Guest post by Michael McCabe, Esquirehurted hand and work injury claim form

Earlier today, the Florida Supreme Court rendered its opinion in the workers’ compensation case Westphal v. City of St. Petersburg. The Court held the 104 week limitation of Temporary Total Disability (“TTD”) benefits in section 440.15(2)(a), Florida Statutes, to be in violation of an injured workers’ constitutional right to access to courts. The remedy reached by the court is to “revert” to a pre-1994 version of 440.15(2)(a), which provided payment of up to 260 weeks (5 years) of TTD benefits, before an injured worker reaches what is referred to as Statutory Maximum Medical Improvement (“MMI”).

Unique Case

While the impact of the Court’s opinion will be broad, the facts of Westphal were quite rare. An injured worker had been paid TTD benefits for 104 weeks, was still on an off-work status, and the workers’ compensation physician refused to release the claimant to return to work or place the claimant at MMI, until additional surgery was performed.

Continue Reading Breaking News: Florida Supreme Court Rules 104-week Limitation on Temporary Total Disability Payments Unconstitutional

Last week, the Defense of Trade Secrets Act (“DTSA”) was signed into law. The DTSA creates a federal legal scheme for the protection of trade secrets. Previously, protection of this form of intellectual property was solely a matter of state law, unlike patent, trademark and copyright, which have always been matters of federal law. The DTSA has a number of unique provisions, one of which immediately impacts employers who use confidentiality agreements with their employees. My colleague Mark Nieds and I offer the following summary of this new law.

Whistleblower Protection

Due to concerns over the impact that confidentiality agreements might have on employees who might otherwise report their employer’s wrongdoing to the government, an amendment was tacked on to the DTSA to provide civil and criminal immunity to whistleblowers under state and federal law for disclosing confidential or trade secret information to the government as part of whistleblowing activity.

Continue Reading Why Employers Need to Review Employment and Confidentiality Agreements in Light of the Newly-Enacted Defense of Trade Secrets Act

The moment we have all been waiting for (dreading?) has arrived — the Department of Labor issued its “Overtime” Final Rule.  The details are available on the DOL’s website, with the “official” Final Rule to be published in the Federal Regulations tomorrow.

As anyone who follows HR or employment law knows, this Final Rule has been highly anticipated — not to mention hotly debated — due to what is essentially a complete overhaul of the salary basis portion of executive, administrative, and professional overtime exemptions.  We now know:

  • The new minimum salary basis is $913/week or $47,476/annually.
  • The highly compensated employee salary basis jumps to $134,004/annually.
  • The salary basis will be “automatically” updated every three years, beginning January 1, 2020.
  • Employers may now use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the salary basis.
  • Perhaps most importantly, the effective date of the Final Rule is December 1, 2016.

To me, what stands out the most is the effective date — it gives employers much more time to adopt the new regulations than most people anticipated (some suspected it would be as few as 30 days).  So, that’s good news for the thousands of employers who will be impacted by these changes.  Also notable? The DOL did not make any changes to the duties test for any of the exemptions.

Once we have a chance to fully digest the Final Rule, we will be back with additional updates.   In the meantime, check out the DOL’s Questions and Answers section and Fact Sheet for additional information.  You can also comment on this post or email me directly if you have questions.  Stay tuned!

Guest post by Workers’ Compensation Attorney Michael McCabe:

On April 28, 2016, the Florida Supreme Court entered its long-awaited decision in the case of Marvin Castellanos v. Next Door Company, et al. The Court held that the statutory limitations on Workers’ Compensation attorney’s fees created by the Florida Legislature violated the Due Process clause of both the Florida and United States Constitutions. Rather than a limited fee based on a percentage of the benefits actually secured, attorneys representing injured workers may now be awarded an hourly fee for time and effort reasonably spent litigating Workers’ Compensation benefits.

