Breach of Fiduciary Duty

A fiduciary duty is a duty to act in the interest of another individual with respect to certain transactions, even above one’s own interest. A fiduciary is obligated to act in good faith and to act with care and loyalty toward those to whom they owe fiduciary duties. If you believe someone involved in your business has violated their fiduciary duties, you may have a cause of action to recover for any resulting damages. A knowledgeable business attorney can help you determine the best way to protect your business from a breach of fiduciary duty. Business partners, employers and shareholders must constantly trust that their partners, employees, or corporate officers will act for their best interest. Sometimes, these trusted fiduciaries put their own interests first, which can give rise to a legal claim for damages. Business Disputes Attorney Michael Long What Are the Breach of Fiduciary Duty Elements in Florida? To establish a breach of fiduciary duty in Florida, a plaintiff must establish the following elements: Existence of a fiduciary relationship, Breach of a fiduciary duty, and Damages caused by the breach. Once these elements are established, a plaintiff may recover compensations for losses sustained as a result of the breach of fiduciary duty. Fiduciary Relationship To prove a breach of fiduciary duty in Florida, a plaintiff must first establish that a fiduciary relationship existed. Common fiduciary relationships arising in the business context include: Business partners, Corporate officer/shareholder, and Agent/principal. Each of these relationships involves specific fiduciary duties of good faith, care, and loyalty. Breach of Fiduciary Duty The business relationships mentioned above give rise to specific fiduciary duties in Florida. These duties may vary depending on the type of relationship involved. But the crux of all these duties is that the fiduciary is legally required to act for the benefit of the individual to whom they owe a duty. Partners Business partners owe one another fiduciary duties under Florida law. These duties are specifically outlined by the Florida Statutes. They include duties to: Account to the partnership for any profits received from conducting partnership business or using partnership property; Not act on behalf of parties with interests adverse to the partnership; Not compete with the partnership; Not conduct business recklessly or with gross negligence; and Not intentionally engage in misconduct or knowingly violate the law in conducting business. Partners aren’t forbidden from all activities that further their own interests, but they can be held to have violated a fiduciary duty if they do not comply with their statutory partnership duties. Corporate officers Corporate officers have a fiduciary duty to the company’s shareholders. A corporate officer’s fiduciary duty in Florida requires them to: Exercise their powers in the interests of the corporation; Work for the benefit of all shareholders; Become informed of all material information that is reasonably available prior to making a decision; Not take illegal actions on behalf of the company; Disclose any conflicts of interest; and Obtain approval from neutral directors or shareholders for any transaction of the corporation in which the corporate officer has an interest. The Florida Statutes also generally require corporate officers to act in good faith and in a manner they reasonably believe is in the best interests of the corporation. Employees Employees also have a fiduciary duty to their employer. An employee may violate their duty by doing things like: Taking a business opportunity from the company; Stealing trade secrets from the employer; Engaging in a competing business; or Defrauding the employer. Employers can pursue legal action against employees who breach their fiduciary duties to the employer. Damages Various remedies may be available when a breach of fiduciary duty damages the individual to whom the duty is owed. A victim may seek both compensatory and punitive damages. A victim may also seek equitable relief, such as an injunction, an accounting, or disgorgement of profits. An experienced business attorney can help you calculate your potential damages and determine what types of remedies may be appropriate in your case. How Can BrewerLong Protect Your Business After a Breach of Fiduciary Duty in Florida? If you believe you have a cause of action for breach of fiduciary duty, contact the legal team at BrewerLong today. Our attorneys have extensive experience representing businesses of all sizes in complex legal disputes. Call us or contact us online to set up a consultation. We can answer your questions about the breach of fiduciary duty elements in Florida and help you determine a legal strategy to address your claim.

