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Congratulations to CSK Tampa Partners’ Brian Rubenstein and Erin Centrone for obtaining a defense verdict in Gadsden County involving a Florida Private Whistleblower Act Claim.

Congratulations to CSK Tampa Partners’ Brian Rubenstein and Erin Centrone for obtaining a defense verdict in a four day jury trial in Gadsden County involving a Florida Private Whistleblower Act Claim.

The Plaintiff, a resident assistant at Defendant’s assisted living facility, claimed that she objected to abuse/neglect of a 92 year old resident at the facility. Plaintiff claimed she was then assaulted and retaliated against by the Executive Director and forced out (constructive discharge). The Plaintiff asked the jury in closing argument to award $95,963.00 in damages. Additionally, if Plaintiff was the prevailing party, Plaintiff’s attorney could collect his attorney’s fees/costs.

The jury deliberated for around four hours before deciding that retaliation occurred. However, there were $0 damages, so there was a defense verdict with no award to Plaintiff. Defendant’s previously served Plaintiff with a proposal for settlement and will move to tax defendant’s attorney’s fees and costs.

How may you benefit from the CARES Act?

On March 27, 2020, President Trump signed into law the “Coronavirus Aid, Relief and Economic Security (“CARES”) Act”. The CARES act provides over $2 Trillion in relief to many groups, including hospitals, airlines, small businesses and individuals.
We have highlighted the provisions of the law that will have an impact on small businesses and individuals.

INDIVIDUAL STIMULUS PAYMENTS
Individuals and married couples will receive checks of $1,200 and $2,400, respectively.
An additional $500 will be added for children under the age of 17.
Phase out begins at $75,000 for individuals (complete phase out at $99,000) and $150,000 for married couples (complete phase out at $198,000).
Although payment is based on the last tax return filed, the amount will be recalculated using the 2020 tax return information filed in 2021.

PAYROLL PROTECTION LOANS
– Maximum Amount of the Loan: The lesser of the average monthly payroll costs incurred by the applicant for payroll during the 1-year period ending on the date the loan is made multiplied by 2.5, or $10,000,000.
– Eligibility: Business must have been in operation prior to February 15, 2020 AND affected by COVID-19.
– Loan Forgiveness: Business shall be eligible for forgiveness of indebtedness in an amount equal to the payroll costs, mortgage interest, rent and certain utility payments during the 8-week period beginning on the loan date (“covered period”).
– Forgiveness Reduction: The amount of loan forgiveness would be proportionately reduced by the reduction, if any, in full-time equivalent employees (“FTE”) for the “covered period” when compared to the same period during 2019. An employer’s decision to reduce a salary by more than 25% from 2019 to 2020 could also reduce the amount of forgiveness
– Forgiveness Application: Businesses seeking loan forgiveness shall submit to the lender that originated the loan, documentation verifying the number of full-time equivalent employees on payroll and pay rates for the “covered period” and the same period during 2019, including (1) payroll tax filings reported to the Internal Revenue Service; (2) State income, payroll, and unemployment insurance filings; and (3) financial statements and cancelled checks verifying qualified payments of mortgage/debt interest, utilities and rent.
– Cancelled Indebtedness: The amount forgiven shall be excluded from gross income for income tax purposes.

TAX CODE CHANGES
– Qualified Improvement “Fix”: Reduces the depreciable life of Qualified Improvement Property (QIP) from 39 years to 15 years retroactive to January 1, 2018.
– Special Rules on Retirement Funds: Ability to withdraw up to $100,000 during 2020 from a retirement plan without incurring a 10% penalty for individuals directly impacted by COVID-19. Amount will still be subject to regular income tax but can be spread over 3 years. Option to repay also exists within 3 years to avoid regular income tax.
– Loans from Retirement Plans: Increased from $50,000 to $100,000 for six months after the CARES act is placed into law.
– Changes to Charitable Contributions: Allows for charitable contribution deductions “above the line” of up to $300 for individuals that use the standard deduction.
– Employer Payment of Employee Student Loans: Employers can pay up to $5,250 of an employee’s student loan obligation on a tax-free basis.
Employer Retention Credit: Credit available to businesses that had to shut down or close its operations due to COVID-19 but continued to pay its employees. The refundable credit is applied to the 6.2% share of Social Security payroll taxes equal to 50% of the employee’s wages for a quarter through December 31, 2020. Maximum credit allowed for all quarters is $5,000 per employee. If business obtained a “Paycheck Protection Loan”, it would not qualify for this credit.
– Delay of Payment of Payroll Taxes and Self-Employment Tax: Deferral of the 6.2% of social security for wages paid in 2020 until December 31, 2021 (50%) and December 31, 2022 (50%). For self-employed individuals, a deferral of 50% of their SE tax for 2020 is available until December 31, 2021 (25%) and December 31, 2022 (25%).
– Changes to Net Operating Rules: Losses from 2018, 2019 and 2020 will be allowed to be carried back for up to five years. Losses incurred in 2019 and 2020 will be permitted to offset 100%. TCJA had previously disallowed all carrybacks related to post-2017 losses
– Temporary (and Retroactive) Removal of Section 461(l): TCJA capped the amount a taxpayer could claim as business losses ($250,000 for single and $500,000 for married filing jointly). The CARES act puts a temporary reprieve on these caps retroactive to 2018. The previously stated caps will continue in 2021.
– Changes to Interest Limitation Rules: The act increases the limit of interest allowed to 50% of “adjusted taxable income” from the 30% imposed under TCJA. Companies will be able to use their 2019 “adjust taxable income” if they have losses during 2020 to calculate their interest limitation. Partnerships will not be able to use the 2019 amounts to calculate their interest limitation but 50% of any suspended interest will become available and fully-deductible in 2020.

