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Yeah, that’s me on a Big Wheel at age 6 or 7. Check out that air! Good thing there was grass for soft landing….

Recently, my law partner and I tried a temporary injunction in a complicated business dispute. When I cross-examined the opposing expert, he answered “Yes” to most of my leading questions, as I expected he would. When the opposing expert strayed from deposition testimony, I impeached him to get him back on the straight and narrow.

Near the end, I elicited a pretty good answer. I could have stopped right there. It would have been a good cross-examination. But I thought I could ask one more question on this topic, and really nail him. There was some risk in asking the next question, as he could have tried to put a spin on his previous answers. But if he did, he’d have an awful lot of previous testimony to explain away.

It turned out the next answer was better than I could have hoped for when I was putting my cross-exam together beforehand.

Take-Away

Risk is a constant in business. Don’t avoid it—embrace it, measure it, and use it to guide your next action.

If your business ventures may require you to use the court system, whether as a plaintiff to enforce your contractual rights, or as a defendant to protect against attempts to attack your business, identify the risks and discuss them with your lawyer. He or she should be listening so that you can identify a strategy to come up with a soft landing. Just in case.

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Guest post by Michael McCabe, Esquire

It has now been almost one year since the Florida Supreme Court, in Castellanos v. Next Door Co., held that statutory fee limitations on what an injured worker’s attorney could be paid were unconstitutional. In response, the insurance industry has raised workers’ compensation rates by almost 15%. Florida employers and insurance companies now wait to see what, if anything, the Florida Legislature will do to address the situation.

Impact on Employers and Insurance Companies

As a workers’ compensation practitioner, representing only employers and their insurance companies, it is clear that the result of both Castellanos and the lesser known Miles v. City of Edgewater Police Department (a 2016 First District Court of Appeal case that held unconstitutional the workers’ compensation provisions prohibiting an injured worker from contracting independently with their attorney for a contingent fee) have certainly resulted in increased litigation and costs. While the prior fee limitations limited litigation and caused claimants’ attorneys to be selective as to which cases they chose to litigate, the current reality suggests that the opposite is occurring.

Proposed Legislation to Cap Attorneys’ Fees

With its prior attempts to limit the amount of fees that an employer or its insurance company would have to pay an injured worker’s attorney, first in 2008 and again in 2016, the Legislature’s challenge is to find more than a stop-gap solution to fees and resulting claims costs.

Two current proposed bills are currently being considered by the Florida Legislature. They both appear to involve Legislative Amendments to Chapter 440 that addresses recent Florida Supreme Court decisions and focus mainly on attorney’s fee provisions. House Bill 7085 includes amendments that propose a cap of $150.00 per hour on fees paid to claimants’ attorneys, while Senate Bill 1582 caps such fees at $250.00 per hour. This attorney’s concern is that amendments that focus mainly on only attorney fee provisions, and not substantive provisions of the Statute that lead to the payment of attorney’s fees, will be short-lived and not provide long-term relief for Employers and Insurance Companies.

Employers must keep in mind that they (and their insurance company) only have to pay for an injured employee’s attorney’s fees when a Judge of Compensation Claims finds that an employer/carrier improperly denied workers’ compensation benefits, or when an employer/carrier fails to provide due and owing benefits on an untimely basis. In all other instances, including when a claim is settled, the injured employee pays his own attorney’s fees. Therefore, the best medicine for employers and insurance companies is to use the tools available to them to make sure that claims are quickly and accurately investigated so that informed decisions can be made on which claims are compensable and valid, and which claims are not.

Move Forward Strategically

The Workers’ Compensation Defense attorneys at Henderson Franklin can help both employers and their insurance companies come up with strategies to effectively investigate claims and make informed decisions on which claims to contest, and which claims to accept. For those valid and compensable claims that are accepted, our attorneys can provide strategies and information which help employers and carriers limit claims costs.

For those cases spiraling out of control with ever-increasing medical costs, Henderson Franklin’s attorneys can help formulate a strategy to settle those claims at a fraction of what may be paid in the future (and with the employee paying for his attorney’s fees). There are many strategies that employers can apply, both before and after a work accident occurs, to reduce and control costs.

For insurance companies, we are available at a moment’s notice to provide recommendations on local physicians and to provide informed strategies on how a local claimant’s attorney will proceed with litigation. All of our Workers’ Compensation attorneys have over 13 years of experience. We welcome you to contact us with any questions or concerns. I can be reached at michael.mccabe@henlaw.com or by phone at 239-344-1218.

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Make plans now to attend the biggest employment law conference in Southwest Florida, HR Law & Solutions, now in its 25th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Friday, March 10, 2017, for a fun-filled day of education. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers:  Robert C. Shearman, Esquire and Vicki L. Sproat, Esquire
Bob and Vicki will provide an interactive update on notable court decisions, including cases addressing contentious employment policies and other noteworthy employee claims. Attendees will learn practical advice and tips for businesses to reach their goal of a compliant workplace under current laws and regulations.

