment. Underemployment includes two things: individuals who are unemployed and looking for work; those who are settling for part-time work but wanted full-time work; and finally, those who are not actually looking for work at all.
We have ways of measuring underemployment. The majority of numbers referenced in regards to underemployment come from the US Labor Department known as U-6 statistic. Another way, economists and human resource specialists have been determining underemployment is through surveys such as the Gallup poll. Gallup estimated the unemployment publishing to be 19.9% of the workforce.
Underemployment will continue to be a problem due to two reasons. The first reason is due to numerous individuals accepting temporary work opportunities, which removes them from unemployment statistics. However, the temporary jobs end and most of those individuals will not qualify to be considered as unemployed under most states including Florida's regulations. Hence, the unemployment rate appears to have declined. The second reason is that underemployed individuals who come from high qualified backgrounds that accept entry-level employment become jaded quickly. After weeks of performing basic skills and job tasks, such employees become frustrated that they are not being offered the hours and income that they hoped to obtain.
Also some underemployment issues are related to the location. Depending on the state, an individual can experience underemployment In January, Michigan California and Oregon had unemployment rates of above 20%. South Carolina Nevada Rhode Island had rates above 19%. Arizona, Tennessee and Florida have rates above 18%.
Given the condition of the construction, manufacturing, and sales industries not much will change in upcoming months. In today's economy, the problem of underemployment will continue. Even with federal jobs being offered to most states, and incentives for employers to hire, employers have tightened their belts and are primarily offering positions in a temporary or low-wage status. Other education is a forecast to be a growth of job areas. What the economics of United States will need is a new or renovated industry took to create jobs that were lost in the last two years.
|Posted by Danialle on November 3, 2009 at 7:37 AM||comments (0)|
The Riggins Law is proud to announce that Congressman Alan Grayson (Fla. 8th District) will be in Ocala, Florida on November 13, 2009 at Pi on Broadway - 110 SW Broadway Ocala, Fl 34471 from 5pm to 7pm. Come out and meet the most controversial congressman.
There will be hors d'oeuvres and cash bar.