Out with the Old (Formula)

In 2009, the Florida Legislature amended Florida Statutes Section 440.34 to create an irrebuttable presumption that only allowed a judge to award a statutory guideline fee in a Workers’ Compensation case, instead of giving a judge the discretion to award either the statutory guideline fee or an hourly fee. This “guideline” resulted in the following formula that limited the amount an injured worker’s attorney could be paid to:

  • a fee based on 20% of the first $5,000 of the amount of benefits secured by the attorney;
  • 15% of the next $5,000.00 of the amount of benefits secured;
  • 10% of the remaining amount of benefits secured to be provided during the first 10 years after the date the claim is filed; and,
  • 5% of the benefits secured after 10 years.

In Castellanos, this statutory formula resulted in an attorney’s fee of $822.70, despite the fact the worker’s attorney reasonably spent 107.2 hours litigating a complex case to secure benefits for his client. This made the effective rate for the attorney $1.53 per hour. The First District Court of Appeal affirmed the result, noting it was constrained to abide by the statutory formula, but it certified the question to the Florida Supreme Court.

In considering the constitutionality of the statutory attorney fee limitation, the Florida Supreme Court addressed:

  1. whether the Legislature “was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid;”
  2. whether there was a reasonable basis for a conclusion that the statute would protect against the abuse’s occurrence; and
  3. whether the expense and other difficulties of individual determinations on attorneys’ fees “justify the inherent imprecision of a conclusive presumption against an award of fees to an injured worker’s attorney,” that would not be limited to the statutory formula.

Analysis of the Decision

Continue Reading Florida Supreme Court Finds Limitations on Workers’ Compensation Attorney’s Fees Unconstitutional

12472462_1068263593215300_3007634210112393767_nLast week we hosted the 24th Annual HR Law & Solutions seminar. THANK YOU to the 340 attendees (record attendance!) who helped us make it such a great success! As usual, our Henderson Franklin crew had a blast getting to catch up with so many familiar faces, and we were excited to welcome many new faces in the crowd as well.

In addition to a full morning of education on various employment law topics, we featured two fantastic guest speakers, Jennifer Shirkani and Ethan Wall. We also inducted Laura Boyette, Marty Bryson, Marianne Davis, Carol Docker (pictured above) and Tracey DiBiase (pictured below) into the HR Law & Solutions Hall of Fame. Additional photos from the day can be found on Henderson Franklin’s Facebook page. 12670625_1068263719881954_4434719861077534437_n

Special thanks goes to our amazing major sponsors, Lykes Insurance and Gravity Benefits. Our seminar would not be the same without our long-standing partnership with lunch sponsor Lykes, and Gravity was a fantastic addition as this year’s breakfast sponsor. We look forward to partnering with both groups for years to come.

Speaking of years to come, next year is huge – it is our 25th Anniversary! Planning is already underway for what we hope proves to be our biggest and best seminar yet! This is where you come in – we would like your feedback on how we can achieve this goal. First up? Choosing the date. Historically, we’ve done the seminar on Tuesdays. This year, it was Monday. In the seminar evaluations, a few people suggested that Friday would be the best day (we really do read every single evaluation!).  What say you, readers?

Once we have shored up a date and location, we will be asking for your feedback on topics you would like to hear, and what format(s) you prefer. What better way for us to ensure the 25th Annual HR Law & Solutions is the best ever, but to give you, our faithful attendees (and future attendees!) what you want?

Thank you all in advance for your feedback. If you have additional thoughts, please know we are always interested in hearing them!

On behalf of the entire employment law team at Henderson Franklin, I want to send a final heartfelt thanks to our attendees and sponsors for making last week’s seminar so amazing. It really is like a reunion to us, and although there is an incredible amount of work that goes into it (especially from Gail Lamarche!), it is absolute one of the highlights of each year for us.

See you in 2017!

