Contract disputes may arise when one party didn’t even realize an enforceable contract existed. In Florida, some contracts must be in writing to be valid and enforceable. Some oral contracts are also enforceable. However, evolving technology adds to the confusion regarding valid contracts. Many wonder whether agreements made over email or text message are legally binding. Consulting with an experienced business law attorney assists in answering complex questions related to contracts and contract validity. Today, business is often done quickly and informally over emails, text messages, and other forms of electronic communication. This makes it much harder and much more important to understand when an enforceable contract has been formed. Florida Business Attorney Trevor Brewer What Is a Contract? A contract is a legally binding agreement between two or more parties to do something. Upon formation, a contract requires all parties to agree to perform their duties under the terms of the contract. Failure to perform constitutes a breach. The non-breaching party can sue the non-performing party to either enforce the agreement or obtain monetary damages.  Elements of a Contract  There are three essential elements of any valid contract: offer, acceptance, and consideration. Generally speaking, if these three elements exist, the contract is likely valid and enforceable.  Offer An offer is a written or spoken statement by one individual to another. In other words, the offer expresses an intention to be bound by the terms upon acceptance by another. The Offeror is the person making the offer. The Offeree is the person bound to whom the offer is made.  Although it appears very straightforward, disputes arise between parties as to the existence of an actual offer. One party may believe they made an offer, whereas the other party believes it was just a discussion.  Within the statement itself, the presence of additional factors may indicate whether the statement is an offer. An offer made in jest is not considered valid. For example, a party stating they will sell their company for a $1 will likely not be serious. However, an offer expressing the willingness of the offering party to be held to the terms is valid. Additionally, a statement is more likely to be considered an offer if it is specific with definite terms and conditions.  Acceptance The recipient of an offer must accept, if at all, while the offer is still open. Consider the example of an offer that provides, “I will pay you $1,200 for your car if you accept within four days.” If the receiver of the offer fails to accept within four days, the offer will no longer be valid. The receiver of the offer cannot accept the offer after seven days have passed.  A counter-offer is not an acceptance of the original offer. However, if the original Offeror accepts the terms of the counter-offer, that creates a valid contract. Acceptance comes in many forms. Reasonableness is the more general standard for determining whether acceptance is valid. Additionally, the “mailbox rule” provides that written acceptance of an offer is valid once placed into the mailbox. For example, the Offeror submits an offer. The Offeree mails acceptance of the offer and puts it in the mailbox. After the Offeree places the acceptance in the mailbox, the Offeror withdraws the offer before receiving the acceptance. In this situation, pursuant to the mailbox rule, the Offeree can enforce the terms of the contract despite the Offeror’s attempted withdrawal.  Consideration Consideration is the third element of a valid contract. It is also referred to as “the benefit of the bargain.” Consideration is a legal concept describing something of value exchanged for something else. The presence of consideration distinguishes an offer from a gift. For example, if someone said, “I am going to give you this jacket for nothing,” this exchange would likely be a gift. By contrast, if someone said, “I will give you this jacket for $20, and the other party agreed to pay, this would constitute a valid contract. The exchange of something of value, here the jacket, for another thing of value, $20, fulfills the consideration requirement.  When Is a Contract Enforceable? The presence of the elements mentioned above supports a valid argument for the existence of a contract. However, the form of a contract may affect its validity.  Is a Verbal Agreement Legally Binding?  A verbal contract is one formed in the absence of a writing. In Florida, specific contracts must be in writing. If made verbally, they are unenforceable. Contracts required to be in writing are the following:  Property transactions;  Goods transactions with a value over $500; Marital settlement agreements and premarital agreements; and,  Contracts with a completion date longer than 12 months. However, verbal contracts that pertain to other types of agreements can be legally binding if they contain all the necessary elements of a contract. Is an Email Agreement Legally Binding?  Today, the majority of communications are online. This fact leaves many wondering whether email communications can be considered a contract. Florida has adopted the Uniform Electronic Transaction Action (UETA). The UETA provides that electronic communications are sufficient to satisfy any statute requiring a contract to be in writing. Therefore, an email is sufficient to form a contract as long as the required elements of a contract are present. Additionally, in Florida, a binding contract can be found even without written signatures. Simply signing an email with your name is often sufficient. If a person uses contractual terms in the course of multiple email communications, a valid contract may be found. You may avoid inadvertent contracts via email by stating that your negotiations are “subject to contract” and that you don’t intend the communications to be binding. Are Text Messages Legally Binding?  Subject to the UETA, a contract can arise though any electronic medium, not just email communications. Therefore, although a chain of text messages may seem casual and, therefore, unenforceable, the UETA says otherwise. If a chain of text messages includes necessary contractual language, the text messages are legally binding.  It’s important…

