The department released an important clarification/interpretation of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing in loco parentis to a child. According to the clarification, the benefits of FMLA apply even if the employee is not a biological parent as long as they are in loco parentis. This means that even if they are not an adopted child, FMLA applies.

Read the entire letter here.

A two-day sting has led to the closure of 70 Florida businesses — including 24 in South Florida — because of violations of the state’s workers’ compensation laws.

Random site visits by the state Department of Financial Services found the companies failed to provide workers’ compensation insurance for their employees. State law says construction-related companies must have workers’ compensation coverage if they have one or more employee, including the owner. Other businesses must have the coverage if they employ four or more employees, excluding business owners.

Most of the 24 were in Miami-Dade County:

Aldo’s Pool, Americans Builders and Construction, Dianza Commercial Dry Wall System, Authentic Construction, Professional Carpentry USA, GA Stone, No Drip Plumbing, JJJ Finishing Master, Built Top Building Services, Superior Wood Floor, Unlimited Ceiling Corp., Reinolds H. Castro Inc., Laura’s Management, J.R.F. Florida Painting Corp., ABC Seamless Rain Gutters, Jose Ber Tile, Zepol, Allen R. Greenwald, Mercado Enterprise, Articpolo Inc., Enloe Carpentry.

The USF Small Business Development Center, in partnership with the Florida Procurement Technical Assistance Center, will bring local, federal and state governmental agencies and major corporations together to network, educate, counsel and ultimately, contract, with small business firms.

We feel confident that the relationships we build during this conference will be of great benefit to our clients.

SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:

‘‘(r)(1) An employer shall provide—

‘‘(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

‘‘(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

‘‘(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

‘‘(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s busineH. R. 3590—460

‘‘(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.’’

Mr. Davis will present HR: The “Insurance Policy” against expensive litigation and lower profits. His presentation is scheduled to be held on Monday, August 30, 2010 at 1:30 pm – 2:30 pm.

Mr. Chanfrau will present OSHA in a Changing World: New Compliance Directives You Need to Know. His presentation is scheduled to be held on Tuesday, August 31, 2010 at 10:30 am – 11:30 am.

Both are honored to have been called upon to play an important role in the learning experience of the attendees and to help in serving their educational needs.

In particular, we focused our inquiries on two sites: LinkedIn and Avvo. LinkedIn attracts users from virtually all professions and industries, while Avvo is exclusively for lawyers; however, the two use a similar “recommendations” feature to bolster the profiles of the users. Avvo even goes so far as to tie the rating system it uses for each profile in part to the number and tone of “peer recommendations” from other lawyers.

However, since anyone can access the profiles of lawyers on either LinkedIn or Avvo, we were concerned in particular with two of the guidelines listed in the Rules of Professional Conduct of The Florida Bar:.

• Does the advertisement contain any references to past results? Rule 4-7.2(c)(1)(F).
• Does the website contain any statements that describe or characterize the quality of the lawyer’s services?  Rule 4-7.2(c)(2).

Looking at some of the recommendations and testimonials posted on various lawyer profiles on both of these sites – whether from clients or professional peers – we saw many that contained “references to past results” and even more that most definitely did “describe or characterize the character of the lawyer’s services.”

We called and spoke at length with an advisor on ethics in advertising at the Florida Bar. According to our source:

“The Board of Governors has said if the attorney participates in the Avvo rating service, and the attorney provides email addresses of clients [or professional peers] and asks clients to rate them, then the attorney could get in trouble for that. But, if these people are going to the site and posting things and attorney has not controlled what they wrote [or even the fact that they wrote] then the attorney will not be held responsible.”

Similar to LinkedIn, Avvo has a function whereby a member attorney can send a mass email to clients, asking them to “please rate me.” Avvo also has the additional feature of allowing the member lawyer to contact other lawyers specifically, asking for the same favor (Note: It is only these peer-to-peer recommendations that affect the member attorney’s “rating” on Avvo).

However, on both LinkedIn and Avvo, a client, business associate, or – in Avvo’s case – another attorney, can also opt to make a recommendation, using the sites’ recommendation feature, without any solicitation or request to do so from the attorney/member.

The distinction, according to the Florida Bar, lies in whether or not the attorney did the former scenario – requested the recommendation – or was a passive participant in the latter; i.e. someone took it upon him or herself to write the recommendation.

Lawyers who – whether on LinkedIn, Avvo, or any other similar profile-posting site, send any traceable request saying “please rate me” will be held responsible for all comments that are made on the site as a result of that request.

As the Third District Court of Appeals in Florida (which includes Miami, FL) ruled,  in order to prevail on a retaliatory discharge claim under section 440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove:

(1) he engaged in a statutorily protected activity;

(2) an adverse employment action occurred; and

(3) the adverse action was causally related to the employee’s protected activity.

In this case the Court concluded that “While Ortega may not have been fired “en haec verba,” there was sufficient evidence of  retaliation sufficient to overcome a summary judgment where there were contradictory statements as to why the plaintiff was discharged particularly where the discharge ocurred close to the time of the injury.

One possible answer to this problem is for the employer to adopt a clear policy authorizing the termination of employees who are unable to work for a period of time and apply the policy consistently without the mixed messages that occurred in this case.

Read the entire ruling here.

We will be translating overview and general service information in the first phase of the project, and when these pages are live, we will provide links right from the home page.

Please contact us today if you desire any specific firm information in these languages.