DBA in Florida

One of the first things to decide when you start a new business is what to name it. It is common for a business to advertise and operate under a different name from its legal one. However, Florida law requires you to register any alternate names so that the public is aware of who is actually operating the business. An experienced business attorney can help you with every aspect of starting your new business, including helping you comply with all rules for properly registering your business’s DBA in Florida. What Is a DBA? DBA stands for “doing business as.” In Florida, a DBA is also known as a fictitious name. A DBA allows you to operate your business under a different name than your own name (in the case of a sole proprietorship) or the registered name of your business. You can apply for a DBA when you first register your new business, or you can apply for a DBA later on if you decide to make changes to your business. A business can use a DBA to advertise, transact business, and open bank accounts. Why Use a DBA in Florida? There are various reasons a business might want to use a DBA. Sole Proprietorships Sole proprietorships often use DBAs because sole proprietorships are not a registered entity. If you want to operate your sole proprietorship under any name other than your own, you will need to register a DBA. For example, let’s say Chad has a sole proprietorship in which he builds and sells chairs. He would like to put up a sign in front of his shop and start taking out ads using the business name Chad’s Chairs. Chad would have to register Chad’s Chairs as a fictitious name. Registered Business Entities Other business entities, such as LLCs and corporations, would use a DBA if they wanted to start operating under a different name or if they wanted to operate multiple businesses without creating a separate entity for each business. For example, let’s say Chad sets up an LLC registered as Chad’s Chairs LLC and registers Chad’s Chairs as its fictitious name. After a few years, Chad’s Chairs has expanded its business and wants to be known for more than chairs. Rather than register a completely new business entity, Chad’s Chairs could apply for an additional DBA to start operating under the name Chad’s Fine Furniture. Or perhaps Chad’s Chairs just wants to expand its business by selling to customers online. To emphasize its web presence, Chad’s Chairs wants to do some of its advertising under the name ChadsChairs.com. Chad’s Chairs would then register ChadsChairs.com as an additional DBA. Is Filing a DBA in Florida Necessary? If you intend to operate your Florida business under any name other than your own name or the registered name of your business, you must file a fictitious name registration. Because a company’s official legal name must include a business type designation—like LLC, Inc., or Co.—businesses that do not want to use that designation in marketing must register a DBA. Florida requires DBA registration to protect the public from business owners who might want to hide their identity behind an alias. Registration of a DBA allows consumers to search public records and determine which individual or business is behind a fictitious name. If you fail to file a DBA in Florida, you can be charged with a second-degree misdemeanor. This could carry penalties of up to 60 days in jail, a fine of up to $500, or both. Choosing Your DBA When selecting a fictitious name, it is best to choose one that is not already being used. You can search Florida business records to determine whether your DBA is being used by another business. Florida DBAs aren’t permitted to include business entity designations such as “LLC,” “corp,” “incorporated,” etc. Registering your DBA doesn’t protect your business name against other people using it. So if you want to have the exclusive use of your business name, you will need to register it as a trademark. This cannot be overstated: registering a fictitious name is not a substitute for federal or state trademark registration. You can register any name you choose, but using that name might infringe another business’s trademark rights. Likewise, your registering a name doesn’t prevent anyone else from registering the same name. Business and Trademark Attorney Ashley Brewer How to File a DBA in Florida Filing a Florida DBA involves several steps. We discuss them in detail here. Legal Notice Before you can file a DBA, you have to publish notice of your intent to register with at least one newspaper in the county of your principal place of business. The newspaper notice will likely cost somewhere between $30 and $100. Once it has run, the newspaper should send you a certification to confirm the publication. Filling Out a Fictitious Name Form Once you have published your notice with the newspaper, you can proceed to fill out your registration form. The form must include: Proposed fictitious name, Business’s mailing address, Name of the county where the business has its principal office, Names and addresses of business owners, Business’s EIN number, and Business’s Florida Document Number (for entities registered with the state). An owner of the business must sign the form, certifying that it is correct and that they have complied with the requirement to advertise notice of the intent to file. Filing Your Form You have the option to either file your form online or fill out a pdf version and submit it by mail to: Fictitious Name RegistrationPO Box 6327Tallahassee, FL 32314 The cost to file your form is $50. If filing your form by mail, you should make checks payable to the Department of State. If you file online, you will receive a confirmation email within 24 hours of posting your registration. If you apply by mail, you will receive confirmation by U.S. mail. Applications are generally reviewed and approved within a few days. Update Your Registration DBA…