10:00 – 11:00 a.m. The ADA – 25 Years Later
Speaker:  John F. Potanovic, Esquire
On March 5, 1992, Henderson Franklin sponsored its first “Employer’s Update,” where John spoke to a small gathering at the Royal Palm Yacht Club about a brand new law – the Americans with Disabilities Act (ADA). Much has evolved since then. 25 years later, the Henderson Franklin seminar is called “HR Law and Solutions” and has 300+ attendees each year; the Royal Palm Yacht Club is a Pinchers Crab Shack; and John no longer has need for a blow-dryer. In this session, John will discuss the more difficult issues confronting employers attempting to steer clear of ADA problems, and he will share best practices to assist in dealing with these challenging issues.

11:15 a.m. – 12:15 p.m. How to Avoid Costly Litigation in Workers’ Compensation
Speakers:  David Roos, Esquire, Michael McCabe, Esquire and Tania Ogden, Esquire
Henderson Franklin’s Workers’ Compensation Defense Attorneys will share strategic tips employers can implement to help avoid costly litigation. They will discuss best practices with regard to policies that should be in place before the injury, how to manage and set employees’ expectations when an injury occurs, employer do’s and don’ts, as well as return to work policies. David, Michael and Tania will also share the importance of communication between the employer, insurance company and defense attorney(s) to try and achieve the best outcome possible for the employer.

1:45  – 2:45 p.m. New Year, New Administration: What Does 2017 Hold for Employers?
Speakers:  Panel discussion moderated by Suzanne M. Boy, Esquire, with panelists Robert E. Weisberg, Esquire, Regional Attorney for U.S. Equal Employment Opportunity Commission (Miami) and Benjamin Yormak, Esquire
There is little doubt in employer and HR circles that the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced leaders. After a 2016 that saw the Department of Labor roll out its huge new overtime changes mid-year, only to have implementation halted just weeks prior to the effective date, this has probably never been more true for 2017, when there is significant uncertainty surrounding what the new Administration will mean for employment laws. In this session attendees will have a unique look into what experts from all sides of the employment law world believe is on deck for 2017, including: potential changes to minimum wage and overtime laws, paid sick/maternity leave; the status of sexual orientation/gender identity protections; and, the ever-changing NLRB rulings. The panelists will also share their best tips to help employers stay in compliance and reduce exposure to the many employment claims prevalent today.

3:00 – 4:30 p.m. The Co-Workers’ Challenge
Guest Speaker Scotty Gunther
The Co-Workers’ Challenge is a quick paced, unique program that combines humor, motivational speaking, and leadership training. This session promotes teamwork, communication, and stress relief for HR professionals and other leaders through laughter. The Co-Workers’ Challenge provides participants various tools, strategies and tactics that they can use to help facilitate better communication, forge stronger working relationships among co-workers, and diffuse difficult or stressful situations more effectively.

4:30 – 5:30 p.m. 25th Anniversary Celebration
Please join us for a cocktail hour to celebrate our 25th Anniversary!

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 6 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (our 25th Anniversary Celebration Sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.

Registration

Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

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Guest post by Bonita Springs Trust and Probate Litigation Attorney Richard Mancini:

As Clarence famously said in “It’s A Wonderful Life”:

Strange, isn’t it? Each man’s life touches so many other lives. When he isn’t around he leaves an awful hole, doesn’t he?”

Many plan for the time when their time on earth is over and plan to distribute their wealth to family and friends. Unfortunately, sometimes the plans aren’t clear or the plans forget an important aspect, which leads to fights and litigation after their passing. As we reflect back on 2016 and look to the future, it is critical to have a complete estate plan, but not just any plan.

Continue Reading Reflecting on Trust and Probate Law with Richard Mancini

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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 overtime change is NOT happening December 1.

A federal court in Texas just entered a nationwide injunction, enjoining the Department of Labor’s Final Rule, which was set to make sweeping changes to the white collar exemptions beginning December 1.  Yes, nationwide.  Injunction.  December 1 change, done.  Gone.  If you want to read the opinion, click Nevada v DOL Injunction.

So what does this mean for employers?  For employees?  It means there is no change happening December 1.  For now, the salary level remains at $455/week, or $23,660/year.  Will it happen someday?  Who knows.  The likelihood of it happening under a Republican White House, Senate, and House is, in our opinion, quite slim (at least in its current form).  Once we have had a chance to digest the decision and its effects, we will be back with more information.

We’re not sure what to say right now other than WOW.

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Editor’s Note:  At the time of publishing, there was a typographical error in the title of “Wedding.” We apologize for any confusion.

