Guest post by John M. Miller, Esquire, Stockholder in Henderson Franklin’s Tort & Insurance Litigation Group

I recently spoke on the topic of “Establishing Social Media Policies, Contracts and Legal Advice for PR Professionals” to members of the Gulf Coast Chapter of Public Relations Society of America (PRSA) in Naples. Social media continues to be a hot topic for employers and thought it would be good to share a few items that were discussed.

In the Beginning

Under the Obama administration, the National Labor Relations Board (NLRB) developed an employee-favored social media policy. The NLRB broadly protected private employees in their social media activity. Private employees could not be fired or punished for posting certain information on social media. Specifically, private employees are permitted to engage in “concerted activity” which is a fancy term for discussing their working conditions on social media. But, what does it really mean?

What exactly may an employee say about his or her work on social media without being reprimanded or disciplined?

Continue Reading Can Employers Regulate an Employee’s Social Media Content?

Sales taxes have always been major revenue sources to the states, including Florida which has a state-wide 6% sales tax. However, for years, consumers have turned to the Internet to make purchases in part to be able to avoid this because most Internet sales transactions were not subject to any state or local sales tax. This changed on June 21, 2018 when the United States Supreme Court issued a 5-4 decision in South Dakota v. Wayfair overturning earlier decisions and paving the way for states to collect sales taxes from online retailers for sales of goods to in-state residents.

Previously, a state could not require an out-of-state or online retailer to collect sales taxes from its customers if that retailer did not have an actual, physical presence within the state. Over the last 20 years or so, Internet commerce and retailing has become a major part of the U.S. economy. Since online retailers without a physical presence in a state were not required to collect sales taxes, this led to trillions of dollars in online sales transactions going basically tax free. This had a direct impact on states’ sales tax revenue.

Impact of Wayfair Decision

In Wayfair, the Supreme Court recognized how the Internet has changed the economy and how consumers shop and also the realities that these changes have wrought to many states’ budget shortfalls. Now, under Wayfair, an online retailer does not need to have any actual physical presence within a state in order to be required to collect sales taxes. It will be up to the individual state to determine whether it wants the online retailer to collect sales tax or not.

On one hand, consumers stand to lose a bit under Wayfair because now Internet purchases can be subject to sales taxes at the point of checkout. In Florida such purchases have been subject to tax all along, since the state technically requires the consumer to report and pay a “use tax” on any items where sales tax was not paid at the time of purchase. However, this regulation has not been vigorously enforced rendering Floridian’s Internet purchases essentially tax free. Going forward, if Florida requires online retailers to collect the sales taxes, those taxes will be added directly to the purchase price in the online shopping cart and paid by the consumer at checkout. This makes goods more expensive to the consumer.

On the other hand, many view this as a benefit to small business because small, local businesses with physical locations often lost sales to online retailers from consumers seeking to avoid sales tax. Post Wayfair, if the online retailer is required to collect sales tax at checkout, the playing field becomes a bit more level by making online purchases potentially little less attractive and bringing consumers back to local businesses, where at least they may not have to pay shipping costs as well.

Similarly, under Wayfair, states stand to benefit because they will be able to capture a tax revenue stream more efficiently than leaving it up to the consumer to voluntarily report and pay via use tax. This new revenue can help significantly to narrow budget gaps in some states.

Bottom Line

Regardless how one looks at the costs or benefits of Wayfair, the decision does significantly alter the current sales tax environment. While it may be some time yet before we see how Florida—or any other state—will react and how it will implement any new sales tax scheme, the landscape is certainly going to change. Henderson, Franklin will continue to monitor how things may change and our attorneys are available to discuss how these changes might impact your business.

On June 21, 1788 the U.S. Constitution was ratified. It contains a clause in Article I, Section 8 providing that Congress shall have the power to

promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This led to the Patent Act of 1790, signed into law by George Washington in April of that year. Since the founding, patent protection has been afforded to “new and useful” processes, machines, articles of manufacture, compositions of matter, ornamental designs and even plant strains. Patent protection provides inventors the right to exclude others from making, using, selling or importing an invention throughout the United States without the inventor’s consent.

Continue Reading Ten Million Patents – What a Long Strange Trip It’s Been

Just in time for the start of the 2018 hurricane season, the Florida Department of Economic Opportunity (DEO) has launched a new website, FloridaDisaster.biz, to help Florida businesses prepare for and recover from hurricanes and other disasters.

In a recent press release published by Florida Trend Magazine, Governor Rick Scott said:

Floridians understand the importance of being prepared for disasters, especially during hurricane season. This new website will help businesses make safe and informed decisions for themselves, their employees and their customers. Every Florida business can visit FloridaDisaster.biz, make a disaster plan and stay updated as we move further into hurricane season.”

The website focuses on three main areas: Continue Reading State Launches FloridaDisaster.Biz to Help Florida Businesses

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

5Pointz

The building once known as 5Pointz was a block-long warehouse structure in Queens, NY. During the ‘90s, the area was rundown and crime-riddled. As a way to discourage vandalism to the building, the owner allowed graffiti artists to paint on the walls, giving them a canvas to display their works. Ultimately, the 5Pointz building became well known among graffiti artists and tourists and artists traveling from all around the world to add their art to the structure. For almost 20 years the developer and the artists existed this way. However, wanting to take advantage of rising real estate prices, in 2010 the owner of the building decided to redevelop it as a residential complex. The owner ultimately obtained permits to demolish the buildings and redevelop the parcel.

