Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Incivility Yields Two Year Suspension

Posted: March 6, 2014 Filed under: Commentary, Law-Related News

THIS article for the Ethics and Professionalism Committee of the ABA’s Section of Litigation uses recent decisions by the Supreme Court of Florida to illustrate how lapses in professionalism — which were once thought to be gauche but not punishable — are increasingly providing the basis for disciplinary action. Lawyers work too hard to earn the privilege of practicing law to lose it as a consequence of being a cad.

I have represented and assisted lawyers facing investigation and discipline. The process is neither enjoyable nor quick. It can also be expensive. So, if bar disciplinary counsel knock on your door in Florida or Kansas, let’s talk.

New Lawyer Advertising Rules Adopted

Posted: January 31, 2013 Filed under: Case Law, Law-Related News

Today, the Supreme Court of Florida released the long-anticipated decision on The Florida Bar’s proposed advertising rules. If you have not read the court’s opinion, you should. You’ll find it HERE. Justices Pariente and Canady dissented separately; they feel the new rules go to far. In a substantial departure from the prior rules, lawyer websites and information provided upon request are now subject to the advertising rules. They are, at least, exempt from the filing and review requirements.

Agree or not, the fact of the matter is that the rules have been adopted. Noncompliance carries the risk of a grievance and disciplinary proceedings.

Overhaul of FRS Deemed Consitutional

Posted: January 17, 2013 Filed under: Case Law, Employment Law, Law-Related News, Legislation

Today, the Supreme Court of Florida overturned a trial court order that had declared a 2011 law overhauling the Florida Retirement System (FRS) unconstitutional. By a margin of 4 to 3, the supreme court ruled that the Florida Legislature had the constitutional authority to pass Chapter 2011-68, Laws of Florida, which “converted the FRS from noncontributory by employees to contributory, required all current FRS members to contribute 3% of their salaries to the retirement system, and eliminated the retirement cost-of-living adjustment for creditable service after the effective date of the act.” According to a footnote, the changes affect “55 state agencies; 396 county agencies; 67 school boards; 28 community colleges; 185 cities, 6 independent hospitals, 243 special districts (these last three categories include the 26 cities, 5 independent hospitals, and 12 independent districts that are closed to new members as of January 1, 1996); and 12 other public employers not specifically designated.”

The changes, which one of the majority justices described as “a 3% pay-cut in addition to years without cost-of-living adjustments,” were described more dimly by a dissenting justice as “an insufferable and unconstitutional ‘bait and switch’ at the expense of public employees who were members of the [FRS] prior to July 1, 2011.”

Decide for yourself which side has the better descriptor by reading the opinion in Scott v. Williams HERE.

 

 

Potential for Lower Take Home Pay in 2013

Posted: January 11, 2013 Filed under: Commentary, Law-Related News, Legislation

If your take home pay is lower in 2013, it’s probably because the two percent payroll tax cut for employees provided by the the Temporary Payroll Tax Cut Continuation Act of 2011 and the Middle Class Tax Relief and Job Creation Act of 2012 expired at the end of 2012. On a positive note, at least we had a little more money for a couple of years.

Talking About “Obamacare”

Posted: September 12, 2012 Filed under: Commentary, Employment Law, Law-Related News, Legislation, Uncategorized

Thomas Wade Young was recently honored with the opportunity to speak to members of the Central Florida Compensation & Benefits Association regarding the Patient Protection and Affordable Care Act (PPACA) – the law pejoratively or affectionately, depending on one’s viewpoint, as “Obamacare.” The talk was entitled PPACA & SCOTUS: It’s Constitutional. Now What?  The PowerPoint presentation and a list of online resources for further information are available at the following links.

PPACA Presentation Disclaimer-The presentation slides provide only an outline and do not reflect all of Mr. Young’s remarks. The presentation slides are not intended to be a substantive resource and should not be relied on as such.

Online Resources

Estate Planning in the Digital Age

Posted: July 25, 2012 Filed under: Commentary, Law-Related News, Uncategorized

Few people enjoy thinking about death, which explains why so many folks procrastinate when it comes to making and executing plans for the distribution of their estate following their own death. In this article, the American Bar Association raises an interesting question: “What happens to your online accounts, computer files and other ‘digital assets’ when you die or become incapacitated?” Think about it. Then plan accordingly.