Florida Firing Laws

Employees and employers alike may wonder: Can you be fired for no reason in Florida? The answer is yes. Florida is an “at-will” state, which means that in most cases, Florida firing laws permit an employer to fire an employee at any time with or without cause. The employer also doesn’t need to give advance notice of termination. Nevertheless, there are a few situations where firing an employee can get an employer into hot water, so it’s important to understand the limitations. Additionally, it’s important to understand legal obligations you may have to an employee after firing them. A knowledgeable employment law attorney can help you develop policies and procedures to ensure that you comply with Florida laws on firing employees. For an overview of those laws, keep reading. How to Fire an Employee Legally Because Florida is an at-will state, you can generally fire employees without cause or notice. As with any rule, however, there are exceptions. You cannot fire an employee under Florida employment law if termination is for an illegal reason or goes against the terms of an employment contract. Don’t Terminate an Employee for Illegal Reasons Although you can usually terminate an employee for any reason or no reason, some reasons are illegal. If you fire an attorney for one of these illegal reasons, you may face a wrongful termination suit from the terminated employee. Discrimination Federal and state law prohibits employers from firing employees based on: Race, Color, Religion, Sex, Gender identity, Pregnancy, Sexual orientation, National origin, Age, Disability, or Genetic information. In addition to these categories, Florida law prohibits employment discrimination based on marital status or AIDS/HIV. Retaliation Federal law prohibits employers from terminating employees in retaliation for a number of protected activities such as: Filing a complaint or complaining to an employer about discrimination or harassment; Participating in a discrimination or harassment investigation; Requesting accommodations for a religious practice or disability; Complaining about unfair labor practices; Taking leave under the Family and Medical Leave Act (FMLA); Participating in a union; or Reporting hazardous working conditions. Florida has enacted additional laws that protect employees from retaliatory termination for things like: Reporting an employer’s legal violations; Participating in an investigation into alleged violations; Claiming workers’ compensation; or Reporting government waste or gross mismanagement (in the case of public employees). This does not mean that employees in these circumstances cannot be terminated for valid reasons. But employers should tread carefully in such situations because a disgruntled employee may allege that the purportedly valid reason is just a pretext for retaliation. Comply with the Terms of Employment Contracts Employees and employers can choose to alter their at-will relationship with an employment contract. This may contain provisions that require good cause for termination, a certain amount of notice, or other restrictions. If you fire an employee in violation of the terms of an employment agreement, you could be sued for breach of contract. Provide Proper Notice for Large-Scale Layoffs One other law you should be aware of is the federal Workers Adjustment and Retraining Notification (WARN) Act. This federal law requires you to give 60 days’ notice if you intend to lay off either 50 or more employees at one location or more than 1/3 of your full-time workforce. Florida Employment Law After Termination Florida laws on firing employees also require you to do a few things after you have let an employee go. Pay Remaining Wages Florida does not require you to pay a terminated employee’s outstanding wages immediately. However, you do need to be sure to pay them what they are owed by the next regular payday after they are fired. Provide Healthcare Coverage If you have 20 or more employees and offer optional group healthcare coverage, you have to allow the employee to maintain their coverage for up to 18 months following termination. This rule is governed by the federal Consolidated Omnibus Budget Reconciliation Act, commonly known as COBRA. Even though you have to allow the employee to continue coverage, you don’t have to pay for it. Unless you elect to subsidize COBRA as part of a severance package, the employee will have to pay both the employee and employer’s share of the insurance if they want to stay on the group plan. Pay Unemployment Benefits Unless the employee was fired for malicious conduct, they will be able to apply for unemployment benefits after they are terminated. Unemployment benefits will not pose an immediate cost to an employer, because they are paid for through reemployment taxes paid by the employer. However, your Florida reemployment tax rate is affected, over time, by the amount of benefits paid out for your former employees. BrewerLong Can Help You Comply with Florida Firing Laws Firing an employee is a straightforward business in most cases. But if you face issues of possible discrimination, retaliation, or breach of contract, Florida laws on firing employees can become complex. The particular situation involving an employer’s relationship with an employee before termination and the reason for termination is critically important to the employer’s exposure to a claim of wrongful termination. Talking with an attorney before terminating an employee is always best. Employment Law Attorney Kristi Benson BrewerLong is an employment law firm for employers. We take a proactive approach to help you avoid employment suits. We can help you develop procedures, draft policies, and even train your human resources team to help your business stay compliant with Florida employment laws. We can also defend you against wrongful termination, discrimination, breach of contract, or any other employment-related claim. Call us or contact us online today to learn how we can help protect your business.