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We are so excited to announce that registration is now open for the 2016 HR Law & Solutions Seminar. Now in its 24th year, this full-day seminar is a fantastic opportunity for both new and experience HR professionals and other business executives to learn about important employment laws, network with their peers, and, of course, have a little fun! This year, we return to the gorgeous Sanibel Harbour Resort and Spa on, Monday, April 4, 2016. Topics and speakers include:

  • Legislative and Case Law Update. Attorneys Robert Shearman and Vicki Sproat will provide an interactive update on notable court decisions, including cases addressing contentious employment policies and contract provisions, and other noteworthy employee claims.
  • The Intersection of Immigration and Employment Law: What You Need to Know and Probably Don’t. Immigration law is a hot button topic in our country’s current political landscape, particularly since this is an election year. For many HR professionals, the relevancy of immigration law is limited to I-9 forms and E-Verify. Attorney Tulio Suarez will give attendees insight on key immigration-related HR issues potentially faced by all employers.
  • Breakout Sessions. Henderson Franklin’s employment law, immigration, and workers’ compensation attorneys will break out in smaller groups to facilitate discussions and give attendees an opportunity to gain more information on specific topics of interest to them and answer any legal questions on any aspect of laws and issues impacting their workplace. More specifically:
    • Welcome to the Company, Please Sign Here. In such a litigious climate, it is more important than ever for employers to have their workplace documentation in order from the start of the employment relationship. Attorneys John Agnew and Suzanne Boy will give HR professionals, business owners, and managers guidance on how to prepare and implement solid employment policies and contracts.
    • You’re From the Government, and We’re Here to Help. Claims against government or other public sector employers often present special challenges. Attorneys John Potanovic and Bob Shearman will delve into the framework of, and best practices in dealing with, Florida Public Sector Whistleblower claims and Constitutional claims.
    • Tips to Recognize, Reduce, and Deal with Workers’ Compensation Fraud in the Workplace. For many HR professionals, employers, agents, attorneys and adjusters, fraud in the workers’ compensation system is often frustrating and confusing. Attorneys David Roos, Michael McCabe and Tania Ogden will give attendees insights on key issues and strategies to recognize and identify insurance fraud at the time of hire, after a reported work accident, during the course of providing benefits and how to best deal with the situation.
  • Ego vs. EQ: How Top Business Leaders Beat Eight Ego Traps with Emotional Intelligence. Somewhere along the line, while climbing the corporate ladder or growing their own company, highly-technical strong employees can struggle with maintaining a healthy level of Emotional Intelligence (EQ) that keeps them connected to their workforce and grounded in the day-to-day realities of their business. The risk of falling into “ego traps” increases, hurting the business and threatening their hard-won success. In this session guest speaker Jennifer Shirkani will help attendees discover ways to be an inspirational and emotionally-engaging leader.
  • Lawful and Unlawful Use of Social Media for Hiring and Retention. Researching applicants for employment is common place in today’s online environment. If your company searches prospective candidates on social media without appropriate guidelines to ensure compliance with state and federal laws, you may be subject to lawsuits for discrimination. Social Media Attorney Ethan Wall will educate attendees on the laws that govern the use of social media for hiring and retention.

Continuing Education

This conference has been approved by SHRM for 5.25 PDCs and by HRCI for 5.25 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor), Charlotte County SHRM, SHRM SWFL, and HR Collier.

Overnight Accommodations

Since the seminar is on Monday this year, we have reserved a block of rooms at Sanibel Harbour for $189/night. To make hotel reservations, click here. Reservations must be made by March 3 to take advantage of the group rate.

Seminar Registration

Registration is $40 per person and includes a continental breakfast, plated lunch, seminar materials and valet parking. Click here to download the brochure. Click here to register.

If you have any questions, please let us know. We look forward to seeing you all on April 4!

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On October 28, 2015, United States Citizenship and Immigration Services (USCIS) announced the latest enhancements to its E-Verify® Internet-based Employment Eligibility Verification system. The enhancements aim to improve the system’s effectiveness, efficiency and customer satisfaction. The enhancements are:

  • A Temporary Protected Status (TPS) Auto Extension upgrade which purportedly will make it easier for E-Verify to confirm when employment authorization has been automatically extended for TPS beneficiaries. To learn more about how TPS affects the Form I-9 process, visit I-9 Central.
  • A redesign of the Case Details Page which reduces data fields so that users can print case details on one page. This enhancement was implemented in response to a suggestion submitted through the E-Verify Listens website, and aimed at reducing user printing costs.
  • Further Action Notices and Tentative Nonconfirmation (TNC) emails have been updated to now include the my E-Verify Case Tracker The myE-Verify® Case Tracker enables employees to check the status of their own E-Verify case during the TNC process.