Department of Labor Issues Poster Required by Families First Coronavirus Response Act

Cole, Scott & Kissane hopes for those who attended CSK’s “The Employer’s Guide to COVID-19 Issues in the Workplace” webinar that you came away with a better understanding of the Families First Coronavirus Response Act and other employment laws impacted by the Coronavirus. Below is the link to the poster recently published by the Department of Labor, along with answers to FAQ’s regarding the notice requirements of the Families First Coronavirus Response Act.

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

If you have any questions or need any further assistance, please do not hesitate to contact Jessica Anderson at Jessica.Anderson@csklegal.com and (321) 972-0037, or Katie Merwin at Katie.Merwin@csklegal.com and (561) 383-9206.

As always, Cole, Scott & Kissane is here to partner with you and assist you with all your employment law needs.

Employers: Are you prepared for the Coronavirus?

With the continued spread of the Coronavirus (COVID-19), employers should evaluate their preparedness and response to the virus and other workplace issues that may arise. It is important to take steps necessary to ensure business continuity and slow the transmission of the Coronavirus for the health of your employees, your communities, and society as a whole.

Business Continuity Plan: Develop a comprehensive Business Continuity Plan to ensure you will continue to have access to the resources and services you require. These plans should cover any contingency that might interrupt day-to-day business and be updated to account for new challenges caused by the Coronavirus.

Prevention: Cleaning and sanitizing efforts should be increased in the workplace. Employers should remind employees of standard precautions used to avoid the spread of respiratory viruses, such as washing hands with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer; avoiding close contact with people who are sick; disinfecting frequently touched objects and surfaces and staying at home when sick. Employers should also advise employees who are sick should not return to work until they are free of a fever (100.4° or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines. Because the Coronavirus is a pandemic, employers may measure an employee’s body temperature to determine if the employee has a fever. Some employers are also considering allowing employees to work from home to prevent the further potential spread of the virus.

Notification of Illness and Self-Quarantine: Employers may require employees to notify Human Resources if the employee, a member of the employee’s household or a person they have been in close contact with is diagnosed with the virus. Employers must be mindful of privacy laws in disclosing information about an infected employee or others. Employers may also require employees who are ill and/or has been expose to someone with the virus to work from home or take a leave of absence, in accordance with CDC recommendations, to ensure the employee does not show symptoms of the virus. Employers may also require the employee to provide a fitness-for-duty notice to return to work. The leave of absence may be unpaid if the employee is not working during the period of leave. Employers must be mindful of the Family and Medical Leave Act, Americans with Disabilities Act and Florida Civil Rights Act which may be implicated if an employee or family member contracts the virus or is believed to have the virus.

Limiting or Restricting Travel & Working From Home: Employers should consider limiting employees’ non-essential business travel and attendance at non-essential functions or events outside the workplace. Employees who do travel or attend functions or events that may pose a risk of contracting the virus can be required to work from home or take a leave of absence as described above.

Responding to a Positive Diagnosis: If an employee contracts the virus, employers should contact the CDC and local health department but should be mindful of privacy laws. Employers should also ensure the entire workplace is professionally disinfected. Employers may inform other employees of potential signs and symptoms and offer to allow employees to expense their medical test, again while ensuring confidentiality of the diagnosed employee. Employers should also file any workers’ compensation claims necessary if the condition was contracted at work, while traveling for business or in relation to a work-related activity.