Partnership Disputes Lawyer

Most people do not start a partnership expecting to get into disputes with their partners. However, just as with other relationships, business partnerships can go sour. Partnership disputes about finances, authority, or the business’s goals can make a partnership become unworkable. In other situations, one partner’s misconduct may put the business in jeopardy. You can head off many partnership disputes before they arise with a detailed and well-drafted partnership agreement. A partnership agreement can address things like: How profits and losses will be allocated, Rules for decision-making, What each partner will contribute to the partnership, Each partner’s responsibilities and authority, How to resolve disputes, and How to divide the partnership if it dissolves. In case of a partnership dispute, the partnership agreement will govern first. If the dispute relates to matters not covered in the agreement, then the dispute will be resolved based on provisions of the Florida Revised Uniform Partnership Act. The Partnership Act also governs disputes regarding certain statutory matters that cannot be altered by a partnership agreement, such as breaches of a partner’s duty of loyalty. A business partnership attorney can help you draft a strong partnership agreement that can help you avoid many types of partnership disputes down the road. But even with a good partnership agreement in place, you may find yourself in need of a partnership dispute lawyer to resolve various issues your partnership may face. Here are five of the most common reasons you may need a partnership dispute lawyer. 1. Breach of Fiduciary Duty Business partners have fiduciary duties of loyalty and good faith that cannot be waived. These duties are outlined by the Florida Statutes and include duties: Not to compete with the partnership, Not to violate the law or engage in intentional misconduct, To account to the partnership for profits and for the use of partnership property, Not to act on behalf of adverse parties, and Not to act with gross negligence or recklessness in conducting business. If a partner breaches a fiduciary duty, you may be able to obtain an injunction or recover compensatory and even punitive damages. 2. Expulsion of a Partner Sometimes a partnership becomes unworkable because of one of the partner’s actions. In such a situation, the other partners may seek to expel the troublesome partner. Expulsion is typically governed by the partnership agreement. The partnership agreement may permit expulsion of a partner for things like: Being charged with or convicted of a crime, Filing for bankruptcy, Engaging in professional misconduct, Failing to carry out obligations under the partnership agreement, or Breaching the partnership agreement. Florida law also permits expulsion of a partner by the unanimous vote of the other partners in certain circumstances, such as where it is illegal to continue in business with that partner. Or the partners may request a court order expelling the partner for wrongful conduct. 3. Disagreement About How to Run the Business Often, as a business develops, disputes will arise among partners regarding how the business should be conducted. Common disputes include issues such as: How to use the business’s resources, Who has the authority to make decisions, Which business opportunities to take, How to use the business’s profits, and What business objectives to prioritize. If you have a well-drafted partnership agreement, most of these disputes should be avoidable. Your partnership agreement should address all of these issues. However, you may not have a partnership agreement, your agreement may be incomplete, or you may have disagreements about how your agreement should be interpreted. If this is the case, you may need to reach out to a partnership dispute lawyer to help you resolve disagreements between partners about how to run the business. This might involve negotiating a new partnership agreement or amending your current agreement. 4. Breach of Contract Partners may enter into various types of agreements to govern their business and the partners’ behavior toward the business. Some of these agreements may include a: Non-disclosure agreement, Non-compete agreement, Employment agreement, or Partnership agreement. If one of your partners has violated the terms of a partnership contract, or if you have been accused of violating a contract, a partnership dispute lawyer can help you reach a resolution. 5. Breakup of Partnership Partnerships can break up due to any number of factors. Sometimes a partnership breaks down because of disagreements and conflict. In other situations, one partner simply wishes to withdraw from the business, becomes incapable of participating, retires, or passes away. Additionally, a partnership may terminate upon the expiration of a set term or when the purpose of the partnership is completed. No matter the reason for dissolution, the process can give rise to a partnership dispute about issues like: The value of a terminating partner’s share of the business, Whether a partner has violated terms of the partnership agreement, How to divide partnership assets, How partnership debts are to be paid, and Whether other partners will be permitted to buy out a withdrawing partner. As with issues pertaining to how the business is conducted, many issues relating to partnership termination may be resolved by turning to the provisions of your partnership agreement. But if there is no partnership agreement or if the partnership agreement does not adequately address issues of termination and dissolution, some of these issues can become messy. Regardless of your situation, it is a good idea to consult with a knowledgeable business partnership attorney when dissolving a partnership to ensure that your interests are protected. Not every dispute among business must end in litigation. Most disputes can and should be resolved among the parties outside of court. Having good legal representation on both side of a business dispute is often the best way to resolve the matter quickly and without escalation. Business Disputes Attorney Michael Long How BrewerLong Can Help The skilled partnership dispute lawyers at BrewerLong have years of experience helping Florida businesses with all types of business disputes. We can also help with every other phase of your business, from formation to dissolution…

Can 2 business have the same name

Can Two Business or Products Have the Same Name? You’ve come up with a clever name for your product or business and run a Google search on it, and there’s another product or business with the same name, or a very close one, in another state. But they haven’t registered the trademark with the U.S. Patent & Trademark Office. It may be tempting to go ahead and use the name because you like it and have become attached to it. In this scenario, you could use the name. The other company, with an unregistered trademark, only has limited rights, called “common law” trademark rights, which are not nearly as expansive as registered trademark rights. The company who first used the name and didn’t register it can only enforce its rights against others who use the name in the same geographic area where they have a certain threshold of market presence. Depending on the business model, including the extent of their online sales vs. a business that is only local (e.g. single location coffee shop), you can legally use the same name in another part of the country if they haven’t registered the trademark. But should you? Let’s look at a few possible scenarios involving the single location coffee shop: You Don’t Register the Trademark It’s been open in one location for 2 years in Virginia. They didn’t register the trademark. You’re opening a tea shop in Florida and decide to use the same name. At the moment, it’s unlikely either of you would have any cause of action against the other for trademark infringement, because unregistered trademark rights are geographically limited. A year after you open your tea shop in Florida, the Virginia coffee shop decides to start selling its ground coffee online and expanding its locations. It has a substantial number of customers in Florida, and they’ve realized they need to register the trademark. They register the trademark. Now, they have national rights to the name and can stop anyone else with a coffee shop (and probably a tea shop) from using the name, including you, because you started using the name in commerce after they did. After all the dollars you’ve invested in marketing your tea shop, you could be forced to change the name. You Register The Trademark Now let’s say you’re ahead of the game and you register the trademark for your tea shop as soon as you open for business. You now have national rights in the name . . . however, the Virginia coffee shop was using the name before you were. Even with your registered trademark, they can still use the name because they were using it first. You have trademark rights against anyone coming later in time than you, but never against anyone coming before you. And now the Virginia coffee shop wants to expand their business online and with new stores, moving into other states. If your registered trademark is less than 5 years old (meaning it is not yet eligible for incontestability), they can file a petition to cancel your trademark registration, file for registration themselves, and force you to change the name. Need Help with Trademark Registration? “No matter how much you like a particular product or business name, it’s not worth the risk of headaches and expense to use a name that’s already taken anywhere, whether they have registered the trademark or not.” According to trademark attorney, Ashley Brewer And besides, don’t you want to stand out in the market with a clever name that no one else has? Be original! It will pay off. Contact the intellectual property lawyers at BrewerLong today.

