The law is illustrated in a 2006 decision from an appeal out of Citrus County, Florida. In that case, an employee was killed when the motorcycle he was riding colliding with an oncoming truck. The employee worked as a helper for a moving company. His job was to help load and unload moving vans with furniture at customer locations. He was not licensed to ride a motorcycle and lacked experience on a bike. On this particular day, the employer brought his motorcycle to the customer’s location. Once the moving vans were unloaded, the employer instructed the employee to ride the motorcycle back to the office despite the employee’s lack of experience or a valid motorcycle endorsement. It was on that return trip to the office that the employee was killed. A jury awarded substantial damages in the wrongful death lawsuit; but the appellate court reversed holding that the statutory immunity provided under the Worker’s Compensation Act precluded recovery.

A 1990 state court decision held that the state law does not protect employees who serve on juries in federal court, although federal law provides similar protection. The federal law provides for a $5,000 penalty for each violation in addition to damages for lost wages and other benefits resulting from any violation of the law. The federal statute also provides for reinstatement of the employee. The federal statute also provides for the recovery of attorneys’ fees and court costs expended by the employee in prosecuting the claim. The employer’s recovery of attorneys’ fees, should the employer prevail, is limited to cases where the judge finds the employee brought the claim in bad faith or the action was vexatious or frivolous.

Contrary to popular belief, you don’t have to be in the fishing or seafood industries to collect; although those industries do get favored treatment. Accountants, attorneys, plumbers, real estate agents; indeed almost any business is eligible. The only businesses excluded are those selling BP fuel, defense contractors, real estate developers building subdivisions, gas companies, insurance companies and certain financial institutions.

How your claim is handled depends upon where your business is located. Those businesses located on the barrier islands are located in Zone A. If your business is a Zone A business, then your loss is determined by comparing three or more months of May through December 2010 to either May through December in 2009; the average of May through December 2009 and 2010; or the average of May through December 2007, 2008 and 2009. The period chosen is the period that provides the most benefit to you. Once the loss is determined, that loss is multiplied by a Risk Transfer Premium to further increase your recovery.

The loss for Zone C and D claims is determined by taking a three or more month period between May to December 2010 and comparing the revenues to the same three months in 2009, the average of 2008 and 2009, or the average of 2007, 2008 and 2009. Again, the period chosen is the period that provides the most benefit to you. For Zone claims we need to demonstrate that gross revenues dropped by 8.5% in 2010. For Zone D, we need to show a 15% drop. For both zones we also need to show at least a 5% increase in revenue between three months in 2010 and the same three months in 2011.
Although I’ve explained the mechanics, you don’t need to worry about the calculations. Simply download or contact me for the evaluation form, take a few minutes to complete the form and return it to me. I can be reached at mmjlove@aol.com, (727) 847-0800 or contact me through the website.

Unfortunately, the corporation was never joined as a party in the divorce action. Under Florida law, a corporation is a legal person separate and apart from the company’s shareholders. Although the judge could establish a value of the corporation for purposes of equitable distribution and could order the transfer of shares from one spouse to the other; the lack of jurisdiction over the corporation precluded the receivership, the appointment of an attorney to represent the corporation, the order setting officer salaries and the order selling corporate assets. Even more unfortunate, the whole divorce has to be retried after the parties each spent about $70,000 in attorney fees.

However, standing can be acquired through an assignment of the mortgage executed prior to the filing of the foreclosure action, through an endorsement on the note itself or attached as an allonge, or through the actual delivery of the note and mortgage coupled with the intent to pass title.

The trial court had dismissed the lawsuit because the assignment of the mortgage postdated the filing of the lawsuit. The appellate court reversed finding that the plaintiff should be afforded an opportunity to prove that it had standing through either an endorsement on the note or through the actual delivery of the note and mortgage.

The celebration of Halloween and the use of Halloween decorations in schools and government offices has been challenged as a celebration associated with the Wicca religion violating the Constitutional separation of church and state. Wicca was made popular in 1954 by Gerald Gardner as a modern survival of an old witchcraft based religion originating in the pre-Christian paganism of Europe.

In a 1994 ruling the Florida First District Court of Appeal ruled that the celebration of Halloween and the display of decorations did not violate the Constitution. The Constitution prohibits federal and state governments from endorsing any particular religion. A parent alleged that the celebration of Halloween in school and the display of Halloween decorations constituted an endorsement of the Wicca religion. The Court disagreed finding that the celebration had a secular, that is a nonreligious purpose enhancing a sense of local community. The school’s recognition of Halloween was simply not an endorsement of the practice of Wicca.