Business Required to Pay Severence in Florida

Under Florida law, a business is generally not required to pay severance to a terminated employee. The U.S. Department of Labor generally does not require employers to offer severance pay. However, the existence of an agreement outlining severance terms creates a legal obligation to satisfy those terms. What Is Severance Pay? Severance pay is compensation an employer provides to an employee after termination of their employment. Monetary payment is not the only form of severance. Severance may include include extended benefits such as health insurance, retirement accounts, stock options, and assistance in searching for new work. Severance pay in Florida also includes payout of unused accrued “paid time off” or PTO, vacation pay, or sick leave. The months of service or the term of employment typically provides the basis for monetary severance calculations. In Florida, severance pay usually applies when an employee is laid off or retires early—not terminated or fired. Severance pay protects the newly unemployed and is typically viewed as a gesture of goodwill. Severance pay provides a previous employee with support until they secure a new job. However, when the employer has had a dispute with a departing employee, severance pay may be bargained to deter future legal action. Elements of a Valid Severance Agreement A strong severance agreement may protect against any future legal action by the employee. Because employees are only required to be paid severance according to an agreement between employer and employee, it’s important for that agreement to also include the benefits the employer gets in exchange for paying severance to the employee. Employers’ Attorney Kristi Benson Depending on the facts of the termination, an employer may want to include the following terms in a severance agreement. Release of Legal Claims If the potential for future litigation exists, the inclusion of a release of future claims is necessary. A release of general claims requests that the employee also agrees to release the employer from any potential claims they may have against the company. Confidentiality and Non-Compete Restrictions Confidentiality or non-compete restrictions may be a vital element of a severance agreement in Florida. Specificity of confidentiality clauses vary and request that the employee not divulge any proprietary information about the company or the employee’s employment. Non-compete clauses limit the employee’s future employment in a similar business over some time and in a certain geographic area. Non-compete clauses in Florida are enforceable as long as they are reasonable and protect a legitimate business interest. Mutual Non-Disparagement A mutual non-disparagement clause provides both the employer and the employee agree not to speak negatively about the other.  Mutual General Release A mutual general release releases both the employer and the employee from any future legal action. Neutral Reference or Reference Letter Severance agreements may include a neutral reference or reference letter. A neutral reference provides that employers may provide only dates of employment and position to requesting future employers. A reference letter goes further and provides dates of employment, position, and a positive statement. Contact Us If you are contemplating the termination of an employee or need assistance drafting strong severance agreements, contact the experienced Florida business law attorneys at BrewerLong. We are the premier employer’s law firm in Orlando and work tirelessly to protect you and your business from future litigation. Contact us today!