Florida Labor Laws and Breaks

Under Florida labor laws, breaks are not required. However, most businesses recognize that breaks make employees more productive. In fact, a recent study shows that the way workers structure their day affects productivity much more than the number of hours they work. When you are building a new business, it is important to consider how you want to handle employee breaks. You can encourage appropriate breaks and set expectations by including break policies in your employee handbook. As you consider how you want to treat breaks in your company, you may benefit from the advice of an employment lawyer. The employment attorneys at BrewerLong can advise you in developing policies that make sense for your company that comply with the law. Florida Break Laws With the exception of minors, who must receive a 30-minute break every four hours, employees do not have a legal right to breaks under Florida labor laws. Lunch breaks and rest breaks can boost employee productivity, however, so many companies offer them even though they are not required. Federal Break Laws Federal labor laws also do not require employers to provide breaks. However, if employers elect to provide breaks, they must comply with certain rules. Short Breaks If your company offers short breaks of 20 minutes or less, the company must pay employees for the break time. Additionally, employers must include the time allocated for these short breaks in calculating overtime. Longer Breaks You do not need to pay employees for longer breaks over 20 minutes as long as the employee is completely relieved from duty. However, if you require an employee to complete tasks or remain available for work during their lunch break, you have to pay them. For example, if you require your receptionist to remain at their desk to greet visitors during their lunch break, you must pay them for that time. Drafting Employee Policies About Breaks When you have a business, it is important to have an established policy regarding break times. A clear, written policy will help employees know what to expect and make it easier to enforce your policies consistently. Here are a few things you might consider including in your policy: How often employees may take breaks; How long breaks will last; How breaks will be scheduled; Whom employees should notify when they go on break; Whether employees may leave the premises during breaks; and Potential discipline for violation of break policies. “Having clear, written policies—whether they are in an employee handbook or some other form—is among the best ways for businesses to avoid disputes among employees” Employment Attorney Trevor Brewer Get Advice from a Florida Employment Attorney Even though Florida labor laws don’t require breaks, it is a good idea to consider what kind of break policy you want to establish for your company. The experienced employment attorneys at BrewerLong work exclusively for employers. We provide many services to help employers anticipate and head off potential legal problems. These services include drafting company policies and procedures and employee handbooks. If you want to learn more about how we can help you craft the right policies for your company, give us a call or contact us online for a free consultation.

