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Commercial leases and short-term residential rentals are generally subject to sales tax, and it is the tenant’s responsibility to pay it, but the landlord’s responsibility to collect and remit the tax to the Florida Department of Revenue. Other than writing the check to the landlord for the rent, including the sales tax, the tenant often forgets about the sales tax issues. However, there are areas where the tenant could still be responsible directly to the Department of Revenue, as well as areas for planning when negotiating the lease terms.

What if the landlord fails to pay the Department of Revenue?

Sales taxes are what are commonly referred to as “trust fund taxes,” meaning the person collecting the tax (here, the landlord) is holding those funds in trust for the state. Those monies are the state’s property at the time of collection, and if the landlord fails to pay it to the state, the state can then seek the taxes, penalties, and interest not only from the landlord-entity, but from its owners, officers, and employees who were responsible for paying (or failing to pay) the tax. Depending on the circumstances, criminal sanctions may also be sought.

Continue Reading Sales Tax on Leases – Traps for the Unwary

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We are excited to announce that Suzanne Boy will be presenting at the Florida Law Alliance Employment Law Conference, taking place on Thursday, November 12, 2015 at the law offices of Hill, Ward & Henderson in Tampa, Florida. Henderson Franklin is a member of the Florida Law Alliance, a group of six independent law firms practicing throughout Florida. The firms have combined their knowledge, efforts, and resources to increase efficiency, lower costs, expand the scope and improve the quality of legal services each firm provides to its own clients.

Topics and Speakers

Avoiding and Defending Wage and Hour Class and Collective Actions presented by Attorney Craig Salner from the Clarke Silverglate firm in Miami. Employers know that the only lawsuit you win is the one that never gets filed. In the case of wage and hour litigation, this is particularly true of collective actions under the Fair Labor Standards Act (“FLSA”) and class actions under State law counterparts. This presentation will focus ways to defend class and collective actions or better yet, avoid them altogether. Continue Reading LGBT, Social Media and EEOC Charges to be addressed at Fall Employment Law Conference

We are excited to announce that Paul Dean, a local investigator with the Department of Labor (DOL), will speak at next week’s SHRM SWFL meeting about various wage/hour issues. No, we are not excited because our favorite group of HR professionals plans to throw food at Paul (if you’re reading this, Paul, we promise we won’t do that!). We are excited because this is an excellent opportunity for employers to learn straight from the DOL – the agency charged with enforcing the ever-changing and ever-dangerous wage/hour laws. Paul will address important issues that impact nearly all businesses, including exemptions from overtime, record-keeping requirements, deductions, and tip credit issues.

The meeting is Wednesday, August 12, 2015 at Crowne Plaza Bell Tower. Registration begins at 11:00. $21.00 for SHRM SWFL members, $25.00 for non-member. Click here to register: http://hrmaswfl.shrm.org/events. We hope to see you there!

Image courtesy of wikimedia commons

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Addiction is one of the most prevalent and costly issues affecting businesses today. Yet the strategies employed by most human resource professionals have changed very little since the Drug Free Workplace Act was signed into law in 1988. Human resource professionals will have an opportunity to hear from national and local experts who will deliver cutting-edge information and practical tools to address this significant problem.

The Hazelden Betty Ford Foundation, SHRM SWFL and the Bonita Springs Area Chamber of Commerce will present “New Strategy and Tactics for HR Professionals to Address the Largest Threat to Workplace Health” on August 11, 2015 from 7:30 a.m. to 4 p.m. at Florida Gulf Coast University in Edwards Hall 112 in Fort Myers. Patrick Nolan, anchor and journalist from WFTX-TV, will provide opening remarks and introductions. Cost for the full day is $25 and includes breakfast and lunch. Attendees will receive up to eight certification credits through HRCI and SHRM and a newly released research update will also be distributed to the attendees upon completion of the program.

Speakers and Topics: Continue Reading Suzanne Boy to present at Southwest Florida Symposium on Addiction in the Workplace

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Ronald Reagan famously once said: “The nine most terrifying words in the English language are ‘I’m from the government and I’m here to help.'”

On January 13, 2015, the State of Florida entered into an agreement with the U.S. Department of Labor (“DOL”) with the goal of preventing the misclassification of employees as independent contractors. It is part of DOL’s “Misclassification Initiative.” Nationally, this initiative has meant a significant increase in the number of investigations undertaken by DOL, and Florida employers can expect greater scrutiny in light of the agreement with DOL.

How’s the initiative going so far? Two very recent cases caught our attention. Just a few days ago FedEx settled with the DOL by agreeing to pay $227 million to delivery drivers in California that were classified as independent contractors. FedEx will bounce back – aren’t drones going to be delivering packages soon anyway?

Continue Reading Yikes…Uber Drivers are Employees, Not Independent Contractors?

