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This Issue:
• Editor's Corner
• Don't Miss Registering for FASI's 2010 Winter Conference Scheduled January 21-22
• FASI Membership Committee Report
• Labor and Employment Alert: Florida's National Guard Members Receive Enhanced Job Protection
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President's Message
--by Gail Shuffler, FASI President
Lordy, Lordy, FASI celebrated its 40th birthday at the annual conference in July at the always fabulous Ritz Carlton. A good time was had by all with great speakers, good networking and followed by birthday cake and ice cream.
Even though the economy has precluded many professionals from continuing memberships or participation in professional organizations, that does not appear to be the case with FASI. Our attendance and membership numbers have remained stable.
FASI continues to be an excellent forum for contact and input to the State's self insurance arena. Chief Judge David Langham and Workers' Compensation Director Robin Ippolito were speakers at the conference and have agreed to become standing speakers for future FASI conferences.
I would like to personally thank all of our members and service partners who stepped up and helped make this past conference one of our best. Thanks to all speakers, panel participants and our generous sponsors.
Please mark your calendars for the upcoming Winter Meeting whose details are in this newsletter.
P.S. Our website is currently being re-engineered.
Editor's Corner
--by John Darin
Thanksgiving, Christmas, New Year’s Day and before you know it, the FASI Winter Conference. For those of you who have never attended the Winter meeting, it’s a great opportunity to add your input to our planning of next July’s Educational Conference. Whether you’d like to be involved in the golf tournament, selecting speakers, soliciting sponsorships or any other aspect of the July Conference, the Winter Conference is the place to be if you and your company want to be involved. Speaking of golf tournaments, maybe it’s time we had a golf tournament at the Winter Conference. Give me a shout if you’re interested.
Don't Miss Registering for FASI's 2010 Winter Conference Scheduled January 21-22
The Florida Association of Self Insureds' Winter Meeting will be held Thursday and Friday, January 21 - 22, 2010, at the Hilton Altamonte Springs, 350 S. Northlake Boulevard, Altamonte Springs(greater Orlando area), Florida.
We are encouraging all members to attend. This important meeting provides an excellent forum for you to voice your concerns and needs as a member and to offer input on the future direction of our Association. If you already serve on a FASI committee, this is your chance to have direct input on future Association goals and objectives. If you are not serving on a FASI committee, this is an excellent opportunity for you to acquaint yourself with and hopefully become actively involved on a committee that deals with a topic of interest to you. Click here to see the preliminary agenda for the Winter Conference.
To register for this meeting, you'll need to send in the attendance registration form to FASI Headquarters by Friday, January 8, 2010. The registration fee is $95. Please register NOW.
Make your room reservations today! FASI group rate is $ 114 per night plus tax single or double. Cut-off date for guaranteed room reservations is Monday, Dec 28, 2009. Call 800-678-4380 or 407-830-1985 and be sure to ask for the FASI room block.
FASI Membership Committee Report
--by Mark Resler
The 2009 membership drive is behind us and the 2010 renewal process will be underway in October. On the bright side of membership, FASI had more new members enroll in 2009 than we experienced in 2008. This is very encouraging, in that there is still a lot of interest out there in self-insurance. However, overall membership decreased, undoubtedly due to the overall economic condition experienced across almost every industry in Florida and throughout the nation.
As previously communicated, FASI’s focus on membership growth has been to promote renewed interest from the core types of potential members who all share similar interests, that being the self-insured entities, private or public. It is these types of memberships where we have seen the greatest growth in our organization in the last few years. With the growth of the core membership, we expect the carrier and associate membership numbers to follow suit.
The membership committee will be meeting at the winter conference to discuss strategies to increase membership even further. FASI welcomes input from every source, so if you have ideas, please share them with us. If you prefer, your thoughts can be sent to me at mresler@andersoncolumbia.com.
I want thank each and every member for a successful 2009, and I am looking forward to an even greater 2010. Please contact FASI directly at 1-800-226-FASI (3274) if you know of anyone interested in discussing FASI memberships, or pass this number on to the interested party, or refer them to the website www.fasi-fl.org.
Lastly, I want to take a moment to welcome FASI’s new members. Those new members who were mentioned in our most recent NEWSLETTER are italicized.
