By: Linda Pisani, Esq. Partner/Attorney Riggins Pisani, PA
Long before I sought out to become a lawyer, I heard that the practice of law was an honorable profession. Like most things, there are always exceptions. As lawyers we strive in our practice to convince the judge, the lawmakers and other governing bodies to not allow an exception to swallow a rule. But somehow, we as lawyers have allowed the exception of ruthless lawyers to gulp up and choke down the rule that lawyers are honorable.
On September 12, 2011, the Supreme Court of Florida, recognizing the “incivility among members of the legal profession” added the following proviso to our Oath of Admission:
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications: This is a celebrated step in instructing the past two years of new lawyers that”fairness, integrity and civility” are expected in their practice of law. However, lawyers who currently stand in the place of mentors, counselors and teachers of these new lawyers have decades of successful legal practice where “fairness, integrity and civility” has little to no place in their practice. Many lawyers have first-hand experience of opposing counsel winning an argument without fairness, getting the upper hand in negotiations without integrity, or generally intimidating an opponent to advance a client’s position without any civility at all. The lawyers who have done this know who they are. And even if they do not realize they are part of the problem, the rest of us do.
But this is not a forum for showcasing unprofessional and unscrupulous lawyers and their bad deeds. Truly, these lawyers get enough attention. I, for one, deal with these types of lawyers weekly, if not daily, in my practice and find it exhausting and infuriating. Instead, the purpose of this forum is to focus on the new exception – the attorney who is fair – the
attorney with integrity – the attorney who is civil.
A great example of such an attorney went viral about a year ago. While not a Florida attorney, much can be learned from Christy Susman from Louisville, Kentucky and her incredibly civil “cease and desist” letter on behalf of Jack Daniels. The act of sending a polite letter, while not
monumental in the greater scheme of things, drives home the point that even a small thing can have a significant impact on the perception of a lawyer. The ABA article showcasing Ms. Susman’s letter is as follows: CEASE& DESIST LETTER
So there it is. . .I am on the lookout for those attorneys that we all should strive to be like and from whom we should learn how to be better lawyers. I am on the lookout for positive and inspirational attorneys who are responsible for kind letters, respectful tutelage, authentic collaboration, honesty and professionalism.
Qualifying employers need to know that the required notice under Affordable Care Act has been delayed. The Department of Labor has recently announced that the notice
requirement under Section 18B of the Fair Labor Standards Act (FLSA), as added
by the Affordable Care Act (“ACA”), will be postponed. Originally, the notice
requirement called for employers to inform employees about the availability of
health care exchanges by March 1, 2013.
Section 18B of the Fair Labor Standards Act (FLSA), as added by
section 1512 of the Affordable Care Act, generally provides that, in
accordance with regulations promulgated by the Secretary of Labor, an
applicable employer must provide each employee at the time of hiring (or
with respect to current employees, not later than March 1, 2013), a
visit RigginsLawfirm.com for more information or contact our office at 352-433-2400
Danialle Riggins, Esq.
Riggins Pisani, PA
Florida’s minimum wage will increase from $7.67 per hour to $7.79 per hour effective January 1, 2013.
A voter-approved constitutional amendment established a Florida minimum
wage and provided for an annual adjustment to reflect increases in
consumer prices (inflation). The annual calculation is based on the
percentage increase in the federal Consumer Price Index for Urban Wage
Earners and Clerical Workers in the South Region.
The minimum wage for tipped employees will also increase on January 1,
2013. Tipped employees must earn at least $4.77 per hour in direct
wages, up from $4.65 in 2012. If the combination of the employee’s wages
and tips is less than $7.79 per hour in 2013, employers must make up
Employers found to have intentionally violated the state’s minimum wage
requirements may be subject to a fine of $1,000 per violation.
employers should ensure that employees are paid at least $7.79 per hour
by January 1, 2013 and that the updated Florida minimum wage notice is
Contact Riggins Law Firm for more information about the changes. 352-433-2400.
In 2007, a Florida law called “Keeping Children Safe Act” was enacted to of course keep children safe from sexual abuse- real or potential. However, the law was written so vague and broad that gave the Department of Children and Families such an easy card to play on any adult that might have had sexual allegations against him/her. DCF would use this law even if the charges were dropped, unfounded, or even dismissed by a court. However, a ruling was just released that a “trial court departed from essential requirements of law in entering order under
Keeping Children Safe Act that prohibits a grandfather from contact with his
two-year-old grandson on ground that the grandfather was convicted of misdemeanor molestation
of his ten-year-old daughter more than twenty years earlier when he was still
abusing drugs and alcohol. However now, where this child has been living with his grandparents
since he was five months old because his parents were abusing drugs, and
the grandfather has been drug-free and sober for more than twenty years. Here the grandparents filed a private termination of parental rights petition and
subsequently filed private dependency petition, grandparents are parties who
have standing to challenge order. The Order at issue held that it required that grandparents live
apart if they desire for grandmother to retain temporary custody of grandchild
results in injury that cannot be remedied on postjudgment appeal — Keeping
Children Safe Act applies only to sexually abused or exploited child, and does
not apply to child who has never been sexually abused.
