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Author: Jimerson Birr

Rescinding Job Offers in At-Will Employments in Florida

February 8, 2011 Professional Services Industry Legal Blog

Today’s labor market can be generally characterized by high job turnover. Nationwide, in November 2010, over four million employment positions were filled and nearly an equal number of employment relationships were severed. Understanding the relationship between employers and their current and prospective employees is very important in a national labor market with a job turnover rate of approximately two percent of the labor force per month. The predominant and default employment arrangement in the United States is “Employment-at-Will. In Florida, an employment agreement that does not provide for a specified duration of employment, in the absence of surrounding facts that could be construed as a durational restriction, is recognized as an agreement to employment at will. See Savannah, F. & W. RY. CO. v. Willet, 31 So. 246, 314 (Fla. 1901). Employment-at-will allows for the termination of employment at any time by either the employer or employee. See e.g. Demarco v. Publix Super Markets, Inc., 360 So. 2d 134, 136 (“The established law is that where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.”)

In a labor market with high job turnover, employers and employees are constantly creating new employment relationships and severing previous employment relationships. When an employee makes a transition from an existing employer to a new employer, they usually give notice to their existing employer and effectively sever the employment relation with their existing employer. The at-will doctrine allows employees the flexibility to do this. The drawback to this flexibility comes when the employee relies on an offer for new employment and then the offer is rescinded by the prospective employer. This situation has received varied treatment across jurisdictions.

This post describes how this situation is treated in Florida courts.

Been Caught Stealing: Expelling or “Kicking Out” Members From Florida Limited Liability Companies When a Member is Diverting Assets

February 3, 2011 Professional Services Industry Legal Blog

Though Florida was one of the first states to enact legislation permitting the organization of a limited liability company (“LLC”), usage of LLCs as a corporate form is still a relatively new thing. With the Florida Limited Liability Company Act of 1999 and the passage of certain taxation legislation, LLCs are a very favorable business organization form for small and mid-sized businesses. Nearly every LLC maintains a separate written or oral operating agreement, which is generally defined as the agreement governing the LLCs business, and member’s financial and managerial rights and duties. LLCs operating without an operating agreement are governed by the state’s default rules contained in the relevant statute and developed through court decisions interpreting those laws. In Florida, the LLC statute is Fla. Stat. Chapter 608.

Often in a small, member-managed LLC, managerial and financial disputes arise among the members regarding business affairs of the company or distribution of company assets. Clients often come to our firm to analyze and litigate issues regarding one or more fellow members who have committed breaches of the operating agreement, common law or statutory duties or in some cases have gone as far as violating criminal laws. In analyzing the aggrieved member’s rights against these rogue members practitioners must first turn to the LLC operating agreement before utilizing Fla. Stat. §608 and case law to fill in the gaps. As a case study for expulsion, we will analyze a scenario where a member is diverting company assets.

Domesticating Florida Judgments in Georgia, Part I

December 30, 2010 Professional Services Industry Legal Blog

By: Emily C. Williams, Esq.

Due to the transient nature of individuals in today’s society, attorneys are frequently being employed to collect judgments that were obtained elsewhere. This is especially true for multi-licensed attorneys who practice in a state in close proximity to the state line of another. For the purposes of this discussion, I will analyze the procedural steps necessary to enforce a Florida Judgment in Georgia, and explain the difference in enforcing a foreign judgment under the Uniform Enforcement of Foreign Judgments Law and through domestication.

The Life Cycle of Judgment Liens and How to Extend Them

December 7, 2010 Banking & Financial Services Industry Legal Blog

By: Harry M. Wilson, IV, Esq. and James D. Stone, III

While obtaining a judgment against a debtor that owes you money is an important victory, it is often not the final battle one fights against the debtor. Just as there are time limitations on your ability to file an action against a debtor, there are also time limitations to enforce a money judgment in Florida. While the general rule is that the life of a money judgment is 20 years in the state of Florida it is important to know the procedures for using the full 20 years.