How to Form an S-Corp in Florida

Electing to be treated as an S-corp offers many benefits to both the business and the owner in Florida. An S-corp election may save money for your business especially when business profits are greater than your reasonable salary. Determine whether an S-Corp election is right for you and contact the qualified business attorneys at BrewerLong today! Making an S corporation election is often in the best interest of Florida corporations and LLCs, especially when the owners of the company are also working in company. Business Attorney Trevor Brewer What Is an S-Corp? A Florida S-corporation is a for-profit corporation or limited liability company (LLC) that has requested to be taxed under Subchapter S of the United States Tax Code. A Florida S-corporation reduces its tax burden by passing losses, deductions, income, and credit to its shareholders. S-corps avoid the double taxation of traditional corporations. Eliminating double taxation may potentially save your company hundreds of thousands of dollars. Florida taxes S-corporation income in the same manner as sole proprietorships and partnerships. The income of corporations is passed to shareholders for reporting. Shareholders use their income tax returns to report losses and income. A S-corp in Florida is essentially an election for special tax status. However, the same laws and rules apply to S-corporations as other Florida corporations or LLCs. Why File as an S-Corp? An S-corp offers many advantages to businesses in Florida. These advantages may outweigh any disadvantages or limitations. Pass-Through Taxation Filing as an S-corp provides the formal structure and limited liability of a corporation and pass-through taxation of business profits. There is no income tax imposed at the corporate level. Income is taxed only on shareholder returns. Following federal rules, Florida treats S-corp income as pass-through income. Business losses offset other income on shareholders’ tax returns reducing any income tax paid. This feature is particularly advantageous to start-up businesses with limited initial income. Business Growth An S-corp election in Florida may permit your business to raise capital more efficiently. S-corporation election allows for the issuance and sale of stock as evidence of interest in the corporation. Some financial lenders may require personal guarantees of business owners limiting the financial liability protection of S-corporation shareholders. S-corporations only permit one class of stock. The transfer of stock or change in business ownership is simplified. Simplifying class of stock limits interruptions to business operations and avoids unfavorable tax consequences. Eliminating complex accounting analysis saves on unnecessary business expenses. Limited Liability Each shareholder may lose only as much as they initially invested in the corporation. S-corporations in Florida are treated as a separate entity. Shareholders are not personally liable for any legal judgments, debts, or obligations of the corporation. For example, if a corporation goes bankrupt, creditors may not pursue the personal assets of shareholders to pay business debts. However, shareholders are liable for any crimes committed or corporate regulations violated. In a sole proprietorship or partnership, owners and the business are considered the same, leaving personal assets vulnerable. Benefits to Business Owners S-corporations still enjoy some benefits of a corporation such as insurance benefits, retirement plans, bonuses, and stock option plans. Additionally, there can be a separation of organization and management of a company. The management of the company is not required to hold ownership of the business, in contrast with the structure of partnerships, and sole proprietorships. Credibility Due to the formal commitment to their corporate structure, s-corporations may be viewed as more professional than sole proprietorships or partnerships. Customers and future investors may view your business more favorably, aiding in its success. Disadvantages of an S-Corp The disadvantages to filing as an S-corp in Florida may not align with the goals for your business. Tax Qualification Obligations Mistakes regarding the election of S-corp status, notification, consent of shareholders, stock ownership, and filing requirements may disqualify S-corporation status. Mistakes may be remedied easily, however, consultation with a qualified business attorney ensures these mistakes do not occur. Calendar Year Missing the registration requirement deadline for S-corporation status in Florida results in the failure to receive favorable tax treatment for that calendar year. Saving on tax expenses for your business requires satisfaction of these important deadlines. Stock Ownership Restrictions An S-corporation in Florida may have only one class of stock. Therefore, no varying classes of investors entitled to different dividends or distribution rights exist. Flexibility in Allocation of Income and Loss A traditional corporation easily allocates income and losses to particular shareholders; however, since S-corporations issue only one class of stock, this is more difficult. Allocation of losses and income is governed by stock ownership. Limitations on S-Corp Structure There are limitations on what types of companies may register as an S-corp in Florida. It is not the right choice for every kind of business. S-corps in Florida must be based in the United States. Some businesses, such as financial institutions, insurance companies, or domestic international sales corporations, are not eligible to register as S-corps. Additionally, the business may not have more than 100 shareholders. Only U.S. residents and citizens are permitted to operate as shareholders in Florida. Shareholders may not be other corporations, limited liability companies, partnerships, or certain trusts. Additionally, Florida S-corporations issue only one class of stock. Can An S-Corp Be Reversed? In the event a Florida S-corp is no longer an advantageous option for your business, reversal of your S-corp status is possible. Limitations exist, however. Reversal of the S-corp election may be done only after one year. You must wait for the following tax year before refiling with the IRS to revert to a traditional corporation. Need Help with Your Business? BrewerLong attorneys possess years of dedicated experience in business law matters and can ensure that your company’s formation is correct from the start. Our dedicated attorneys provide clients with knowledgeable legal counsel and answers to your complex legal questions. We understand the complexity of the small business culture and the quality representation smaller businesses require. BrewerLong attorneys are here to provide you with focused consultation and…