Additionally, USCIS has announced that on January 1, 2016, E-Verify must dispose of transaction records that are over ten years old (i.e. those dated on or before December 31, 2005). E-Verify employers have until December 31, 2015, to download case data from the new “Historic Records Report” if they want to retain transaction data that is more than ten years old. For more information and guidance on downloading the Historic Records Report, see the E-Verify Records Retention and Disposal Fact Sheet and Instructions to Download Historic Records Reports in E-Verify.

 

E-Verify Logo Licensed under Public Domain via Wikipedia

SHRM-SWFL-ver1-finalI am very excited to announce that Elaine McArthur, the Outreach and Training Manager for the U.S. Equal Employment Opportunity Commission (EEOC), is speaking at the SHRM SWFL luncheon next week. This is an excellent opportunity for HR professionals, supervisors, and/or business owners to learn straight from the EEOC – the agency charged with enforcing workplace discrimination and harassment laws. Ms. McArthur will provide attendees with important updates on recent development and guidance from the EEOC, and will be available to answer questions from the audience.

The meeting is Wednesday, November 4, 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: https://shrmswfl.wildapricot.org/event-2023961. I hope to see you there!

Suarez low resThe Immigration and Nationality Act requires employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations. Under the Act, employers are required by law to maintain for inspection original Forms I-9 for all current employees and certain former employees. Immigration and Customs Enforcement (ICE) agents or auditors enforce compliance via inspections of employers’ Forms I-9. Employers may receive a substantial monetary fine for all substantive and uncorrected technical violations. Evidence obtained through I-9 inspections can also be used to establish that an employer knowingly hired or continued to employ unauthorized workers, potentially subjecting the employer to additional fines, debarment from participation in future federal contracts or from receiving other government benefits, and in certain situations criminal prosecution. I-9 work site enforcement inspections have been on the rise, almost tripling in frequency since 2009.

On the other hand, employers wanting to avoid fines related to I-9 errors often end up going beyond the required process resulting in complaints of discrimination to the U.S. Department of Justice (DOJ) which investigates immigration-related unfair employment practices. DOJ settlements or lawsuits may result in civil penalties assessed on the employer, back pay awards for discrimination victims, hiring orders and/or the requirement that an employer end discriminatory practices and ensure compliance with the anti-discrimination provision.

During the November 17 Southwest Florida C-Suite Summit, I will make sense of the often conflicting requirements associated with completion, maintenance and storage of Forms I-9 and will provide strategies for maintaining compliance while avoiding charges of discrimination. We hope you can join us!  Click here to register or here to view the seminar brochure.

 

10-12-2015 3-48-06 PMWhether you have 10 or 10,000 employees, running a business can be a challenge. Making decisions based on strategic reasoning is critical to the success and longevity of any company. How can members of the c-suite, as well as the small business owner, gain helpful insight into the boardroom and, at the same time, try and avoid the courtroom?

We cordially invite you and your top-level managers to join members of Henderson Franklin’s legal team on Tuesday, November 17, 2015 as they present the Southwest Florida C-Suite Summit at Sanibel Harbour Marriott Resort & Spa. Topics and speakers include:

The Recipe for Business Longevity presented by Attorneys Guy Whitesman (Chair, Business and Tax Department), Eric Gurgold (Chair, Estate Planning and Administration Department) and Mark Nieds (Intellectual Property Group). They will outline proven techniques and best practices to preserve, protect, and perpetuate your business. One size does not fit all. The panel will explore avenues to successful business perpetuation, liquidity events and the preservation of wealth.

The Comeback Kid: Southwest Florida’s Ongoing Economic Recovery. Attorneys Denis Noah (Chairman of the Horizon Council) and Russell Schropp (Horizon Council Task Force Chair) will provide a look at the state of Southwest Florida’s economic recovery – from a lawyer’s perspective! Continue Reading Registration is Open — Southwest Florida C-Suite Summit