Henderson, Franklin, Starnes & Holt, P.A.

The First Amendment is commonly understood as protecting the right to free speech. But the First Amendment does not impact the ability of private citizens and organizations to punish or limit speech. This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of – private employers have the right to manage their employees as they see fit.

The situation grows more complicated when the government is the employer. Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech. At the same time, however, public sector employees have a protected right to free speech under the First Amendment.

The law attempts to balance these two interests noted above by differentiating between private and official speech. The First Amendment only protects government employees when they are speaking as a private citizen about matters of public concern. If the government employee’s speech is instead part of their official job duties, they can be disciplined or fired for what they say.

Private v. Official Speech Test

Continue Reading Airing of the Grievances: 11th Circuit Declines to Extend First Amendment Protection to Employee’s Work Complaint

Dan Schwartz of the Connecticut Employment Law blog posted yesterday about an interesting medical marijuana case in Connecticut. For the first time, a Connecticut court ruled that an employer could not refuse to hire an applicant simply because she was a medical marijuana user, despite the employer’s drug-free workplace program. This applicant, who used medical marijuana for PTSD, had her offer revoked after she tested positive for marijuana on the pre-employment drug screen. She then sued for discrimination. In ruling for the applicant, the court focused on the anti-discrimination provision in Connecticut’s medical marijuana law:

[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

Conn. Gen. Stat. § 21a-408p(b)(3) (emphasis added).

Does this decision have any impact on Florida employers?

Continue Reading Connecticut Court Finds Employer Discriminated for Refusing to Hire Medical Marijuana User: What Does This Mean for Florida Employers?

The Department of Labor just issued updated FMLA forms, good through August 31, 2021. No more using “expired” forms!  For anyone who was expecting “updated” to mean changed or improved…well, we are sorry to disappoint you – the only thing that was updated was the date! The forms are otherwise identical.
Continue Reading Department of Labor Releases Updated FMLA Forms

Property Right

Can employers arbitrarily terminate a person’s employment in Florida? Florida is an “at will” state, meaning employers generally can terminate an employee for any lawful reason, just as employees may quit for any reason. Certain public employees, however, enjoy a property interest/right to their employment and may be terminated only for cause.

Both the United States and the Florida Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. In the employment context, this guarantee of due process functions to protect certain public employees from being deprived of a protected property interest in their employment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Indeed, in Roth, the United States Supreme Court held that, where public employees have a property right or property interest in their continued employment, the employer may not terminate the employee without certain due process protections.Continue Reading Property Rights in Continued Employment for Public Employees: The Basics

Congratulations! You were awarded a judgment against the defendant in your lawsuit, all appeals are exhausted, and the judgment is now final. In theory, once the judgment is final, the defendant pays the judgment and the matter is resolved. This, however, rarely happens and additional steps are needed in order to obtain the monies owed.

Bank Garnishment in Florida

One way to collect the judgment is through garnishing the debtor’s bank account by the issuance and service of a “Writ of Garnishment.” The Writ allows a bank to freeze the debtor’s assets in its control and creates a lien upon the debt or property garnished at the time of service of the Writ. Below are the steps needed to take under Florida Statutes:

  • Provide the location and name of the debtor’s bank;
  • File a Motion for Garnishment and Writ of Garnishment Order with the Clerk of Court; and,
  • Once the Order is issued, serve the Writ of Garnishment on the debtor’s bank (the “garnishee”) by a process server.

The garnishee must then file an answer within twenty (20) calendar days of being served, stating what sum and what tangible or intangible personal property of the debtor it has or had in its possession or control at the time of filing the answer. Failure to file an answer may entitle the creditor to judgment against the garnishee.

Notice to Judgment Debtor

Continue Reading How Can I Collect a Judgment?

As the year-end approaches, you may want to consider steps to reduce your federal income tax bill, especially as Congress weighs tax reform. The current proposals would reduce income tax rates for most businesses and individuals, and increase the available business deductions. Whether or not the proposed tax reforms become law, the following tax tips should help you save on federal income taxes.

Tips for Business Owners: Expensing and Depreciation

Continue Reading Tax Planning and Proposed Tax Reform

If you are like me, you have been focused on all things weather-related the last day or two. In Southwest Florida, we are firmly stuck in the “cone of uncertainty” in the path of Hurricane Irma, a storm the weather-folks keep calling “potentially catastrophic.”  There were even rumors of a Jim Cantore sighting in Fort Myers yesterday…and anyone who has lived in Florida for a hurricane season or two knows what that means!

We know many of you are working on storm preparations, which, with a storm of this magnitude, naturally means you are faced with potential workplace closures. If the number of questions we received yesterday is any indication, there is a lot of uncertainty about when and how to pay employees if your business closes before and/or after the storm.

Impact of Workplace Closure on Payroll

Continue Reading Cone of Uncertainty: Wage/Hour Concerns in the Path of Hurricane Irma

We can’t tell you how many times we’ve been asked in the last few weeks:  is there any chance the new overtime rule will go away or at least be postponed to sometime after December 1?  Well, apparently the answer is…

YES!  Yes.  Yes.  The answer — much to our surprise — is YES, the