Amendment 2 has passed – it’s no longer a pipedream (no more puns, we promise). So now what for employers? Will it gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use? There are sure to be other questions and issues arise, some of which may take court cases to fully answer, but let’s take a look at what we know:

  • A Constitutional Amendment takes effect the first Tuesday after the first Monday in January. That would be an effective date of January 3, 2017;
  • The Florida Department of Health will then have six months to pass implementing regulations;
  • The Department must begin issuing patient and caregiver identification cards, and registering MMTC’s (Medical Marijuana Treatment Centers) a/k/a/ “dispensaries”, within nine months from that effective date.

While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law. Consider these facts:

  • The Amendment specifically states that it shall not require accommodation in a place of employment.
  • It specifically states that it does not purport to give immunity under federal law.

Why are these facts important?

Continue Reading Weeding Out Workplace Impacts of Medical Marijuana Legalization

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Thank you to those readers who attended our C-Suite Seminar Kick-off on September 15, 2016. I posted on September 1 about the topic that my colleague, Mark Nieds, Esq., and I would be presenting. If you did happen to miss us on the 15th, Mark and I explained what to do when a shareholder demands an inspection of the company’s books and records.

To make the discussion more lively, we prepared a mock letter.

While the letter didn’t track the statute, our advice was to respond to the letter promptly, pointing out that the company is ready to comply with a document inspection demand that complies with the statute. This way, the company refuses to comply with a demand outside of the statute, but shows it’s ready to promptly comply with a demand within the statute. This will be useful if the shareholder decides to forego a statutory demand and, instead, files suit under Florida Statute section 607.1604. In that scenario, the company will be well-protected and may have an opportunity to recover its attorneys’ fees and costs for an improper document demand.

The take-away from our presentation? Don’t ignore the demand and get your counsel involved early so that you are ahead of the game on this issue. Click here for a link to the handouts.

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Have you ever received a letter from a shareholder in your business demanding an inspection of the books and records of the company? If you never have, count yourself lucky.

Florida Law

That’s because Florida law provides a right for any shareholder to inspect the books and records of a company. Florida Statutes section 607.1602 gives a shareholder the right to inspect various categories of company books and records. The key to evaluating a request is to determine what is being requested. Florida law defines corporate records; not everything for which a shareholder demands an inspection must be provided.

Continue Reading “I demand an inspection of the books and records of the company!”

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Guest post by Eric Gurgold, Florida Bar Board Certified Wills, Trust & Estate Expert

The IRS has just published proposed new regulations under Section 2704 of the Internal Revenue Code that could significantly impact planning for estates that may be subject to estate tax.  If finalized, the proposed regulations would change how transfers of business interests to family members are valued by eliminating certain discounts, disregarding restrictions in transfer agreements and adding attribution rules for family members.  The proposed regulations will not apply to transfers to non-family members.

A public hearing on these proposed regulations has been scheduled for December 1, 2016.  If adopted, the regulations will become final.  A short window of opportunity exists to complete transfers of business interests to family members under the current rules.

If you would like to discuss the impact of the proposed regulations on your estate planning, contact any of our wills, trusts and estates attorneys at 239-344-1100 or by email to eric.gurgold@henlaw.com.

About the Author:

Eric Gurgold currently serves as Chair of the Estate Planning and Administration division and is Board Certified in Wills, Trusts & Estates by The Florida Bar. For over twenty-five years, Eric has concentrated his law practice in the areas of estate planning and administration, elder law, probate litigation, title insurance claims related to probate issues, business law and taxation. He assists clients in the preparation of wills, trusts, family limited partnerships, inventories, inheritance and estate tax returns, as well as providing counsel to minimize income and estate taxes.

Tax photo courtesy of 401(K) 2012 under Flickr Creative Commons License

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Join Attorney Suzanne Boy on Wednesday, August 17, 2016 at Pelican Preserve (in the Magnolia Room – Town Center) as she presents “Wage and Hour Compliance:  What the New Rule Really Means for Florida Employers.”

Tackling wage and hour issues is one of the most challenging (and potentially costly!) legal issues faced by businesses today. Add on the Department of Labor’s new Final Rule on overtime, which includes a complete overhaul of the salary basis portion of the primary overtime exemptions, and even the most experienced business owner, HR professional, or manager may face compliance issues. Florida employers need to take steps now to prepare for and make decisions on how to incorporate the changes required by the Final Rule. In this detailed session, attendees will learn tips regarding a broad variety of wage and hour issues, along with key actions to implement now to prepare their businesses for the upcoming changes.

This course has been approved for 1.5 HRCI Re-certification Credits (General) and 2.0 SHRM PDC’s.

Cost is $25.00 per person and includes a buffet breakfast.

Registration and breakfast begin at 7:30 a.m.  The session will begin at 8:00 a.m. and conclude at 10:00 a.m.

Please click here to register.

If you have any questions or concerns, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.