- Alachua County Board of County Commissioners; Mr. Wade Gillingham
- Alea Alternative Risk; Ms. Susanne Mazzone
- Center for Medicare Set-Aside Administration; Mr. Rafael Gonzalez
- CISS, Inc.; Mr. Tarrence Callins
- Coppins, Monroe, Adkins, Dincman & Spellman, PA; Mr. Michael Spellman
- GlobalOptions Fraud & SIU Services; Mr. Lou Beniamino
- Keen Investigation; Mr. Mike Kuehn
- LYNX – C.F.R.T.A.; Ms. Linda Connell
- Mayo Clininc; Mr. Josiah Pritchard
- Neff & Associates; Mr. Raymond Neff
- Orthopaedic Center of South Florida, PA; Robin Fielding
- Pinellas County Risk Management; Ms. Beth Wininger
- Polk County School Board; Ms. Joy Myers
- RS Medical; Mr. Mike Salisbury
- Taylor, Day, Currie, Boyd & Johnson; Mr. Christopher (Bo) Boyd, Esq.
- Titan Investigations; Ms. Stephanie Mastramico
- Wal-Mart Stores, Inc.; Ms. Mardis DeVore
- Waste Pro of Florida, Inc.; Ms. Jeanie Dubinski
Labor and Employment Alert: Florida's National Guard Members Receive Enhanced Job Protections
--Submitted by Attorney Michael Spellman, Sniffen and Spellman, P.A.
Effective July 1, 2009, Florida’s military affairs law governing employment rights of members of Florida’s National Guard has been amended. This amendment applies to private and public employers and significantly changes the rights and responsibilities regarding the employment of Guard members who have been ordered into state active duty.
The prior version of the law permitted employees with at least 1 year of employment prior to state activation to bring a civil action against their employer if he or she was discharged, reprimanded or had another penalty assessed because of his or her absence as a result of being ordered to active duty. If proven, the employee was entitled to actual damages and attorney’s fees. See § 250.482, Florida Statutes (2008). While the amended law retains these protections, it also contains several important changes of which employees and employers alike should be aware. See § 250.482, Florida Statutes (2009).
More specifically, a National Guard member is now required to promptly notify the employer of his or her intent to return to work following the completion of state active duty service. The amendment also expressly provides for an activated employee to use accrued vacation, compensatory or any similar leave with pay during their absence. The employer, however, cannot require a member to utilize such leave during the duration of state active duty service. Guard members are also now entitled to maintain both (1) the seniority the member had attained as of the date of commencement of active duty, including all the attendant rights and benefits; and (2) any additional seniority, rights and benefits the member would have attained if he or she had remained continuously employed during the period of active service. Finally, an employee may not be discharged from employment for one year after the return to work date, except for cause.
An employer has also obtained several statutory rights under the new law. An employer is not required to reinstate a qualifying National Guard member if it can prove:
- The employer’s circumstances have so changed as to make employment unreasonable or impossible;
- Employment would impose an undue hardship on the employer;
- The employment before activation was for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely; or
- The employer had legally sufficient cause to terminate the Guard member at the time he or she left for state active duty.
Given these substantial changes, employers are encouraged to seek the advice of counsel when contemplating the reinstatement of Florida National Guard members returning from state active duty.
Florida Appellate Court Expands Scope of Sexual Harassment Claims
In a recent decision, the Fifth District Court of Appeal allowed an employee to maintain a hostile work environment claim even though the sexually explicit and offensive language she complained of was not directed toward her. In Blizzard v. Appliance Direct, the plaintiff was a female employee who complained that her supervisor was constantly making sexually explicit comments about female employees; discussing his sexual prowess; and “whinnying” when an attractive female would enter the store. While the comments were not directed at the plaintiff, she claimed that the workplace became a hostile environment, and that female employees who “played along” were treated more favorably than those who did not.
The plaintiff did not make many complaints, but did bring the matter to the attention of two other supervisors. The day after she spoke with an employee in human relations, she was either terminated or quit (the matter is in dispute).