While the facts are not pretty, this child knows his grandfather. The grandfather’s past incident was over twenty years ago, should not stop and break a family, if the family has forgiven him.
Thousands of people starting planning their new years in December. Filing for bankruptcy is on hundreds of lists. If you are considering filing for a discharge, there are a few things that you need to consider during the holidays.
So many caregivers are underpaid due to exceptions and loopholes that permit employer to pay under minimum wage. Hopefully, those days are over.
“The White House announced that the U.S.
Department of Labor’s Wage and Hour Division intends to publish a Notice of Proposed Rulemaking that would provide minimum
wage and overtime protections for nearly two million workers who provide
in-home care services for the elderly and infirm. The proposal will
revise the companionship and live-in worker regulations under the Fair Labor
Standards Act to more clearly define the tasks that may be performed by an
exempt companion, and to limit the companionship exemption to companions employed
only by the family or household using the services. In addition, the Department
proposes that third party employers, such as in-home care staffing agencies,
could not claim the companionship exemption or the overtime exemption for
live-in domestic workers, even if the employee is jointly employed by the third
party and the family or household.”
Great news has been released for working Floridians. The
minimum wage in Florida will increase from $7.31 per hour to $7.67 per
hour effective January 1, 2012. The minimum wage for tipped employees
will also increase on January 1, 2012 to $4.65 per hour.
voter-approved constitutional amendment established a Florida minimum
wage and provided for an annual adjustment to reflect increases in
consumer prices (inflation). The annual calculation is based on the
percentage increase in the federal Consumer Price Index for Urban Wage
Earners and Clerical Workers in the South Region for the 12-month period
prior to September 1, 2011.
This the second announcement of an increase for Florida’s minimum wage in 2011.
Employers especially need to take notice of the increase since there has been a rise in unpaid wages cases in Florida courts. Failure to pay minimum wage could result in an employer paying the unpaid wages, interest, liquidated damages (if applicable) attorney’s fees and cost if an employee has to take court action for the violation.
Employers need to review their handbooks, policies and procedures when it comes to training. Several businesses are under the impression that they can require an employee to mandatory training and not have to pay them. The key word is mandatory. Most activities especially training that primarily benefits the employer is considered compensable time and even overtime if the hours require the employee to work over 40 hours in a workweek.
Employers should review the statute to determine if they are violating the Fair Labor Standards Act with their training. Pursuant to the rules: “Attendance at lectures, meetings, training programs and similar
activities need not be counted as working time if the following four
criteria are met:
(a) Attendance is outside of the employee’s regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee’s job; and
(d) The employee does not perform any productive work during such attendance.”29 C.F.R. § 785.27.
The question that has hit the courts lately is when the needed training is because employees lack basic academic skills such as reading, writing, and arithmetic. The FLSA creates an exception designed for this type of training since it primarily benefits the employee with life skills. Section 7(q) of the FLSA,
provides an exemption from the overtime pay requirements for time spent
by certain employees who are receiving remedial education. It allows
any employer to require that an employee spend up to 10 hours in the
aggregate in any workweek in remedial education without payment of
overtime compensation provided that the employee lacks a high school
diploma or educational attainment at the eighth-grade level; the
remedial education is designed to provide reading and other basic skills
at an eighth-grade level or below, or to fulfill the requirements for a
high school diploma or General Educational Development (GED)
certificate; and the remedial education does not include job-specific
training. Employees must be compensated at their regular rate of pay for
the time spent receiving such remedial education. The employer must
maintain a record of the hours that an employee is engaged each workday
and each workweek in receiving remedial education, and the compensation
paid each pay period for the time so engaged, as described in 29 CFR
Employers and trainers should carefully read section 7(q) when designing any type of training to qualify for this section. All should also review the criteria to make sure that it does not interfere with any other overtime and wage laws.