Can an Employer Sue an Employee

If you are a small business owner suing an employee or former employee, you may have struggled to find good advice on how to go about it. There are plenty of people who advocate for employees’ rights. We frequently hear about issues relating to fair wages, discrimination, harassment, working conditions, etc. And there is plenty of advice out there for employees who want to sue their employers. But employers suing employees? You may have to look harder to find the answers you need. That’s where BrewerLong comes in. We are a full-service business law firm in Orlando, Florida. We can help you with every aspect of your business, including suing an employee who is hurting it. “Businesses put a great deal of faith in their employees. In situations where an employee harms the business, there might be good reason to sue the employee for damages to the business.” Employment Attorney Michael Long So let’s talk about a few of the ways you may be able to defend your business. Breach of Contract Florida is an at-will employment state, so for the most part, your employees have no contractual obligation to you. However, there are some situations where you may enter into a written contract with an employee. This is especially common with more highly qualified employees who are more essential to your business or who may be privy to trade secrets. So can an employer sue an employee for breach of contract? Yes. If your employee breaches a contract with you, it can cause your company to suffer financial loss. When this happens, you have the right to sue. The following are several types of contracts that you might need to enforce against an employee. Non-Disclosure Agreements Employees may have access to lots of proprietary information that you would not want to share with a competitor. Non-disclosure agreements, also known as confidentiality agreements, protect your trade secrets and other confidential information. Under Florida law, non-disclosure agreements are enforceable when they reasonably protect a legitimate business interest. You may have a non-disclosure agreement aimed at protecting things like: Marketing strategies; Product prototypes and company research; or Client or customer details. If an employee breaches a non-disclosure agreement, it can have devastating consequences for your company. By suing an employee for breach of a non-disclosure agreement, you should be able to get a court order preventing further disclosures. You may also be able to recover monetary damages if your business suffered losses as a result of the employee’s actions. Non-Compete Agreements Non-compete agreements limit an employee’s ability to work in a competitive business within a certain time after leaving your company. They serve many of the same interests as non-disclosure agreements, as they prevent employees from taking your trade secrets or your client contacts to another business. Further, they may help you retain employees that you have invested in. The legal requirements of non-compete agreements are similar to non-disclosure agreements in that they must be aimed at protecting a legitimate business interest. They also must be limited in duration and scope. This means that you can only restrict the employee from working for a competitor for a limited amount of time after they leave you. Further, the restriction should be limited to the geographic area where you conduct business. If an employee breaches a non-compete, you can ask for a court order precluding them from working in violation of the agreement. Non-Solicitation Agreements Non-solicitation agreements are another form of non-compete agreement. You can use them to prevent employees from trying to steal your clients and customers. This type of agreement may also restrain an employee from trying to induce your other employees to work somewhere else. Once again, Florida law requires these agreements to serve a legitimate business interest, and they must be limited in scope and duration. If an employee breaches a non-solicitation agreement, a court can order them to stop communicating with the people they are wrongfully trying to solicit. Employment Agreement Most of the time, there is no formal contract between employers and employees. Employment is “at will,” and either the employer or the employee can terminate the employment relationship at any time. However, there are some circumstances where you may elect to enter into an employment agreement. For example, if you have an employee with a rare talent that is valuable to you, you may want to offer them additional employment security. Employment agreements may include terms such as: How the employee will be paid; How long the employment contract will last; Reasons the employee may be terminated; Notice the employee may be required to give before quitting; and The employee’s responsibilities. Employment agreements also may contain non-disclosure, non-compete, or non-solicitation clauses. If your employee has breached an employment contract—for example, by failing to fulfill their employment responsibilities—you may be able to sue for any financial loss resulting from the breach. Theft or Destruction of Company Property If an employee steals or destroys your company property, you can sue them for conversion. Conversion is a civil claim based on someone wrongfully depriving another of their property. Damages for conversion are based on the fair market value of the property taken or destroyed. Your employee could also face criminal penalties if you choose to press charges for the theft. In this case, a court may order the employee to pay restitution by compensating you for the stolen items. Defamation What can you do if an employee or former employee is telling lies about you or your business? Can an employer sue an employee for defamation? The answer is yes. Defamation occurs when someone says something false about you that damages your reputation. To prove defamation, you must show that: The statement is false, The statement is negative, The statement was shared with a third party, The employee was at least negligent as to whether the statement was true, and The statement harmed you. Truth is an absolute defense to defamation, no matter how damaging the statement is. But you…

