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.

As the laws change, we strive to share how they will affect our clients and readers of this blog. Thus, we are pleased to share the following guest post by Florida Bar Board Certified Wills, Trust and Estate Planning Attorney Eric Gurgold.

The Tax Cuts and Jobs Act does not repeal the Federal estate tax. Instead, the Act doubles the amount of wealth that is exempt from the estate tax. In 2018, the new estate tax exemption will be $11,200,000 per individual. A married couple may be able to shield $22,400,000 from Federal estate taxes. The exemption is indexed to increase each year with inflation. However, the changes to the exemption will sunset and revert to today’s numbers after 2025.

Given the high estate tax exemptions, it is possible that not enough estate taxes will be paid to justify retaining the Federal estate tax; and Congress may repeal it.

Would Repeal of the Estate Tax be Good for Your Bottom Line?

Continue Reading The Tax Cuts and Jobs Act Does Not Repeal the Federal Estate Tax!

Guest post by Beth T. Vogelsang, Esquire, Florida Bar Board Certified Divorce, Marital and Family Law Attorney

President Trump is expected to sign a sweeping tax overhaul into law this week. The final draft of the proposed tax bill was released by Congressional Republicans on Friday, December 15, 2017 at 5:30 p.m.  One important provision of the tax reform that divorce lawyers and certified divorce financial analysts have been carefully monitoring is the proposed repeal of the alimony deduction.

Under the current tax code, amounts paid to a spouse or a former spouse under a divorce or separation instrument (including a divorce decree, a separate maintenance decree, or a written separation agreement) may be alimony for federal tax purposes. Alimony is deductible by the payor spouse, and the recipient spouse must include it as income. The latest bill eliminates the tax deduction for payment of alimony.

The repeal of the alimony deduction applies to any divorce or separation instrument executed after December 31, 2018. The House bill would have eliminated these alimony deductions a year earlier, starting in 2018. This gives some breathing room to try to get pending cases finalized, but spouses going through a divorce case involving alimony claims must conclude their cases before the end of 2018 to take advantage of the current tax law. While this may seem like a windfall for recipients of alimony going forward, eliminating the deduction will result in lower alimony awards and it will decrease the cash flow available. This is because alimony payors are generally in a higher tax bracket than recipients; so the amount of the tax savings to payors deducting alimony payments above-the-line is higher than the tax liability of the recipient.

Although divorces concluded prior to the effective date are grandfathered in, and the repeal will not affect those already paying alimony, the new legislation may be applied to divorce decrees which are modified after December 31, 2018 even if the original decree was entered before December 31, 2018, if the modification agreement or order expressly states that the new rule applies. This appears to leaves it in a court’s discretion whether to make future modifications of alimony non-taxable and non-deductible. The landscape is plainly changing when it comes to alimony, with the result that there will be less money in the pot to divvy up.

About the Author

Beth T. Vogelsang handles family law matters in a confidential, compassionate and professional manner. She represents clients in complex divorces, including matters involving international and interstate child custody disputes, intricate business valuations, and identification and tracing of marital assets and income. She also drafts and litigates matters involving prenuptial and postnuptial agreements. Beth has been Board Certified in Marital and Family Law since 1992.

Beth has received much recognition for her work in the divorce and family law field. She has been included in Florida Super Lawyers magazine (2012-2017) and named one of the Top 50 Women Attorneys in the State in 2014 and 2015. Beth has also been included in Best Lawyers in America (2013-2017) and was named the “Fort Myers Family Law Lawyer of the Year” in 2015 and 2017.  She is also AV rated by Martindale Hubbell.

 

There is a change in the federal partnership audit rules that take effect for tax years on or after January 1, 2018, that may impact you.

Who is Affected?

All entities classified as partnerships for federal tax purposes. This includes, for example, multi-member LLC’s that have not elected to be taxed as corporations (C or S). If the entity files IRS Form 1065, it is a partnership. Certain partnerships may opt out of the new audit rules, but they must meet the eligibility requirements, including identity and number of partners (no more than 100 partners, all must be individuals, estates, C corporations and S corporations).

The Changes

The new law and regulations proposed by the IRS will replace the current audit regime. The details of the changes to the audit regime are beyond the scope of this letter, but in general, under the new partnership audit rules, any adjustments to tax items for a partnership are generally determined, and the tax attributable to such adjustments is assessed and collected, at the partnership level, with the tax assessed at the highest tax rate then in effect. The adjustments relate to a prior year (the “reviewed year”), but the assessment and collection of the tax will affect the partners in the year of the assessment (the “adjustment year”). The partnership may be able to elect to “push out” the adjustments to the partners who were partners in the reviewed year, rather than assessing it at the partnership level.

In addition, the partnership is now required to designate a “partnership representative” on an annual basis. This designation replaces the appointment of a “tax matters partner” under the prior regime. Comparing the two, the requirements for who may serve as a partnership representative are broader (e.g., not required to be a partner) and the partnership representative has significantly more authority in dealing with the IRS on behalf of the partnership (i.e., sole authority to act and the other partners have no right to receive notice from the IRS or participate in the audit).

What Does This Mean For You?

All partnership agreements (or operating agreements, in the case of an LLC taxed as a partnership) should be reviewed and amended to adopt appropriate changes to reflect the application of the new IRS rules effective January 1, 2018. The nature of these amendments will differ among partnerships/companies depending on the specific situation. Changes may include:

  • appointing the partnership representative, with a mechanism for appointing replacements and any contractual limitations on his authority;
  • ensuring the partnership is eligible to opt out of the rules by restricting who can be a partner;
  • providing for a method of allocating the adjustments in the event of changes in partners between the reviewed year and the adjustment year; and/or
  • providing for an election to “push out” the adjustments to the reviewed year partners.

Please feel free to reach out to any of our tax attorneys to update your partnership’s and/or company’s agreements to remian compliant with these federal tax law changes: