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Archive for the ‘Employment Law Blog – FL’ Category

Florida Governor Signs Employment Eligibility Verification Bill into Law

Posted on: July 2nd, 2020

By: Melissa Santalone

Florida Governor Ron DeSantis has signed into law a bill on verification of employees’ legal authorization to work in the U.S. that is a far cry from the original bill proposed at the beginning of the legislative discussion. As we discussed here, the initial bill would have required all Florida employers to register with and use the E-Verify system, a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user with data held by DHS and the Social Security Administration, to verify the employment eligibility of each new employee. It would also have imposed suspension of business licensure upon the first violation and allowed a private right of action by employees that are U.S. citizens or resident aliens that were discharged by the employer while the employer knowingly employs an “unauthorized alien” at the same job site or in the same job classification elsewhere in Florida. However, this initial version was stripped of these and other provisions through the legislative process, making compliance for Florida private employers much easier.

In the end, the bill signed by Gov. DeSantis will require, beginning January 1, 2021, all Florida public employers, contractors and subcontractors to use the E-Verify system to verify the employment eligibility of all their employees. These public employers, contractors, and subcontractors are prohibited from entering into contracts with another entity unless each party uses the E-Verify system. Subcontractors are required to provide contractors with whom they enter into contracts with an affidavit providing that the subcontractors do not employ, contract with, or subcontract with “unauthorized aliens.” 

In contrast, beginning January 1, 2021, private employers are only required to verify new employees’ and, upon renewal or extension of their contracts, contract employees’ eligibility either by requiring the employees to fill out standard I-9 forms and providing the documentation required by the form, which is already required by federal law, or by using E-Verify. The law provides that private employers may not be held civilly or criminally liable for hiring or continuing to employ an “unauthorized alien” for whom the information collected for verification of employment eligibility indicates the person’s work authorization status is not that of an “unauthorized alien.” Compliance with the statute gives rise to a rebuttable presumption that private employers did not knowingly employ an “unauthorized alien.”  In terms of enforcement, private employers must retain verification documentation for three years and must produce such documentation to the Florida Department of Law Enforcement, the Florida Attorney General, a state attorney, or a statewide prosecutor upon request. If a private employer is found to have violated this statute, it must produce an affidavit attesting that it will comply with the statute going forward, has terminated all “unauthorized aliens” in its employ, and will not knowingly employ “unauthorized aliens.” If the private employer fails to provide such an affidavit within 30 days, it will be subject to suspension of its business licensure until it provides the affidavit. If a private employer is found to have violated the law three times within three years, its business licenses may be permanently revoked. 

If you have questions about Florida law surrounding the use of E-Verify or other labor and employment-related questions, please contact Melissa A. Santalone at [email protected]

U.S. Department of Education Announces Temporary Halting of Wage Garnishments

Posted on: March 30th, 2020

By: Jeffrey A. Hord

On March 25, 2020, the Department of Education (DOE) announced that it will temporarily halt seizing wages and/or withholding tax refunds from borrowers who have defaulted on their student loans held by the federal government.  As part of the Trump Administration’s multifaceted response to the COVID-19 national emergency, the DOE has suspended any wage garnishments and stopped all requests to the U.S. Treasury Department to withhold money from defaulted borrowers.  The directive is retroactive to March 13, 2020, and will last for a period of at least sixty (60) days.  The DOE also instructed private collection agencies to stop all “proactive collection activities,” including making phone calls to borrowers and issuing collection letters and billing statements.

Employers who are responsible for properly processing wage garnishments should take note of this announcement.  In its official press release, the DOE emphasized that, while borrowers whose paychecks were being garnished will now be entitled to their full wage, it is the responsibility of the employer to make the necessary change to the employee’s paycheck:

“The Department must rely on employers to make the change to borrowers’ paychecks, so it will monitor employers’ compliance with the request to stop wage garnishment. Borrowers whose wages continue to be garnished after March 13 should contact their employers’ human resources department.”

While the directive unambiguously prohibits “new” wage garnishments, Social Security offsets, and collection actions, the DOE’s announcement leaves some room for doubt as to whether garnishments and offsets put into effect prior to March 13, 2020 are similarly impacted.  However, in a contemporaneous set of FAQ published on the DOE’s official Federal Student Aid website, the Department seemed to clearly signal its intent:

If your wages continue to be garnished after the president’s March 13, 2020, announcement, you should contact your employer’s human resources department. If DOE receives funds from your paycheck that should have been stopped as a result of the March 13 announcement, we will refund your garnished wages.