This is an unprecedented time for everyone, and the situation is changing daily. Cole, Scott & Kissane is fortunate that we can maintain business operations without business disruption. We are also fortunate to be able to assist the poor and elderly who are a necessary but sometimes forgotten group of people in our community thought to be most at risk with the Coronavirus. Cole, Scott & Kissane has contributed to Florida’s Food Bank network in order to provide them with essential needs. Our hearts and thoughts go out to the people who have been affected by this unprecedented event and we appreciate the healthcare workers, local communities, and governments around the world who are on the front line working to contain the Coronavirus. For more information, please visit: https://www.feedingflorida.org/feeding-florida/florida-food-banks. We will continue to actively monitor the situation and share updates as needed. Please stay safe and thank you for your continued trust in us.

Employers who may have questions or need assistance are encouraged to contact CSK’s Employment and Labor Law Attorneys.

On March 5, 2020, CSK Tampa Partner Dan Shapiro presented a webinar to our client, Assured Partners, discussing the Coronavirus and its implications and risks on long term care. We are all focused during this important time on the Coronavirus. It is important to be informed, aware, and prepared in the weeks to come as to how to handle its potential entry into the workplace, and any effects long term care and our industry. The webinar included insurance and clinical teams and explored best practices and how to protect residents, staff, families, and assets. CSK would be honored to present this webinar to your office, if there is an interest. If you would like more information, please contact Dan at the numbers listed in his profile below.

Department of Labor COVID-19 Guidance on Paid Sick Leave

On April 1, 2020, the Families First Coronavirus Response Act went into effect. It provides paid sick and family leave to employees through December 31, 2020 related to COVID-19. The Act applies to private employers with fewer than 500 employees. The company (not just the location) must have fewer than 500 employees. The Department of Labor has provided Q&A Guidance, which is discussed below. Please note, however, that this guidance is not binding on the courts, meaning there may eventually be a different interpretation of these issues by judges.

What does the FMLA Expansion require?

It expands FMLA, job-protected leave to employees who have been employed for at least 30 calendar days, as opposed to the 12 months ordinarily required for FMLA leave, to care for employee’s child whose school or child care facility has been closed due to the coronavirus. The first ten days of leave can be unpaid, unless the employee chooses to use any accrued vacation leave, personal leave, or medical/sick leave. After the first ten days, the employee must be paid two-thirds of his or her regular rate of pay, with a cap of $200 per day (and $10,000 aggregate).

What does the Paid Sick Leave require?

Employers must provide 80 hours of paid sick leave to full-time employees (an amount equal to the average number of hours they work over a two-week period to part-time employees). The paid sick must be available immediately to employees. All employees, regardless of length of time with the employer, are entitled to paid sick leave.

The rate of pay for the leave is the employee’s regular rate of pay (capped at $511 per day and $5,110 in the aggregate) if leave is for the following reasons:

The employee is subject to a federal, state or local quarantine because of the coronavirus;
The employee must obtain medical care if he or she is experiencing symptoms of coronavirus;
The employee must comply with health care provider recommendations to self-quarantine due to the coronavirus;

The rate of pay for the leave is two-thirds of the employee’s regular rate of pay (capped at $200 per day and $2,000 in the aggregate) if leave is for the following reasons:

The employee must care for an individual who is subject to federal, state or local quarantine or to comply with a health care provider recommendation due to the coronavirus;
The employee must care for the employee’s child whose school or child care facility has been closed due to the coronavirus; and
Any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

The regular rate of pay includes not just their hourly rate of pay, but all remuneration paid to the employee (such as tips, overtime, etc.). It does not include the items listed as excluded from the regular rate of pay in 29 U.S.C. 207(e)) (gifts, rewards for service, PTO or vacation pay, etc.).

Department of Labor Guidance

May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason?
No, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?
No. The FFCRA imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

Is all leave under the FMLA now paid leave?
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

When am I able to telework under the FFCRA?
You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

If my employer closed my worksite before April 1, 2020, can I still get paid sick leave or expanded family and medical leave?
No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the FFCRA’s effective date, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits.

If my employer is open, but furloughs me on or after April 1, 2020, can I receive paid sick leave or expanded family and medical leave?
No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.

If my employer closes my worksite on or after April 1, 2020, but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?
No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.

If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?
No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

CSK Miami Partners’ Richard Adams and Benjamin Esco for recently receiving a favorable result after a 4-day Jury Trial

Congratulations to CSK Miami Partners’ Richard Adams and Benjamin Esco for recently receiving a favorable result after a 4-day Jury Trial in Key West.