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The Affordable Care Act of 2010 (the “ACA”) is one of the most complex pieces of legislation ever enacted by Congress. Nonetheless, within the morass of that very complicated legislation, there is a relatively straightforward rule applicable to “Grandfathered” Health Insurance Plans. Basically, under the ACA, a group health insurance plan in existence as of March 23, 2010, is exempt from many (but not all) of the ACA’s requirements. If, however, the employer enters into a “new” health insurance plan after March 23, 2010, then all the ACA’s requirements apply to the employers’ health insurance plan. Seems pretty straightforward, right? Well, even the relatively simple legal principles become complicated in the right (or wrong) circumstances. This blog post evaluates a specific situation where what should be a straightforward application of the ACA’s grandfathering rules becomes….not so straightforward; and also illustrates the relationship between legal requirements, and the interplay of legal options and practical considerations imposed by group health insurance carriers.

The Employer – Dental Associates of Florida, D.M.D., P.A.

The case study that is the subject of this blog post is a Florida dental practice called “Dental Associates of Southwest Florida, D.M.D., P.A.” (This is NOT its real name, of course). Dental Associates of Southwest Florida, D.M.D., P.A. (“Dental Associates”) has just been established by a young, relatively recent doctor of dental medicine whom we shall call “Dr. Julie” (also not her real name). Dr. Julie has an undergraduate degree in chemistry, and has always been interested in dental polymers. So, in addition to practicing as a general dentist, Dr. Julie also establishes a small laboratory in which she develops and creates dental crowns for her patients that require such implements. Continue Reading Grandfathering Rules under the Affordable Care Act: A Case Study

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Attorneys David Roos and Michael McCabe met with several attendees at the HR Law & Solutions seminar last month, in a question and answer session to address specific issues from a workers’ compensation perspective. A major focus of the questions centered around the extent to which HR policies, practices, and procedures would be affected by a pending workers’ compensation claim. Questions also addressed how much control an HR manager or employer has over issues that would normally result in disciplinary actions, including termination.

Have Consistent Policies and Procedures

David and Mike explained that an employer retains the same level of control over employee conduct regardless of a pending workers’ compensation claim, and that an employer could exert that control through consistent implementation of HR practices and procedures. According to David and Mike, this would eliminate potentially expensive employment law actions such as retaliatory discharge. HR professionals need to maintain the same practices and procedures that apply to all employees, and need to keep in close contact with their insurance company adjuster and defense attorney (if one has been retained) to make sure that the employer is aware of how an HR decision affects the pending workers’ compensation claim. Understanding how HR decisions, such as termination, affect the underlying injury claim allows the employer to understand how those decisions will increase (or decrease) the costs of a workers’ compensation claim – and ultimately future insurance premium increases.

When Does Termination Affect Workers’ Compensation Benefits? Continue Reading Workers’ Compensation Update – 2015 HR Law & Solutions

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This blog is a sequel to our previous post summarizing the rules and regulations governing an employee’s use of intermittent FMLA leave, which you can find here.

Managing employees’ requests for intermittent FMLA leave can be complicated and frustrating. Intermittent leave is difficult to track. It is often abused (or is it merely coincidental that leave is most often requested for a Friday, Monday, or the day before a holiday?!). Intermittent leave causes workplace disruption—especially when it is unforeseeable. Employee morale is often affected when co-workers are forced to pick up the slack for an absent co-worker. Although employees on intermittent leave may be temporarily reassigned to a different position, they must still be restored to their original position at the end of the approved leave period. No wonder that FMLA leave is a chronic HR headache!

Here are a few tips for treating this chronic headache: Continue Reading Intermittent FMLA Leave: A Chronic HR Headache (Part II)

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In 2013, the Florida Revised Limited Liability Company Act (the “Act”) was signed into law. The Act was codified in an entirely new chapter in the Florida Statutes, Chapter 605. However, the then-current Limited Liability Company Act, found in Chapter 608, did not immediately vanish with the introduction of Chapter 605. Instead, to provide for time for businesses and the legal community to adjust to the new Act, special transition rules were implemented. All LLCs formed in or registered to do business in the state prior to January 1, 2014 were still subject to the provisions of Chapter 608 unless they elected otherwise; those formed after that date were subject to Chapter 605. This transition period, where both Chapters were operative, was short-lived. As of January 1, 2015 all LLCs organized under Florida law or registered to do business in the state are governed by the rules found in Chapter 605.

What Changed Besides Chapter Numbers?

Continue Reading Does Your Operating Agreement Still Mean What You Think it Means?

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At HR Law & Solutions last month, attendees asked tough questions about handling requests for intermittent leave under the FMLA. We promised to write a blog post summarizing current rules and regulations, so here goes:

Intermittent leave is FMLA taken in periodic short blocks of time for a single FMLA qualifying reason. Common reasons for intermittent leave include time off for an employee’s occasional medical appointments, flare-ups of a chronic condition (ex. migraines), or periodic treatment of an ongoing disease (ex. chemotherapy). Intermittent leave can also be taken for a family member’s serious health condition or for military caregiver leave. Employers must also grant intermittent leave to an employee whose spouse, parent or child is called up for active military duty.

Continue Reading Intermittent FMLA Leave: A Chronic HR Headache (Part I)