The good news for employers who make payments towards their employees’ outstanding student loans as a benefit of employment is that they can now do so tax-free until January 1, 2021, for up to $5,250 annually.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  On April 2, we will discuss the impact of Coronavirus on law enforcement.  Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Florida Legislature is One Among Several Pushing for Mandatory Use of “E-Verify”

Posted on: November 8th, 2019

By: Melissa Santalone

A Florida State Senator has filed a bill that would require, beginning January 1, 2021, all Florida businesses to use the “E-Verify” system to check whether each newly hired employee is authorized to work in the U.S.  The “E-Verify” system is a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user, presumably first obtained from the new employee, with data held by DHS and the Social Security Administration.  The bill does not limit its application to businesses of a certain size and, therefore, even the smallest of Florida businesses would be required to comply.  Any businesses failing to register with “E-Verify” after the effective date of the bill, if signed into law, would be subject to suspension of all or any state licenses they hold.  If an employer is found to have committed a second violation of knowingly employing an “unauthorized alien” within a 2-year period, the bill would subject the employer to a 30-day suspension of its business licenses.  Governor Ron DeSantis has previously come out in favor of mandatory use of “E-Verify” and would likely sign the bill into law if it were to pass both houses of the Legislature.

By introducing this bill, the Florida legislature joins the legislatures of other states, including Pennsylvania, and the United States Congress in considering similar mandatory use of “E-Verify” in 2019.  Earlier this year, legislators in North Carolina proposed a bill that would increase the number of businesses subject to its mandatory use of “E-Verify” by including businesses with 5 or more employees, down from 25 or more.  Currently 9 states require all or most employers to use “E-Verify” and numerous others require some employers to use it.

Interestingly, the Florida bill would also create a private cause of action against an employer by an employee who is a U.S. citizen or resident alien that is discharged by the employer while the employer knowingly employs an “unauthorized alien” at the same job site or in the same job classification elsewhere in Florida.  In such an action, the employee could be entitled to reinstatement or the recovery of back pay, court costs, and attorney’s fees.

We will be watching to see if this bill becomes law.  If you have questions about Florida law surrounding the use of “E-Verify” or other labor and employment-related questions, please contact Melissa A. Santalone at [email protected].  If you need assistance in other states where Freeman Mathis & Gary can assist you, please contact a member of our Labor & Employment practice group.

Florida Employment Law and The Use of Consistent Terminology

Posted on: January 17th, 2019

By: Michael Kouskoutis

Florida’s First DCA recently reversed summary judgment in favor of Florida A&M University (FAMU) in a contract dispute with the school’s former head football and basketball coaches.

The coaches both had 4-year contracts with the University, each with a specific end date and permitting early termination only in specific circumstances.  Well before their contractual end dates, both coaches received 60 days’ notice of termination, with neither coach having committed any of the terminable offenses listed in the contract. The coaches filed suit, demanding (among others) payment on the remainder of the contracts. On FAMU’s motion for summary judgment, the trial court agreed with the University, that the terminations were justified by the University’s regulations, which permit employee termination upon 60 days’ notice.

On appeal, the First DCA emphasized that FAMU did not use consistent terminology with respect to termination in its regulations and employment contracts, leading the Court to conclude that an ambiguity exists since different meanings may have been intended. Further, because the Court determined that the termination provisions were ambiguous, it also reversed summary judgment on the coaches’ claims for fraudulent inducement and negligent misrepresentation.

As this case awaits trial, employers should be mindful of the terminology used among its employment and regulatory documentation.  If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

New Florida Law Change Allows Property Owners to Challenge Lapsed Covenants

Posted on: November 30th, 2018

By: Melissa Santalone

A recently enacted section of the Florida Statutes allows property owners to seek court intervention to prevent their community associations from revitalizing lapsed covenants and restrictions as to their parcels. Property owners can commence an action for judicial determination that any revitalization of those covenants or restrictions as to the property owners’ parcels would “unconstitutionally deprive” the property owners of rights or property. Fla. Stat. § 712.12(3), enacted in March and effective as of October 1, 2018, is a new section of the Marketable Record Title Act (MRTA) and allows homeowners to bring these actions until October 1, 2019. Property owners that take advantage of this new right of action can only challenge covenants and restrictions that community associations have allowed to lapse on or before October 1, 2018. If such a property owner is able to obtain a court order or judgment under this section declaring that revitalization of the covenant or restriction would unconstitutionally deprive him or her of rights or property and the covenant or restriction is revived, the covenant or restriction may not alter the rights of the property owner without his or her consent.

This change in the law could result in fascinating litigation in the Florida courts. Under MRTA, community associations’ covenants and restrictions, if not properly preserved or revitalized, are extinguished after 30 years. Therefore, under the new addition to MRTA, it would be possible for a homeowner in a community that has inadvertently let its covenants lapse to go to court and ask that his property not be subject to any community assessments, even if such a covenant imposing them is revived. The end result could leave community associations with fewer resources to manage the same shared property.

With this change in the law, Florida community associations now more than ever need to pay close attention to the age of their covenants and restrictions. Preservation of covenants and restrictions prior to lapse is a relatively simple process in Florida, while the process of revitalization after lapse is more complicated and requires approval from the Florida Department of Economic Opportunity. It is important to note that the lapse of community covenants and restrictions happens in other jurisdictions as well, like in California and for certain communities in Georgia.

Attorneys in FMG’s HOA National Practice Section can advise you as to whether and how covenants and restrictions can expire, preservation, and revitalization in your area.  For more information, contact Melissa Santalone at [email protected].