Sexual harassment can, but need not, take the form of sexual advances or other verbal or physical conduct of a sexual nature. It is not necessary that the acts at issue have clear sexual overtones; rather any harassment directed at an employee because of that employee’s gender is sexual harassment. Nevertheless, the offensive conduct must be so severe and pervasive that it has the purpose or effect of unreasonably interfering with the employee’s work performance and of creating an intimidating, hostile, or offensive work environment. It cannot consist of trivial or isolated remarks and incidents, or simply coarse, rude or boorish behavior.

Indiscriminate, even-handed use of offensive language toward both males and females is not alone discriminatorily hostile. Liability requires more than mere utterance of an offensive remark. To determine whether conduct was severe or pervasive, a jury looks to the totality of the circumstances. The types of factors taken into account include the frequency of the offensive conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating; and whether it unreasonably interfered with plaintiff’s job performance.

The law applies only to employees, not independent contractors. The law covers not only termination but also demotions, decreases in pay or rank, suspensions as well as any other adverse employment action against the employee in the terms and conditions of work. The law prohibits the employer from retaliating against an employee who has disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. The employee does not enjoy whistleblower protection, however, unless the employee has, in writing, brought the activity to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity. In other words, an employer is entitled to a reasonable opportunity to correct its mistake.

“Appropriate governmental agency” means any agency of government charged with the enforcement of the laws. Thus, reporting the employer’s failure to pay overtime to the Equal Employment Opportunity Commission, instead of the Department of Labor which is the actual entity responsible for enforcing the Fair Labor Standards Act, would result in the employee not being protected as a whistleblower. Furthermore, reporting violations of company policy which are not violations of law fails to create whistleblower protection.

The law also prohibits retaliation against an employee who has provided information to, or testified before, any appropriate governmental agency conducting an investigation into an alleged violation of a law by the employer. An employer is also prohibited from retaliating against an employee who has refused to engage in illegal activity.
An employer found to have violated the law may be subjected to a judgment for money damages as well as be required to reinstate the employee to his or her prior position. The employer will also be required to pay the employee’s attorneys’ fees and court costs.

In some cases, such terrible litigation could have been avoided through the use of shareholder or partnership agreements. The best time to create such agreements is when the company is formed. At the outset, all of the shareholders are filled with excitement over the new venture and everyone is dedicated towards the same goal. Because start-up companies are usually unprofitable at the outset there are no disputes as to how surplus revenue is to be used. In fact, disputes tend to be few and far between. Often it is when the business begins to become successful that tensions build. A well drafted shareholder agreement, however, can resolve much of the tension since the agreement will provide the mechanism for dispute resolution and the vehicle by which a disgruntled shareholder can disassociate from the business.

Speaking of shareholder disputes and general corporate litigation, Florida law provides several extraordinary remedies which may be employed to protect corporate assets or even wrest corporate control. The first such remedy is a temporary injunction which may be entered by a judge to preserve assets or the current corporate structure while litigation is ongoing. Of course, a temporary injunction is a drastic remedy that should be granted sparingly and only if the moving party has alleged and proven facts entitling him to relief. The purpose of an injunction is to maintain the status quo. The party seeking to impose an injunction, however, will be required to post a bond to protect the business and remaining shareholders from any damages which might arise should the injunction have been improvidently entered.

A second legal tool is the appointment of a receiver. A receiver is a person appointed by the judge to oversee the business and protect the business’ assets. Before a judge can appoint a receiver, the judge must conduct an evidentiary hearing and make specific findings of fact which support the appointment. A receiver may not be appointed because it can do no harm. The shareholder seeking a receiver must meet a substantial burden to demonstrate why a receiver must be appointed. Furthermore, the Court must find that there is no other adequate remedy available which would protect the business and the business assets.

A shareholder seeking the appointment of a receiver will be denied such relief if the shareholder comes before the judge with “unclean hands”. The appointment of a receiver is an extraordinary remedy which is exercised with great caution as the appointment is in derogation of the shareholders’ rights. The appointment of a receiver at the request of a minority shareholder has been held to be an abuse of discretion where the minority shareholder failed to establish fraud or mismanagement amounting to fraud.

First, a creditor may allege that a de facto merger has occurred. A de facto merger occurs when one corporation is absorbed by another, i.e. there is a continuity of the selling corporation evidenced by such things as the same management, personnel, assets, location and stockholders. The finder of fact may look to any other factors reasonably indicative of commonality or of distinctiveness.

Alternatively, a creditor may allege that the purchaser is simply a successor corporation. A continuation of business resulting in liability of the successor corporation for its predecessor’s debts occurs when the successor corporation is merely a continuation or reincarnation of the predecessor corporation under a different name.

The creditor might allege that the sale of assets constituted a fraudulent transfer of assets. A transfer of assets is fraudulent if the seller made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the seller was engaged or was about to engage in a business or a transaction for which the remaining assets of the seller were unreasonably small in relation to the business or transaction; or the seller intended to incur debts beyond the seller’s ability to pay as they became due.