Business Interruption Insurance Claims

Business interruption refers to an unexpected disruption to the operation of a business. There are many reasons why businesses may suffer interruptions to their operations. Interruptions are usually the result of a catastrophic event, such as a natural disaster or possibly a pandemic such as COVID-19. When a business is not able to operate, the ability to generate revenue ceases or is drastically limited. Despite operational limitations, business obligations continue. Business interruption insurance, or loss of revenue insurance, provides a solution for businesses in these unexpected situations. What Is Business Interruption Insurance? Business Interruption Insurance is a form of insurance set up to support businesses in the event of a temporary ceasing of operations. This type of insurance is especially crucial for businesses relying on a physical location to generate income. Coverage plans operate to include replacement of lost revenue and payment of expenses when unexpected events require a business to shut down temporarily. The purpose of business interruption insurance is to place the business in the position it would be in had the interruption not occurred. While property damage is the most common reason for business interruption insurance, various scenarios exist that may result in an interruption to business operations. What Is Covered by Business Interruption Insurance? Business interruption insurance provides coverage for various losses that a business may suffer including: Actual losses: The loss sustained by the insured business resulting from the interruption to business operations is an actual loss. Business income: Business income is income the business would have received had the interruption not occurred. Period of restoration: Period of restoration is the time when business operations cease in order to repair, restore, or replace damaged or destroyed property. Period of restoration is applicable in situations where a natural disaster has damaged the business premises and business is interrupted until repairs are complete. Coverage plans offered under business interruption insurance assist in the following scenarios: Lost revenue. An example includes the loss of revenue suffered after substantial property damage closes a business while the owner completes repairs.  Rent or mortgage payments. If a business closes, rent or mortgage payments must continue even if the business is not operating. Relocation costs. Relocation costs refer to situations when a business must relocate to a new location due to an unforeseen event. Payroll. Despite the closure of a business, payroll obligations continue. Taxes. Payment of quarterly or annual tax obligations must continue, despite the business’s ability to generate revenue. Loan payments. Payments for loan obligations of the business. Property damage. Damage to the business premises. Other expenses. The insurance plan may outline specific definitions of “other expenses.” Policies may also include “extensions of coverage.” Extensions of coverage may include the following: Service interruptions. Service interruptions refer to damage to the sewer, electrical, water, telephone, or other utilities resulting in a disruption to business operations. Contingent business interruptions. Contingent business interruptions cover interruptions caused by losses of third-parties, such as suppliers. Leader property. This extension of coverage is applicable in situations where there is a loss, damage, or destruction to property not owned by the insured but that may affect the insured’s business. An example of a leader property is a large department store that attracts business to smaller stores in the same mall. Interruption by civil or military authority. This refers to situations where the government disrupts continuing business operations. This may be particularly applicable as many businesses are forced to cease operations due to COVID-19. When looking for business interruption insurance, you should choose a policy that  sufficiently covers your company expenses for more than just a few days. Prices of plans depend on the type of business seeking coverage. Higher risk businesses will likely have higher policy rates than businesses with a lower risk of business interruption. What Is a Business Interruption Claim? A business interruption claim is filed with the insured’s insurance company and details the specific request for coverage. A business must present the most recent income and expense reports, business history, and employee information. Most insurance companies require you to file specific documents to complete a claim. An essential element of any business interruption claim is the ability of the business to quantify the losses suffered by the business accurately. Accurate and up-to-date records of business operations are an essential element of any successful claim. These documents provide insurance companies with the detailed information needed to prove that a business did, in fact, suffer extensive losses as a result of the business interruption. How Are Business Interruption Claims Calculated? Business interruption claims intend to place the business back into the position it would have been in had the interruption not occurred. Business interruption insurance most commonly addresses losses in the following areas: Loss of profits due to the ceasing of operations; Additional expenses and the business’s inability to pay the costs due to loss of revenue; and Claim preparation costs to an attorney and accountant. A simple formula used to calculate business interruption claims is net expenses + continuing expenses + additional expenses = business interruption losses. Once calculated, it’s crucial to determine the extent of the business interruption insurance plan’s coverage. Any difference exceeding the plan limits will not be covered and is deemed a loss by the business. What Damages Are Recoverable from Business Interruption Insurance? Damages will vary from business to business, so careful calculation of the losses sought in addition to detailed records ensures a more successful claim. It is particularly vital for businesses to continuously maintain detailed income and expense reports, not just for the year in question, but from previous years. This useful information generates an accurate picture of the losses suffered from the business interruption by comparing the performance of the business to that of prior years.  In addition to income and expense reports, your claim should include property damage estimates and invoices, careful records of the dates of business interruption and commencement, and any other records related to your claim. How Can BrewerLong Help with Your Business…