Non Compete Agreements

Non-compete agreements are a great tool for businesses to protect their interests against unfair competition from former employees. After you have hired, trained, and provided employment for someone, they should not be permitted to undermine your business by using confidential information against you. Non-compete agreements can serve several functions. They can restrict current and former employees from: Working in a competitive business; Soliciting your vendors or employees; Soliciting your customers; and Sharing confidential information about your business. So are non-competes enforceable in Florida? In most circumstances, the answer is yes. Florida law recognizes the validity of a non-compete clause. Florida businesses can reach agreements with their employees limiting the employees’ ability to compete with the business for a certain period of time. “For many businesses, their most important assets are the knowledge and experience of their employees and the relationships they have formed with vendors and customers. A non-compete agreement is an important tool to safeguard a business’s investment in its employees.” Employment Lawyer Trevor Brewer However, a non-compete agreement must comply with specific requirements to be enforceable. Most notably, it must be reasonably necessary to protect a legitimate business interest. If you are considering using non-compete agreements to protect your business, it is important that you get sound legal advice from an experienced employment lawyer. The legal team at BrewerLong can help you determine how to use non-compete agreements in your business. They can assist you in drafting agreements that are enforceable and that protect your interests. Non-Compete Agreements in Florida Historically, non-compete agreements were not enforceable. Even today, some states view them as an unfair restraint on trade. These states may place extensive limitations on the enforceability of non-compete agreements or ban them altogether. However, Florida non-compete law recognizes the validity of these types of agreements. Florida Statute § 542.335 sets out the requirements for enforceability. The most recent version of this statute, enacted in 1996, is considered to be very pro-business. Reasonableness: The Touchstone of Florida’s Non-Compete Law Florida’s non-compete statute requires all non-compete agreements to be “reasonable in time, area, and line of business.” The Florida Supreme Court has emphasized the statute’s reasonableness requirement and recognized the discretion of trial courts to apply the statute in each specific situation. Keeping the overall reasonableness consideration in mind, there are a number of factors that affect the enforceability of a non-compete clause in Florida. Must Be in Writing First, a non-compete agreement in Florida must be in writing. Further, the employee must sign it. Legitimate Business Interest A non-compete agreement must protect a “legitimate business interest.” Further, the non-compete limitation used must be “reasonably necessary” to protect that legitimate business interest. The following legitimate business interests are listed in the non-compete statute: Valuable confidential information; Goodwill; Trade secrets; Substantial relationships with customers, patients, and clients; and Extraordinary or specialized training. However, courts may recognize additional interests as well. For example, referral sources have been recognized as legitimate business interests even though they are not specifically listed in the statute. If you can show that your business has a specific interest not listed in the statute, a court may enforce a non-compete agreement intended to protect that interest. Number of Employees Bound Some businesses require all employees to sign a boilerplate non-compete agreement. This is not a good idea because it could affect the enforceability of the business’s most important non-compete agreements. An employee who is tasked with building relationships with clients may be in a position to steal away clients if they leave the business. Likewise, an employee with access to the business’s confidential information or trade secrets may be able to use that information to build a competing business. But the average employee probably doesn’t have access to this kind of information. If such an employee takes a job with a competitor, it is probably not reasonably likely that their new employment will negatively impact your legitimate business interests. Thus, it is important that you tailor your non-compete agreement to the employees that will be bound by it. The agreement should explicitly identify the legitimate business interest it is aimed at protecting. Further, you should take care to identify the specific employees that are in a position to affect that legitimate business interest. Only those employees should be asked to sign a non-compete agreement. Length of Restriction A non-compete agreement in Florida must put a limit on the amount of time it will constrain an employee from competing. That time limit must be reasonable. Florida non-compete law states that for most non-compete agreements six months or less is presumed to be reasonable and two years or more is presumed to be unreasonable. If the restriction is set for some time between six months and two years, the court will have to assess reasonableness based on the specific circumstances. Geographical Area of Restriction Just as you should put reasonable time restrictions on your non-compete agreements, you should also put reasonable geographical limitations on them. Again, the restriction should be aimed at protecting your legitimate business interests. For example, if you conduct business only in the State of Florida, it would not be reasonable to restrict employees from working in another area of the country. Your non-compete agreement should be limited to the geographical area in which you actually do business or in which you reasonably expect to do business in the near future. Consistent Enforcement In addition to carefully drafting your non-compete agreements, you should take care with how you enforce them. If you let it slide when one employee violates your non-compete, you could come under scrutiny if you later try to enforce the non-compete against another employee. For example, an employee could claim that you are enforcing the non-compete for a discriminatory or retaliatory reason. Or the employee could argue that your apathy in the past means that the agreement does not really protect a legitimate business interest. Choice of Law Provisions and Out-of-State Employees Many non-compete agreements contain a choice-of-law provision that directs courts to…

Defamation of Character

If a former employee has been bad-mouthing you, you may be able to sue them for defamation of character. Florida law allows people to share their opinions or make critical statements. But it also protects people from lies that can damage their reputations or careers. If you believe you have a claim against a former employee for defamation, a business lawyer in Florida can help you protect your professional reputation. “Social media makes it easier than ever for a disgruntled former employee to try to get back at his or her employer. Employers may need to react quickly to protect their reputation online.” Business Lawyer Michael Long What Is Defamation? Defamation is when one person says something false about another person that hurts their reputation. Defamation can either be in writing (libel) or spoken (slander). How Does the First Amendment Affect a Defamation Claim? The First Amendment to the United States Constitution protects an individual’s right to speak freely. Generally, people expect to be able to say what they like without fear of government interference. This includes the right to share one’s opinion and to make critical statements that are true or that one reasonably believes to be true. But the First Amendment right to free speech is limited when it butts up against other important rights. In the case of defamation, one person’s right to free speech interferes with another’s right to protect their good name. For this reason, defamation is not protected speech. How Is Defamation of Character Proven in Florida? If a former employee slanders you, it can cause serious damage to your business and reputation. To prove defamation, you must establish each of the following elements. Statement Must Be False First, you must show that the statement is false. Truth is an absolute defense to defamation. No matter how damaging a statement is, you can’t stop a person from saying something that is true. Statement Must Be Defamatory The statement also must be defamatory. In other words, it must say something negative about you. Statement Must Be Communicated to a Third Party Next, you must show that the statement was shared with a third party. If an employee came into your office and falsely accused you of doing something wrong, but did not share the accusation with anyone else, the statement is not actionable. Similarly, if the employee wrote down something false about you but did not share it with anyone, you could not establish defamation. The Person Must Have Been at Least Negligent as to Whether the Statement Was False It is possible for someone to spread a false statement believing it to be true. Florida law will not hold someone responsible for defamation if they made an honest mistake. However, if the person was negligent in their efforts to verify the statement’s truthfulness, then they may still be held liable for defamation. For example, if the employee was repeating information they heard from someone they know holds a grudge against you, they may be negligent for not investigating the information further before sharing it with others. The Statement Must Cause Harm Finally, you must show that you suffered damage as a result of the defamation. Damage may be financial, such as losses to your business resulting from the defamation. They may also be emotional or social. Examples could include suffering unusual amounts of stress following the statement or a friend cutting ties with you because they believed the false statement. What If a Former Employee Slanders My Business? Another option you may be able to pursue based on a former employee’s slander is a claim for business disparagement. Business disparagement or commercial disparagement occurs when someone makes defamatory statements about your business for the purpose of damaging the business. To prove business disparagement, you have to establish that: The statement was false; The person making the statement either intended to or reasonably believed the statement would cause the business financial loss; The person either knew the statement was false or acted in reckless disregard of the truth or falsity of the statement; and The business suffered financial loss. A business disparagement claim requires different proof than a defamation claim. An experienced business attorney can help you determine which cause of action fits your particular circumstances. Contact a Business Attorney You do not have to stand still and suffer defamation of your character. Florida law gives you options for protecting your reputation and your business from false and disparaging comments made by former employees. The experienced business attorneys at BrewerLong are here to help keep your business strong. Give us a call or contact us online to see how we can help you put a stop to slander by a former employee.