“Obamacare” Survives Attack

Posted: June 28, 2012 Filed under: Case Law, Commentary, Law-Related News

In a 5-4 vote, with usually conservative-leaning Chief Justice Roberts casting the deciding vote, the Supreme Court of the United States has affirmed the constitutionality of the Patient Protection and Affordable Care Act, which is derisively or affectionately, depending on one’s perspective, known “Obamacare.” The opinion is HERE. The controversial individual mandate was upheld on the basis government’s third argument – that the mandate is a tax. As the Court notes in footnote 11 on page 44:

Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

The court did, however, restrict the federal government’s power to withhold existing Medicaid funding from states that fail to accept additional federal funds to expand the availability of health care. Seven members of the court agreed in that regard.

The four dissenting justices would have declared the entire Act unconstitutional.

Chief Justice Roberts provides an invaluable lesson regarding separation of powers and the role of courts on page two of the majority opinion. Thalia Burks, my high school civics teacher, lectured the same lesson many, many times.

In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

Decision on Healthcare Will Create Issues

Posted: June 11, 2012 Filed under: Commentary, Law-Related News, Uncategorized

With the U.S. Supreme Court’s anticipated decision regarding the constitutionally of the law known, both affectionately and derisively, as Obamacare expected on or before June 30, many are awaiting anxiously. As with many things in life, the fix isn’t as simple as affirming the law in toto or finding the law unconstitutional in whole. This AP article highlights some of the effects employers, working families, seniors, and others can expect to encounter regardless of the outcome.

11th Circuit Recognizes Retaliatory Hostile Work Environment

Posted: June 5, 2012 Filed under: Case Law, Employment Law, Law-Related News

Yesterday, in Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012), the United States Court of Appeals for the Eleventh Circuit became the last of the Circuit Courts of Appeal to recognize claims for retaliatory hostile work environment. Doing so, wrote the unanimous three judge panel, is consistent with interpretation of the prohibition against discrimination in other contexts and “is consistent with Title VII’s remedial goal and prevents supervisors from deterring protected conduct.”

The court applied familiar rules applicable to hostile work environment claims. “Thus, to be actionable, this behavior must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] . . . to be abusive.” In determining whether a reasonable person could find an environment hostile, courts in the 11th Circuit look at the “totality of the circumstances,” including “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”

The court further clarified that, although separate and discrete acts of retaliation do not establish a hostile work environment claim, “the jury could consider discrete acts as part of a hostile work environment claim.” The justification for this conclusion is that a hostile work environment is, by definition, a series of separate acts that, when viewed together, constitute a single unlawful employment practice.

The full 30 page opinion addresses additional issues as well. Among them: application of the “same decision” defense to the “but-for” standard of causation in a retaliatory hostile work environment claim and whether injunctive relief is available in a mixed motive retaliation case.

Minimum Wage Turns 100

Posted: June 4, 2012 Filed under: Commentary, Employment Law, Law-Related News

Today marks the 100th birthday of the nation’s first minimum wage law in Massachusetts. The state of Washington followed suit in 1915, although evasion of the law was commonplace. Although motivated in large part by a desire to protect women and child laborers from exploitation, minimum wage and overtime laws eventually spread to cover workers of both genders and all ages in most industries.

Despite the noble origins of minimum wage and overtime laws, they were not without controversy. In fact, the U.S. Supreme Court initially declared such laws to be an unconstitutional intrusion on the freedom to contract. Only after President Franklin D. Roosevelt threatened to “pack the Court,” did the Court reverse course and uphold laws imposing minimum wage and overtime requirements. “Change one thing, change everything,” I like to say.

Today, the working conditions that spurred minimum wage and overtime requirements have largely disappeared, at least here in America. But violations of wage and hour laws, especially those requiring payment of overtime compensation, are still common.

I believe most employers, especially small business owners, are good, hard working people. Wage and hour violations are often unintentional. But unintentional violations are still violations that deprive employees of the pay to which they are entitled. Violations can cost employers tens or even hundreds of thousands of dollars in attorney’s fees alone, not to mention the unpaid wages and overtime, plus penalties, owed to employees.

Many violations, both intentional and unintentional, result from the misclassification of employees. For example, an employer may treat an employee as an independent contractor when, in fact, the law treats the individual as an employee. Or an employer may pay a salary to an employee believing that payment of a salary eliminates the obligation to pay overtime compensation. In fact, payment of a salary is only one element of the various tests used to determine whether a particular employee is exempt from the obligation to pay overtime compensation. In addition to payment of a salary above a weekly rate specified by law, the Fair Labor Standards Act (FLSA) requires that employees also have certain primary duties before courts will consider them to be exempt and thus not entitled to overtime compensation.

In short, today’s milestone stands as a reminder that minimum wage and overtime laws exist, exist for a reason, and will be enforced when covered employers fail to satisfy the required elements of the various state and federal laws enacted to promote healthy work environments and a living wage.

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