Top Nordic Chef!

In a recent New York Times article, the paper discussed how a cofounder of Noma, Mads Refslund, has created a nordic menu at Acme, in NoHo. Working directly under Mr. Fefslund is Joseph Yardley.

Joe is one of America’s top young chefs!

Joe and Carissa

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We Have Moved!

Hot Coffee  Yardley Law has a new home just a few feet from our former office–and we’ve kept the same building letter, so we’re still in Building D! Our new office was designed by our Paralegal and Office Manager, Patty Blankenship.

Mrs. Blankenship is in the Interior Design program at Eastern Florida State College and has used what she has learned to create a warm and inviting space for our staff and clients. We’d love to show you around. Feel free to stop by and say hello. We’ll have the coffee (and chocolate) waiting!

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Just because a worker is salaried, does not mean they are not entitled to overtime pay.

Some employers mistakenly classify their employees as exempt from overtime and deprive employees from these hard earned overtime wages. Sometimes they do it on purpose.

Here’s the deal: Employees that are classified “exempt” are not entitled to overtime wages. Employees’ classified “non-exempt” must be paid overtime wages for any time that exceeds 40 hours in a work week.

Just saying you are being paid a salary unstead of an hourly rate does not decide of you are exempt. There are tests. The Fair Labor Standards Act, which is the Federal law that governs fair pay, outlines 3 tests used to determine whether an employee is exempt or non-exempt under the law:

The Salary Test – The employee must be compensated on a salary basis at a rate at least $455.00 per week to be considered exempt from overtime. The employee is paid on a salary basis if he/she can count on receiving a “guaranteed minimum” amount of money for any week he/she performs work. Employees who earn less than $455 per week should be paid overtime wages.

The Duties Test – What is the actual job tasks an employee must complete? How does the job fits into the employer’s overall operations? Title is just one aspect of the Duties Test, but it is included since it is such a common misconception that the title of “manager” automatically entitles an employer to pay their employees a salary only for all of their work.

The Exemption Test – the employee does not fall under one of the exemptions for overtime under the Fair Labor Standards Act. (Professional Exemption, Administrative Exemption, Outside Sales Exemption, Executive Exemption, Computer Employee Exemption, Highly Compensated Employees Exemption.)

Determining the difference between exempt and non-exempt can be confusing and often takes an experienced employment attorney to analyze the law and the employee’s specific job duties, to determine whether the employee should be compensated for overtime wages. If you are an employer and are worried about how you pay your workers, call me. If you feel that your employer may have misclassified you as exempt from overtime pay, call for the correct legal advice.

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David Stern Disbarred

During the financial crisis, one attorney, David Stern, created chaos in the Florida Court system. That attorney was disbarred today by the Florida Supreme Court.
But, the question needs to be asked, was Stern acting alone, or was he just the fall guy for the big banks of Wall Street. In the current issue of The New York Review of Books, Judge Jed Rakoff of the Federal District Court in Manhattan points out a chilling observation; the banks have been given a free pass for sending the United States, and the world, into a crippling depression.

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I got served with a income deduction for my employee: What do I do?

Florida law provides for income deduction orders which require employers to deduct child support and alimony from the wages of workers. Florida ain’t kidding around. Section 61.1301 Fla. Stat. (2013) provides that if an employer, the payor in the language of the statute, “fails to deduct the proper amount from the obligor’s income, the payor is liable for the amount the payor should have deducted, plus costs, interest, and reasonable attorney’s fees.”

If you get an income deduction in the mail, you should honor it. The order should be carefully reviewed and scrupulously honored. An Employer who gets served with this order and does not honor it, can be hauled into court, made to pay the money and hit with attorney fees.

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“Like” this post.