Contract for Equity in Your Company

A contract for equity provides a powerful path to business success while preserving cash assets. Sometimes called an employee equity agreement, these contracts allow you to compensate employees—all or in part—by conveying an equity share in your business. Your company can put its cash to work in other ways while equity employees work harder to ensure company success. A business employment lawyer can discuss the best way to use contracts for equity to help grow your business. What Is a Contract for Equity in a Business? A contract for equity is a type of employment agreement that allows employees to earn a share of ownership in your company. Typically, employers use equity agreements in addition to traditional compensation. Equity stake employees will earn a portion of their compensation through a salary or hourly wage. Workers will earn the balance of their compensation through an incremental stake of company ownership. Although you can explore the potential of paying employees purely in equity, most will require some financial compensation as well. You can also use an equity-for-services agreement with independent contractors. However, many businesses prefer to apply this useful tool for their own in-house employees. How Can You Use an Employee Equity Agreement to Grow Your Business? Small businesses and start-ups rarely have an excess of cash at their disposal. Consequently, you might lack the financial resources to hire and retain top talent. If you have a lucrative concept and a persuasive pitch, you can use these assets to lure in the employees you need for success. When savvy employees recognize the potential you have to offer, they will be eager to grab a ground-floor stake. Another key advantage of using equity compensation agreements is the engagement these arrangements generate. When you bring someone on board in exchange for a share of the company, that employee essentially becomes an owner. With an ownership interest, employees understand they’re working for the success of their own future. You can’t generate this level of engagement with traditional salaried or hourly employment arrangements. Why Potential Employees Will Value a Contract for Equity in a Company Today’s employees recognize the value they can contribute to their employer. At the same time, they can feel resentment when their hard work goes exclusively to the benefit of someone else. One of the most talented and fastest-growing segments of today’s workforce are millennials. This demographic grew up on success stories like Mark Zuckerberg and Facebook. Facebook used contracts for equity in the early stages of its start-up. After Facebook’s IPO, those ground-floor employees enjoyed the fruits of their labor and a very valuable ownership interest. Business owners can use contracts for equity to court their industry’s top talent for positions throughout the company. In the case of Facebook and Google, company founders brought in executives and high-level managers they couldn’t otherwise afford, using equity as compensation. What Forms of Equity Can You Offer Potential Employees? Your business structure will dictate the details of your employee equity compensation agreement. The most common forms of equity you can offer potential employees include: Granted shares of stock, Stock options, and Stock warrants. Structuring your equity offering requires careful consideration. You must carefully oversee the administration of your program also. As employees become vested over time, both you and the employee must file various tax documents. You and your employees could also incur unexpected costs. Talk to an attorney who has experience in these matters to ensure everyone clearly understands the program. Setting expectations in advance will help ensure smooth sailing as your company begins to grow and expand. How a Business Lawyer Can Help with Your Equity Compensation Agreement Using equity as compensation offers a variety of compelling benefits for business owners. Unless you take great care in structuring these agreements, however, you could encounter costly legal hassles. Drafting a contract for equity in a company requires advanced legal expertise in areas that include: Employment laws and regulations, Taxation laws, and Securities laws. Your attorney will also assist you in determining the appropriate value of equity to offer each level of employee. This calculation is based on the potential value the employee contributes to the business. For elite talent, you might want to offer a larger percentage stake, to provide the best possible incentive. Equity compensation arrangements are a great way to incentivize and engage talented employees, but they have to be very well designed and managed. There are a lot of hidden traps, like imputed taxable wages, that require experienced handling. Florida Business Attorney Trevor Brewer Contact a Florida Contract for Equity Lawyer Today Brewer Long provides comprehensive legal services to small- and medium-sized businesses in Florida. We have deep experience in the areas of business including employment law for employers. We understand the struggles that small companies and start-ups face in today’s competitive marketplace. We can help you craft strategies that minimize your liability while helping grow your company. To learn more about using contracts for equity with your employees, contact us today