For more details contact Danialle Riggins, Esq. Riggins Law Firm- 352-433-2400. www.RigginsLawFirm.com
While Florida drastically changed the terms and length of unemployment benefits, non-working Floridians will need to depend on the kindness of Congress to grant federal extension as it has done in the past. It appears that this series of debates are not over if they want to but over how much and how and when to pay for the benefits being dispersed. The representatives seem to agree to cover the $44 billion cost of a one-year extension of unemployment benefits. This issue stems from when to address and handle the financial offsets of paying for the benefits. The current program awarding the extensions ends this year. The budget arguments between the parties are that Republicans and Democrats will have to compromise to create on concrete terms — what offsets and when they go into effect.
Previously, Democrats have argued that cost should not be covered because
it negates the economic effects — in this case about $88 billion in
spending, double the amount put into the program. Republicans have been insistent, especially as budgetary issues rose to the forefront, on paying for any extensions.
With two more months left in the year and for the current extension program, approximately 2 million unemployment recipients are depending on the parties to stop playing politics and think about reality.
If you are unemployed or know someone getting unemployment benefits, contact your congressional representative and explain that it is not time to play politics or jockey for campaign slogans. There are people who need to pay bills and have gas money to search for their next job.
Businesses’ dirty little secrets of employment undocumented workers have exposed over and over again. However, in a time when jobs are few, the public has determined that we need new laws against the workers while there have been federal laws against the employers for years. These laws include but civil and criminal punishment. Now Alabama’s controversial immigration law allows employers to break employment contracts with undocumented persons without a forum to pursue any rights that the two persons/entities originally agreed upon. This was the ruling from the 11th Circuit of Appeal on October 14, 2011. “The court let stand a prohibition against state courts enforcing
employment contracts in which the hiring party had “direct or
constructive” knowledge that the employee was in the country unlawfully.
It also upheld a section making it a felony for illegal immigrants to
enter into a “business transaction” in the state, including applying for
a driver’s or business license.” (Penton Media.)
Job hunters beware of the new hurdles that unemployment regulations in Florida have for you. The first hurdle is the determination of “Misconduct.” Prior to the new law signed by Governor Rick Scott in June 2011, misconduct was a hard burden for employers to prove to disqualify employees from receiving unemployment benefits. Starting July 1, 2011, misconduct addressed primarily incidents that occurred in the workplace. With the 2011 law, misconduct now can include activities outside of the workplace. This gives employers a better chance to have former employees disqualified. Neverthesless, the employer still has the burden to prove the incidents that occurred outside of the workplace boundaries.
Another change will be the requirement of direct deposit or the Florida Unemployment Compensation Debit Card.This will be only for applications started after July 1, 2011. This means no more paper checks.
Beginning on August 1, 2011, those receiving Unemployment Compensation
must contact five potential employers every week and document their job
search progress online. Prior, claimants were required to maintain a
record of their job contacts and were subject to being randomly called
about their record. If claimants do not contact the five required
employers, they may not be eligible for their benefits that week. This is a new requirement due to the high discovered volume of benefit fraud. Receiving unemployment and not actively searching for work could determined as fraud.
Starting August 1, 2011, all
applications for Unemployment Claim as well as weekly claims must now
be filed online only through the Agency for Workforce Innovation’s webpage.
Unemployment Compensation extends for 26 weeks. By January 1, 2012,
benefits will be adjusted to a range of 12 to 23 weeks, determined by
the state’s unemployment rate.
The number one type of case being filed in federal court at this time is allegations of violations of unpaid overtime wages. Employees across the United States are checking employers for violating the wage and hour regulations under the Fair Labor Standards Act (FLSA). Most employers are not paying employees for what is considered to be “compensable work” pre- and post-shift work, working off-the-clock, etc.
This application will assist in the investigation and presentation of evidence of employers failing to maintain proper and accurate time records of their employees. This will also help employee/plaintiff attorneys across the country verify and support the unpaid wages violations. DOL is in the process of creating other “apps” that can assist with FLSA compliance for both employees and employers.
FLSA is a federal law that generally requires employers to pay overtimewages of time and a half (1½) to certain employees for work performed in excess of
forty (40) hours per week. This may include employees who work forced to work
“off the clock” to those who were told they are “exempt” but truly are not.Generally, if an employer knows or reasonably should know that covered employees
are working more than forty (40) hours per week, those employees should probably
be paid overtime.After the amendments to FLSA, several employers mistakenly believed that if
their employees were paid a “salary” instead of “by the hour” then the employee was
“exempt;” and therefore, the employees were not entitled to overtime wages. Salary
wages alone will not be enough to deny an employee from overtime compensation.
Consideration has to be given to the specific job duties performed by the employee
and the amount of wages before denial of overtime wages is appropriate.