Our insured was a commercial tow truck company, whose driver rear-ended the plaintiff’s Volvo station wagon. Plaintiff had stopped at the intersection of US-1 and Roosevelt Boulevard to allow bicyclists to cross in the crosswalk. The accident impact bent the frame of the station wagon, dislodged the radio from the dashboard, broke the transmission, and prevented the doors from opening/closing.

The plaintiff received same-day treatment at the Emergency Room, complaining of head injury, back pain, loss of consciousness, and radiating cervical pain into the extremities. She eventually underwent a 3-level discectomy and fusion surgery to the neck, with additional lumbar fusion/injection therapy recommended in the future.

Plaintiff’s surgeon testified at trial that the injuries are permanent and that the cervical range of motion is forever restricted by 50%. Her surgeon testified that all post accident medical treatment/surgeries/therapy are related to nothing other than the subject accident. Plaintiff had not made a specific medically-documented complaint of neck pain for a dozen years prior to the subject incident. However, she made very serious neck/back complaints thereafter, and she was treated by a dozen physicians/specialists in six different states.

At the close of the evidence, the judge denied the plaintiff’s hard-fought Motion for Directed Verdict on liability issues. The DV Motion was based on Florida’s Rear-End Presumption of Negligence. The Judge thus submitted the liability issues for jury resolution. The jury found the plaintiff 45% responsible for causing the accident.

As to injuries/damages, the jury ruled the plaintiff did not sustain a permanent injury within a reasonable degree of medical probability. As such, the jury awarded only the past/future medical bills.

There were no awardable damages for pain & suffering, per the Threshold Statute.

We have a Post-Trial Motion for Collateral Source Set-off/Reduction.

CSK Successfully Obtains Dismissal Based on Plaintiff’s Failure to Comply with Statutory Requirements

CSK West Palm Beach Partners Rachel Beige and Karly Wannos and Associate Rebecca Hertz obtained a dismissal on behalf of Norwegian Cruise Line in Miami-Dade Circuit Court based on the failure to take appropriate action to substitute a party following the Plaintiff’s death.  The Complaint was originally filed in October 2017 for breach of contract for unpaid sales commissions and unpaid wages pursuant Fla. Stat. § 448.08.  The Plaintiff passed away December 2018 and her estate closed in early January 2020 without any substitution or motion for extension being filed. On the eve of Defendant’s Motion to Dismiss, scheduled to be heard January 21, 2020, Plaintiff’s counsel filed a Motion for Extension of Time to File a Motion for Substitution of Plaintiff.  Plaintiff’s counsel asserted that in March 2019 efforts were made to contact Plaintiff’s emergency contact to locate a personal representative, and it was not until January 2020 that Plaintiff’s counsel followed up and discovered the emergency contact had never communicated his prior messages.  Plaintiff argued that even though this was after the deadline, it should be allowed due to a showing of excusable neglect.  The Court rejected Plaintiff’s argument and dismissed the action for failure to comply with statutory requirements following the death of the Plaintiff.

Progressive American Ins. Co. v. Broward Ins. Recovery Center, LLC, a/a/o Shannon Griffith

Case: Progressive American Ins. Co. v. Broward Ins. Recovery Center, LLC, a/a/o Shannon Griffith
Venue: Seventeenth Judicial Circuit, Appellate Division

Alexandra Valdes of CSK’s Miami office obtained a per curiam Final Order Granting Petition for Writ of Certiorari, which quashed a county court order denying the insurer’s motion to compel appraisal in a windshield litigation action.

Whitfield v. Southern-Owners Insurance Company

Case: Whitfield v. Southern-Owners Insurance Company
Venue: First District Court of Appeal

Scott Cole of CSK’s Miami office obtained a per curiam affirmance of the trial court’s denial of the plaintiff/appellant’s Motion to File Second Amended Complaint to add counts for statutory bad faith pursuant to their previously filed uninsured motorist claim. The defendant/appellee successfully argued that the denial of the Motion was a proper exercise of the trial court’s broad discretion as the defendant would be prejudiced if the amendment were allowed, while the plaintiff suffered no prejudice by the denial of the Motion. The First District Court of Appeal affirmed the decision of the trial court in all respects.

Griffiths v. Del Prado Retail Center, LLC

Case: Griffiths v. Del Prado Retail Center, LLC
Venue: Second District Court of Appeal

Mark D. Tinker of CSK’s Tampa office obtained an affirmance of a defense judgment in a retail wrongful death/negligent security case. An unknown assailant shot and killed the decedent while in the shopping plaza, and the estate appealed claiming that the trial court erred by changing the jury pool after the parties had already exercised challenges, and by allowing a juror familiar with news reports of the incident to remain. The defendant/appellee argued issues of abandonment, invited error, and trial court discretion in order to achieve the affirmance.