The Fifth District, relying on a similar Federal court decision involving race discrimination and a hostile work environment, applied this analysis to the plaintiff even though she was not the specific target of the sexually-charged comments and actions of the supervisor. This is the first case of this type in Florida, and could lead to a sharp increase in hostile work environment claims because it has imbued a new class of litigants with a potentially viable claim.
Department of Labor Q&A Session Provides Answers to Employers with 401(k) Plans
The American Bar Association’s Joint Committee on Employee Benefits (JCEB) has posted information regarding a recent Q&A session with staff members of the U.S. Department of Labor. The remarks provided to the JCEB are unofficial and non-binding, but do include guidance on 401(k)-related plan topics such as: uncashed checks and unresponsive participants, plan audits, and class action lawsuits. The full test of the Q&A session may be found on the ABA’s website at: http://www.abanet.org/jceb/2009/DOL2009.pdf.
Employer Options for Reducing Labor Cost
With the recent downturn in economic conditions, many employers are searching for options to reduce overhead costs. Typically, labor constitutes a significant portion of these now daunting figures. More than ever, furloughs are being utilized to offer relief to employers’ pockets while avoiding the harsh option of termination. In addition, employers are making changes to the traditional Monday through Friday, 8:00 to 5:00 work week. While furloughs and alternative work hours serve as a palatable option for all, employers must be mindful not to violate the Fair Labor Standards Act (FLSA).
The U.S. Department of Labor provides answers to common employer questions with regard to the use of furloughs and other cost-cutting labor methods at: http://www.dol.gov/esa/WHD/flsa/FurloughFAQ.pdf. These frequently asked questions provide guidance for both exempt and non-exempt employee regulations under the FLSA, as well as answers to questions regarding meeting payroll. Employers should note that employment actions affecting employee wages often have implications not only under the FLSA, but also under other anti-discriminatory laws.
Florida Non-Compete Agreements
On July 30, 2009, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Proudfoot Consulting Company v. Gordon, 2009 U.S. App. LEXIS 17057, No. 08-14075, (11th Cir. 2009) that heavily addressed Florida’s non-compete law. For background purposes, Florida’s non-compete law is set forth in section 542.335 of the Florida Statutes. The statute contains a comprehensive framework for the enforcement of restrictive covenants. Although not an exhaustive list, the following are components of enforceable non-compete agreements:
- Must be reasonable in time, area, and line of business;
- Must be in writing and signed by the person against whom enforcement is sought;
- Must contain one or more legitimate business interests justifying the restrictive covenant; and
- The contractually specified restraint must be reasonably necessary to protect the legitimate business interest or interests justifying the restriction.
With respect to the Eleventh Circuit’s decision in Proudfoot Consulting, the Court confronted several issues related to non-compete agreements that warrant consideration for employers. First, the Court discussed the reasonableness of a non-compete agreement’s geographic scope. Proudfoot Consulting explains that courts can imply a reasonable geographic scope if the agreement is silent as to geographic limitations. Additionally, the Court addressed the reasonable belief defense. In addressing this defense, the Court articulated that an employee’s reasonable belief as to the scope of a competitor non-compete agreement “does not grant him a license to work for a competitor in violation of the [a]greement.” Essentially, an employer can still enjoin an employee’s ability to work for a competitor under these circumstances. The Court also discussed broad non-compete agreements and expressed concern over whether a “broad competitor non-compete covenant, which bars [the employee] from working for a competitor irrespective of which clients he is serving, would be reasonably necessary to protect [the employer’s] interest in the relationships that [the employee] developed with its clients.” Finally, the Court addressed damages and emphasized that damages are proper when the former employer can 1) prove its loss and 2) prove that the lost profits were “a direct result” of the employee’s breach of the non-compete covenant’s non-solicitation clause. The Court explained that damages for breaching a non-compete are not designed to punish employees; rather, damages are designed to make the prior employer whole.
If you have questions or comments about the FASI E-Newsletter, please contact: Bill Kautter at bkautter@kmgnet.com (800-226-3274) or Newsletter Chair John Darin at jdarin@znoskoreas.com.
Please note that letters and comments sent to the publisher are automatically considered for use in upcoming issues unless you expressly request that they not be used. You may request that you remain anonymous in the case that your letter or comments are used. We reserve the right to edit for brevity and/or clarity.
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