If your employer has violated the FLSA, you may receive the following:
1. The unpaid overtime plus interest,
2. An additional amount equal to the unpaid overtime (liquidated damages),
3. Costs and your attorney’s fees paid by the employer.
Contact our office today for a consultation or if you have questions.
Danialle Riggins, Esq.
421 South Pine Ave.
Ocala, Fl 34471
May 12, 2011
The legal process works. At least this
time. Circuit Court Judge Terry Lewis ruled this week that the State of
Florida violated Florida’s Constitution by failing to raise the state
minimum wage on January 1 to reflect last year’s increase in the cost of
living. As a result, the rate will be increased from $7.25 to $7.31 an
hour effective June 1st.
This ruling should means that the
minimum wage should be considered and adjusted each year to be in
compliance with Florida’s Constitution. On November 2, 2004, Floridians
voted to amend the Constitution to enact a state minimum wage. Under
the voter-approved amendment, the minimum wage would increase every
January to keep pace with any cost of living increase the past year.
must pay their employees the hourly state minimum wage for all hours
worked in Florida. The definitions of “employer”, “employee”, and
“wage” for state purposes are the same as those established under the
federal Fair Labor Standards Act (FLSA). Employers of “tipped
employees” who meet eligibility requirements for the tip credit under
the FLSA, may count tips actually received as wages under the Florida
minimum wage. However, the employer must pay “tipped employees” a
direct wage. The direct wage is calculated as equal to the minimum wage
($7.31) minus the 2003 tip credit ($3.02), or a direct hourly wage of
$4.29 as of June 1, 2011.
Employees who are not paid
the minimum wage may bring a civil action against the employer or any
person violating Florida’s minimum wage law.
If you have questions or believe your rights have been violated, contact the Riggins Law Firm. 352-433-2400.
-Danialle Riggins, Esq. May 6, 2011
In today’s economy, most people are Following that general The most convenient set of facts for an If a release or severance agreement is a However, If a claimant What Florida laws  FS   Florida Statute §443.041.
familiar with unemployment benefits. Record highs are being reported
monthly of new applicants seeking state unemployment checks or qualifying
for federal extensions of benefits. For those who have not been
educated about Florida’s unemployment compensation rules and rights,
unemployment benefits are given to qualified claimants who have been
involuntarily separated from their employment. In common language,
employees who have been terminated, released, or laid off not due to
resignation or misconduct.
explanation of qualification for unemployment compensation, several
employees have questions in regards to when employers asked them to
resign to reduce staff and overhead cost. Can a force resignation by
equivalent to being laid off? Sometimes. Certain specific facts need to
be present for a claimant to have a chance at getting unemployment
employee is that there is no severance agreement involved and the
employer reports that they are not going to challenge the awarding of
benefits and actually do not. However, the majority of employers aware
of old adage of “the one with the most documentation wins.” An employer
who has documents that the employee voluntarily resigned has the better
chance for victory in most types of litigation especially an unemployment
requirement of the separation the separation terms, the best scenario is if the release
does not include any language that expresses that the employee is
“voluntarily resigning,” or any combination of words similar to that
phrase. An agreement absent of that type of terminology will help
support a claimant’s position that the claimant is entitled to Florida’s
unemployment compensation. It implies that the separation was solely the
result of the employer’s decision and in the employer’s best interest.
if the separation agreement does include voluntary separation, which
mostly likely it will, there are other acts and behaviors performed by
employer for a claimant to be successful in an unemployment appeal. Such
actions included, either verbally or a written expression that the
claimant would still be eligible or entitled to benefits under the state
of Florida’s rules and laws. Also, the employer, by and through its agents, guarantees the employee will get the benefits even if the
employee signs the release. The final act must be that the employee
believed and relied on the promises of the employer that the employee
would qualify for the unemployment compensation even after entering the
separation agreement. Florida courts cases have ruled that under these
circumstances, a claimant acted in good faith based on the acts of the
employer and is entitled to benefits.
does not have those sets of facts and an employee knowingly enter into a
separation agreement, severance agreement, or release which expresses
that the employee voluntarily resigned, the employee does not qualify
for unemployment compensation in Florida. This scenario occurs
frequently in workers’ compensation settlements. The employer/carrier
will have language in the agreement that the injured employee is
resigning as a term of the settlement. Sometimes they will add extra
settlement monies to assure that this term is agreeable.