The Litigation

Continue Reading Landowners and Artists: Be Careful Before You Remove Street Art

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?

We are just TWO WEEKS away from the 26th Annual HR Law & Solutions seminar – where does time go?!  Our HF team is working hard on final preparations, and we are excited to see that so many of our readers have already registered. If you haven’t registered, there is still time! You can register online now by clicking here or by contacting Gail Lamarche at 239-344-1186 or gail.lamarche@henlaw.com.

For those of you who will be attending, we need your help to make the Employment Law Potpourri session as helpful to our audience as possible. During that session, we will go through a general update on some of the employment/HR-related hot topics that we did not otherwise address earlier in the day, then we will answer questions from the audience. If you would prefer not to waive your hand and ask your question in front of your 350-closest HR friends, please email them to me before the seminar. We will keep your name and company confidential, but we will make sure to address the question in that session. Time permitting, we will also take questions from the floor, so don’t be shy! We will take the written questions first, though, so if you have a burning question you’d like us to address, please do send it our way.

Guest post by: Richard Akin, Esquire

Whether you are a realtor, a contractor, a health care professional or a licensed professional of any kind, maintaining your professional license is vital to your livelihood. While each type of license has different requirements for initial licensure and continuing education, certain types of conduct will inevitably subject your license to discipline no matter your professional field.

You likely know the big/obvious violations to avoid, but often times it’s the smaller violations that can cause problems for the average professional. Continue Reading Five Ways to Endanger Your Professional License

Guest Speaker Steve Gilliland

Make plans to attend the largest employment law conference in Southwest Florida, HR Law & Solutions, now in its 26th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Tuesday, March 6, 2018, for a fun-filled day of education and networking. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers: John D. Agnew, Esquire and Robert C. Shearman, Esquire
John and Bob will provide an interactive update on notable court decisions,
including cases addressing contentious employment policies and contract provisions, discrimination against protected classes of workers, as well as other noteworthy employee claims. EEOC trends and legislative developments impacting employers also will be addressed.

10:00 – 11:00 a.m. When Can I Fire This Injured Employee
Panel: Michael McCabe, Esquire (Moderator); Martha Bryson, SHRM-SCP, SPHR; John F. Potanovic, Esquire; David H. Roos, Esquire; and, Frank W. Piazza, Esquire (Mediator)
A panel of workers’ compensation and employment defense attorneys will be joined by an HR professional and a claimant’s attorney/mediator to address best practices when confronted with discipline or termination of an employee with an ongoing or recent workers’ compensation claim. The discussion will explore issues that can arise when dealing with this sensitive scenario, under workers compensation law, the ADA, and the FMLA, with the goal of avoiding unnecessary costs (wages and benefits) and reducing the risk of litigation.

11:15 a.m. – 12:15 p.m. #MeToo: Addressing the Harassment Epidemic in the Workplace
Speakers: Suzanne M. Boy, Esquire and John F. Potanovic, Esquire
One can hardly turn on the news these days without being bombarded by allegations of sexual harassment against celebrities and other public figures. #MeToo has become a powerful symbol of just how widespread sexual harassment is across the planet, with women and men of all backgrounds and in countless professions sharing their stories of abuse and harassment. In this session, attendees will learn about the many forms of sexual harassment, the types of behavior the courts say constitutes sexual harassment, the EEOC’s guidance and legal considerations regarding harassment, and an employer’s obligations under the law. Attendees will also learn practical tips, including specific actions to foster a harassment-free workplace; how to develop and enforce an anti-harassment policy; and day-to-day management practices that safeguard an organization.

1:45  – 3:15 p.m. Hide Your Goat: Strategies to Stay Positive When Negativity Surrounds You
Guest Speaker: Steve Gilliland
Not only do problem employees perform poorly, they make it tough for everyone else to do their jobs, too. The infection can spread quickly and those who discharge the poisonous toxin are masquerading as managers, supervisors and co-workers. The venom they eject produces by-products of bad attitudes, including resistance to change and personality conflicts. They cost plenty in terms of productivity and morale and make life tough for everyone. They delight in getting your goat! You’ll learn why people have bad attitudes and explore ways to head off conflict and confront people about their bad attitudes. Armed with information you gain from this session, you’ll be on your way to finding win-win solutions that will have you and your colleagues working effectively together. This session is guaranteed to make you laugh a lot, learn a lot, and leave outfitted with the means necessary to Hide Your Goat.

3:30 – 4:30 p.m. Employment Law Potpourri
Panel: John D. Agnew, Esquire; Suzanne M. Boy, Esquire; John F. Potanovic, Esquire; Robert C. Shearman, Esquire; David H. Roos, Esquire; Michael McCabe, Esquire
The legal issues facing HR professionals in the current economic climate are many, and the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced HR professional. Thorough knowledge of employment laws, early recognition of issues, and swift problem solving is key to reducing your company’s exposure to the many employment claims so prevalent today. Have questions you would like answered by the panelists? Email them in advance to Gail Lamarche at gail.lamarche@henlaw.com.

4:30 – 5:30 p.m. Happy Hour
Please join us after the conference for happy hour.

Continuing Education

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

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (breakfast and happy hour 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.