What Employers Should Know About Working From Home Laws

The COVID-19 global pandemic has turned many business structures upside down. Nationwide, employers have notified their employees to work from home to slow the spread of the virus. Despite this change in structure, maintaining the productivity of your employees ensures the survival of your business. Employers must consider legal implications, procedural issues, and technological factors associated with this new telework environment. From payroll to tax considerations, if employers are advising employees to work from home, there are many issues to adapt to in the new workplace landscape.  Even when employees are working from home, employers must comply with the same federal and state laws intended to protect employees. Employment Attorney Kristi Benson What Are the Factors to Consider for Working At Home? There are several factors for employers to consider when determining whether the implementation of a work-at-home policy is feasible for their specific business. Making the Decision to Switch to a Telework Environment Employers should review their existing company policies and agreements with their employees and with third parties, such as customers, to determine if remote work is feasible for all or some employees. Does a telework or implementation procedure exist? If not, employers should prepare for clear communication with employees regarding expectations, reimbursement of any related expenses, and management of employee productivity. Employers should also internally review existing insurance plans and policy coverage data to determine if workers’ compensation and employee benefits, among others, remain in place despite the work environment change. Technological Factors Employees should be technologically equipped to work from home with internet connectivity, a computer, a printer, and other business-specific needs. Employers must consider whether privacy and data controls are sufficient to protect the business and any other private information. These may include the following: The implementation of added security measures to protect data and its transmission; The maintenance and storage of company data on company servers and not personal servers; and The requirement of all company communications conducted exclusively through company emails and accounts. It is important to consider the specific needs of your business in determining the level of privacy and controls you need. Communication with Employees Employers should provide defined expectations of employees working from home. It’s also a good idea to ensure clear communication channels to encourage employee communication with upper management. Employers should also confirm with employees how existing company policies, such as workplace harassment and employee benefits, extend into the working-from-home environment. Employee Agreement Where possible, employers should obtain a written agreement from their employees of the new telework policy. The agreement should covers the following points: Which employees are permitted to work from home; Employee expectations when working from home; Employee hours of availability; Employee understanding of the company procedures related to the protection of private information and general security; Monitoring of employee productivity; and  That the work from home policy is temporary and in response to the COVID-19 global pandemic. An employee agreement can help cement employee expectations and encourage continued productivity. Payment of Employees Rules regarding how you need to pay your employees vary depending on whether the employees are considered “exempt” or “non-exempt” under the Fair Labor Standards Act (FLSA). Exempt Employees As defined, FLSA exempt employees performing work outside of the office will earn their salary. These employees are exempt from overtime but will be paid for a full workweek if they performed any work during the week. If exempt employees did not work during a workweek, they need not be paid. However, if the exempt employees are directed not to work by the employer, then they must be paid their full salary. Employers must track the “type” of work exempt employees are carrying out. Monitoring procedures to measure productivity of exempt employees might be a good idea, especially when employees are working away from upper management. Exempt employees must perform their primary duties to maintain their exempt status. Non-Exempt Employees Non-exempt employees are those that are paid on an hourly basis and are eligible for overtime pay. Employers must pay non-exempt employees the hours that they have worked. If a non-exempt employee does not work, the employer is under no obligation to pay. If non-exempt employees are called upon to work extended hours as a result of the COVID-19 emergency, employers may be required to provide extra overtime pay.   Even more so than with exempt employees, monitoring the hours of work completed by non-exempt employees is important because it can affect overtime pay and other benefits. Disability Considerations Employers must ensure that the same accommodations afforded to any employees with existing disabilities still exist when working from home. For example, if an employee has a disability that requires extended breaks, those considerations must be implemented even though the employee is no longer working in the office. As more businesses adapt their platforms online, accommodations should be made for employees with vision or hearing disabilities. The federal Equal Employment Opportunity Commission (EEOC) requires an employer to make “reasonable accommodations” for a disabled employee, including: Modifying work schedules and policies, Providing qualified readers or sign language interpreters, and Providing devices or modifying equipment. The EEOC ensures that employees with disabilities are able to work just like their co-workers. Business Expenses and Tax Considerations Employees may be able to claim their home office as a tax deduction as a result of mandated work-from-home policies. An employee may request a home office deduction if required by your employer and the employer pays no rent to the employee. If challenged by the IRS, the employee is required to show documentation that the employer required the employee to work from home. The home office of the employee must be exclusively used for work with no personal use at any time during the tax year. If an employer requires an employee to work remotely due to COVID-19, they may wish to consider reimbursing the employee for any new phone, internet, or other expenses incurred, if the additions permit the employee to telecommute successfully. However, they are not required to do…