both employees and employers need to be careful of is waivers of
unemployment benefits. On occasions, employers will terminate an
at-will employee and will attempt to avoid unemployment taxes being
charged to its account. During the notice of termination, the employer
will ask the newly fired employee to sign documents prepared by the
employer. At times, the document will express that the employee has
received all wages. Other documents will be just confirming that the
employee knows why the employee is being terminated. Some documents
actually contain language that states that the employee agrees not
to apply for or is waiving rights to be eligible for unemployment
benefits. In Florida, it is against the law to have any agreement “to
waive, release, or commute” an employee’s rights to unemployment
benefits. Any agreement that does is void. Any employer, officer,
or agent of an employer that has an employee enter an agreement as such
has committed a second degree misdemeanor.
and courts have made it clear that the rules and laws should be
construed to provide benefits to the claimant. However, there are ways
that prevent employees from receiving monthly benefits after separation
from employment. When it comes to unemployment benefits, waivers and
releases are stumbling blocks for both employers and employees. While
in most situations, the waiver and release is a complete
disqualification of benefits. Employees have some leverage and defenses
to gain benefits.
443.036(29)“Misconduct”includes, but is not limited to, the following,
which may not be construed inpari materia with each other (a)Conduct
demonstrating willful or wanton disregard of an employer’s interests and
found to be a deliberate violation or disregard of the standards of
behavior which the employer has a right to expect of his or her employee;
or (b) Carelessness or negligence to a degree or recurrence that
manifests culpability, wrongful intent, or evil design or shows an
intentional and substantial disregard of the employer’s interests or of
the employee’s duties and obligations to his or her employer.
Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247
(Fla. 3d DCA 2003) dictates that, where the employer provides assurance
to its employees considering taking a buyout that acceptance of the
buyout will not affect their eligibility for unemployment benefits, a
claimant who accepts the buyout will have a good claim for UC benefits
because the employer does not have totally clean hands.
In today’s economy, most people are
Following that general
The most convenient set of facts for an
If a release or severance agreement is a
If a claimant
 Florida Statute §443.041.
Florida’s Governor Rick Scott ran his
winning campaign on the slogan, “Let’s get to Work.” Floridians better
listen to those words and obey. Unemployment benefits, no matter what,
will not be the same in Florida in 2011. House Finance and Tax
committee passed a bill in February 2011 that makes significant changes
to Florida’s unemployment compensation system and reduces initial
benefits from 26 weeks to 20. In addition, the bill will deny claimants
benefits for employee “misconduct,” force workers to accept job offers
that pay at least 80 percent of their previous wage, or to accept any
offer that paid as much as their unemployment benefit, once they’ve been
out of work for more than 12 weeks.
There is much uproar about
the reduction of benefits to claimants. Nevertheless, other propose
changes are coming. In May 2011, the Florida Senate is expected to vote
on SB728. This legislation that would make substantial changes to the
state’s unemployment system, but not reduce benefits by six weeks like
the House version. It is unclear which version will be successful or
what the final impact will be on claimant’s benefits and employers’
taxes. But a change is going to come.
The Riggins Law is proud to announce that Congressman Alan Grayson
(Fla. 8th District) will be in Ocala, Florida on November 13, 2009 at
Pi on Broadway - 110 SW Broadway Ocala, Fl 34471 from 5pm to 7pm. Come
out and meet the most controversial congressman.
There will be hors d’oeuvres and cash bar.
The fundraiser is being hosted by Dorothy Sims, Dr. Oregon Hunter, MD, John Moxley, Steve Wingo, and Danialle Riggins.
New applicants/claimants for unemployment benefits in the State of Florida should anticipate receiving benefits in four to six weeks after his/her application if you are entitled to benefits.
Before the economic recession, it would possibly
take about two to three weeks. The factor then was how long did it take for the
employer to reply to certain earning and employment records sought by the Agency
of Workforce Innovation (AWI).
Employers typically have about 10 days to respond with the appropriate forms
and data needed. Employers only have 10 days to raise any viable defenses such
as an employee has been employed less than 90 days with the company.
However, due to the high volume it can take months before a claimant sees the
first benefit check. The best you can do is call or go online with AWI to check
In addition, be careful. Just because you are awarded benefits does not mean
that the employer or the AWI will not come back months later an appeal the
claim. Typically it should be appealed 20 days after the determination is
made. It might have been appealed timely.
Nevertheless, a claimant can still receive a notice of the appeal and to
repay thousands of dollars six to eight months later. So keep any and all
evidence that you are eligible for unemployment for at least one year. Such
evidence is your schedule, last paycheck stub, termination letter, documents
from employer releasing you, phone records from leasing agency, etc.
At this time, it is almost impossible to contact AWI over the phone. The
workers are also overwhlem. The best thing to do is to continue to seek
employment ( you may get a job), keep all records of the application,
appeal,etc., and pray.