According to an article in The Atlantic, “in November of 2009, B.J. Roberts, the sheriff of Hampton, Virginia, ran for re-election. A group of workers in Roberts’ office, however, among them one Bobby Bland, weren’t enthused about the prospects of their boss’s continuation in his role. So they took to their Facebook accounts to protest the run: They Liked the campaign of Roberts’s opponent, Jim Adams. Despite the minuscule mutiny, however, Roberts won the election. He then chose not to retain Bland and the others as his employees. The dismissals, Roberts said at the time, were the result not only of budgeting concerns, but also of the workers’ hindrance of “the harmony and efficiency of the office. The sheriff had not liked his workers’ Likes.” They filed suit and, “the suit alleges that Roberts retaliated against the plaintiffs in violation of their First Amendment rights by choosing not to reappoint them because of their support of his electoral opponent.”
The trial court threw out the case. The district court concluded that Carter, McCoy, and Woodward had all failed to allege that they engaged in expressive speech and that Dixon had not shown that his alleged speech was on a matter of public concern.
In the late summer of 2009, Carter and McCoy visited Adams’s campaign Facebook page and made statements on the page indicating their support for his campaign. Specifically, Carter “liked” the page and “wrote and posted a message of encouragement” that he signed. McCoy also “posted an entry on the page indicating [his] support for [Adams’s] campaign.” Carter’s and McCoy’s Facebook actions became well-known in the Sheriff’s Office as many were shocked because “they appeared not to be supporting the sheriff.” Colonel Bowden, who was the second most senior officer in the Sheriff’s Office, learned of Carter’s and McCoy’s presence on Adams’s Facebook Page and informed Sheriff Roberts.
The Sheriff angrily approached Carter and “ma[de] several intimidating statements.” He then added, “You made your bed, and now you’re going to lie in it – after the election, you’re gone.” Sure enough, he was.
The trial court did not think that “liking” on Facebook was expressive activity. “‘Liking” on Facebook is a way for Facebook users to share information with each other. The ‘like’ button, which is represented by a thumbs-up icon, and the word ‘like’ appear next to different types of Facebook content. Liking something on Facebook ‘is an easy way to let someone know that you enjoy it.’” The Circuit Court disagreed. “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
“In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” The claims of the three deputies who had engage in political speech were upheld. The District Court was reversed and the case sent back for trial.

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Family and Corporate Litigation Cases decided.

There were only two interesting cases decided by the Fifth District, one a family law decision, the other a piece of corporate litigation.
In the family law case, Moore v. Moore, the court reversed a child support determination because the court allowed the child support payor to deduct IRA contributions from his income. In order to get a matching contribution the payor paid money into the IRA. This is not an allowable deduction under §61.30(3), Fla. Stat. (2012). “These payments,” said the court, were “voluntary contributions (albeit for valid and beneficial purposes) on the part of the Husband.”
The court also reversed on a “bridge the gap” alimony issue. The trial court gave an award of bridge the gap alimony, then reduced the award to balance the equitable distribution. This was error said the court. If you need alimony, you need it. It is error to swap equitable distribution money with alimony money. “It would seem to be a matter of common sense that this rule would apply with special force when the alimony at issue is expressly designed to provide immediate funds to the financially disadvantaged spouse with legitimate identifiable short term needs in order to cushion the transition away from being married to being single.”

* * *

The corporate litigation is more complex. But, it does illustrate an important point. Lobbyists keep telling us the legal system is too complicated and reform is needed to get justice for the corporations. However, it seems to me that the big corporations are busy making the system as complicated as they can. Look, for example, at AGIC, Inc. v. North American Risk Services, Inc.
Ellen Novoseletsky was a drone working in the bowels of a law factory. In February of 2011 she was called upon to edit a paragraph of a Managing General Agency Agreement; a task upon which she spent five hours.
There was a lawsuit filed when one of the parties was claimed to have broken the agreement. Then, when one party found out, “Ellen Novoseletsky, a partner at Shutts & Bowen, previously represented IBGA with regard to the drafting of the amended MGA, IBGA moved to disqualify Shutts & Bowen at the same time it filed its answer.” The trial court heard the motion, read affadavits and said, “I think there has to be an evidentiary hearing because there’s no way for this Court to know when you have competing affidavits,” to know who to believe. Inexplicably the judge later entered an order without conducting a hearing. “The judge’s first instincts were correct.” The District Court gave a full, seven-page, explanation of the law on disqualification.
What baffles me is what is the point of this litigation. What could Ms. Novoselstsky possibly have learned in her five hours of paper shuffling? She did not even know that the lawsuit had been filed, and Shutts and Knight built a Chinese Wall to keep her out of the case. How much money was spent litigating this issue? Anyway, there will be a new hearing before Judge Nelson in Sanford where she will get to examine this exciting issue. I’m sure this has done a lot to resolve the litigation.

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