Modifying Child Support and Alimony Payments Due to COVID-19

State and Federal shelter-in-place orders due to COVID-19 have resulted in unprecedented interruptions to the economy. Many people have lost part or all of their income due to layoffs, furloughs, and business closures. Because of this, child support and alimony payment orders that depend on income are in question. Despite the current global turmoil, people must pay child support and alimony unless a court issues an order modifying the existing orders. Without a court order modifying or terminating child support or alimony payments, a motion for contempt may be filed against the individual behind on payments. When Can I Modify My Child Support or Alimony Payments? Florida permits courts to modify child support and alimony payments if the financial situation of the payor experiences a “substantial change in circumstances.” Modifications of child support and alimony orders are considered very serious; however, when the proper circumstances exist, modifications may be granted. To modify child support or alimony payments, you will need to file a petition with the court in the county where the case originated. A “substantial change in circumstances” must exist to warrant a modification of any existing child support or alimony orders. The change in circumstances must also be unforeseen. Nationwide, millions of Americans are experiencing substantial and unexpected changes in their financial situation due to COVID-19. Therefore, the inability to pay existing child support or alimony orders due to COVID-19 may warrant a modification. Your income does not need to have changed by any set amount before filing a petition for modification. However, in child support orders, the modification must result in a difference of $50 or 15% (whichever is greater) from the prior existing order. Whatever the reason, losing your job or being furlough for an extended period can have a devastating impact on your financial resources. The responsible thing to do in these situations is to evaluate your ability to continue to make child support and alimony payments in the same amounts that were determined in the past. Family Law Attorney Holly Derenthal What Is the Process for Seeking a Modification? Requests for modification of child support are likely to be granted if the modification serves the best interests of the child or children. Your supplemental petition to modify child support outlines the basic details of the case, specifically the purposes and facts surrounding the request for modification. Due to COVID-19, some counties may have closed their courthouses to non-essential hearings. Determining whether your situation qualifies as an emergency requires the review and support of an experienced family law attorney. How Can BrewerLong Help Me Modify My Support Obligations? Each county in Florida has different local requirements for a petition to modify child support or alimony payments. The process can be confusing, further complicated by the stress and uncertainty in the time of COVID-19. In Orange County, legal services are considered an essential business. BrewerLong attorneys continue to work in the office without interruption in serving client needs. Contact BrewerLong to learn more about your options for modifying your child support or alimony orders in the time of COVID-19. 

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 Chad’s Chairs would then register 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 in Florida 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 Florida 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…