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05/12/11
Clocking In on Your Smartphone
Filed under: General
Posted by: RPLaw Firm @ 4:03 pm

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. 

Well employees can now start tracking all hours of work performed for their employers on their smartphones or iphones by using  an app.  There is now an app for everything, even one that helps you when lawsuits.  The Department of Labor recently announced that is “to help employees independently track the hours they work and determine the wages they are owed.”

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

352-433-2400

May 12, 2011

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05/06/11
New Minimum Wage for 2011- A Sign of Hope.
Filed under: General
Posted by: RPLaw Firm @ 2:58 pm

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.

Employers
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

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Waiver and Release - On Florida’s Unemployment Benefits
Filed under: General
Posted by: RPLaw Firm @ 2:56 pm

In today’s economy, most people are
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.[1]

 

Following that general
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
benefits. 

 

The most convenient set of facts for an
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
appeal hearing.

 

If a release or severance agreement is a
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. 

 

However,
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.[2]

 

If a claimant
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.

 

What
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.[3]   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.

 

Florida laws
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.

 

 

[1] FS
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.

 

[2]
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.

[3] Florida Statute §443.041.

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Proposed Changes to Florida’s Unemployment Benefits
Filed under: General
Posted by: RPLaw Firm @ 2:54 pm

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.

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