Protection From False Claims Act in Construction

November 10, 2010 Construction Industry Legal Blog

By Harry M. Wilson IV, Esq. and James D. Stone III

The False Claims Act (FCA) dates back to 1863 and was originally intended to fight fraud by defense contractors. The large majority of the cases filed over the past few years have involved medical and pharmaceutical claims. However, with the recent changes in the FCA lowering the standards needed to file suit and the increase in federally funded spending on construction projects there is a strong possibility of increased FCA claims in the construction industry by current and former disgruntled employees. With the increased possibility for these FCA claims the best way to protect your business is to first understand the basics of the FCA and then to establish a good compliance system.

Understanding the Basics of Equitable Estoppel and Using Equitable Estoppel Principles to Create Insurance Coverage in Florida

October 26, 2010 Insurance Industry Legal Blog

Most courts nationwide continue to adhere to the majority position asserted by the court in Republic Ins. Co. v. Silverton Elevators, Inc., 493 S.W.2d 748 (Tex. 1973), that estoppel may not be employed to expand coverage not otherwise provided in an insurance contract. See, e.g., Laidlow Environmental Services, Inc. v. Aetna Casualty & Surety Co., 524 S.E.2d 847, 852 (S.C. Ct. App. 1999) (estoppel and waiver cannot create coverage that does not otherwise exist); Martin v. United States Fidelity and Guaranty Co., 996 S.W.2d 506, 511 (Mo. 1999) (estoppel cannot be used to create coverage); Shepard v. Keystone Insurance Co., 743 F. Supp. 429, 433 (D. Md. 1990) (under Maryland law, “waiver and estoppel cannot be used to create liability where none previously existed, or to extend coverage beyond what was originally intended”); Fli-Back Co., Inc. v. Philadelphia Manufacturers Mutual Insurance Co., 502 F.2d 214, 216 (4th Cir. 1974) (same under North Carolina law).

Florida has joined the minority position creating or allowing coverage for an insured based on estoppel. Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla. 1987).

Using Florida’s Agricultural Bond Laws as a Collection Tool

October 25, 2010 Banking & Financial Services Industry Legal Blog, Insurance Industry Legal Blog, Manufacturing & Distribution Industry Legal Blog

As our firm represents many materials suppliers and site work contractors/subcontractors, we are often presented with payment issues that require us to pursue unconventional avenues of recovery to obtain payment. One area in which we have had a good success is through making claims on Agricultural Bonds through the Florida Department of Agriculture. According to Florida law, any person who is engaged within the state in the business of buying, receiving, soliciting, handling, or negotiating agricultural products from or for Florida producers, or their agents, must be licensed and bonded. The Bureau of Agricultural Dealer’s Licenses is responsible for the licensing of dealers in agricultural products. Per the Department of Agriculture, “Florida License and Bond Law is intended to facilitate the marketing of Florida agricultural products by encouraging a better understanding between buyers and sellers and by providing a marketplace that is relatively free of unfair trading practices and defaults. The purpose of the law is to help assure that the producers of products covered by the law receive proper accounting and payment for their products.” If you do business with nurseries, landscaping companies, or virtually anyone who deals in green goods and you like to get paid the money you are rightfully owed, this post should be required reading.

Independent Contractor vs. Employee – What is Your Status?

October 11, 2010 Professional Services Industry Legal Blog

By: Emily C. Williams, Esq.

Employers and employees, alike, are often unaware of the repercussions associated with how they are characterized in the workplace. When two persons agree that one will perform work for the other, the parties should be concerned with the legal significance of whether or not the arrangement creates an employer/employee relationship or an independent contractor relationship. Whether one arrangement exists can result in the following consequences: tax obligations — withholding, social security, and sales, prevailing wage rate obligations, indemnity and liability obligations for wrongful activities, insurance obligations and coverage issues and licensing. Furthermore, an employer is not held liable for the negligent acts of its independent contractors, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil. An employer can also be held liable for the negligent selection of an independent contractor.

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