Happy New Year!  Notwithstanding that Cannabidiol (“CBD”), in various forms, has been for sale in Florida for years, 2020 is bringing new Florida rules and regulation to that marketplace.

Starting in January 2020, Florida’s Department of Agriculture now has the power to regulate and inspect CBD  products and wholesale and retail facilities that prepare and/or sell prepackaged food consisting of or containing hemp extract, which includes CBD or other cannabinoids, to the end consumer or that sell that product to other businesses.

As explained by Florida’s Department of Agriculture:

“Prior to these rules being adopted and taking effect, we didn’t have regulatory authority. Now we do, and we have that up and going so that we can make sure consumers are protected.”

The new Florida regulations cover issues such as “pesticides, how packages are labeled and the inspection of products sold or produced in the state.”

Any business, online or brick and mortar, that sells CBD for ingestion must have a license and are subject to inspection and testing of their products.  CBD products, under the regulations, must limit cannabinoids to total delta-9 tetrahydrocannabinol concentration of less than 0.3% on a dry weight basis.

There is a “three-strike rule” for non-compliance:  first offense – written notice; second offense – $10,000 fine; 3rd offense your business will be prohibited from selling CBD.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I was listening to NPR this morning, and they had a news story about more and more employers telling smokers that they “need not apply.”    These nicotine based employment hiring bans include government employers and private employers.

I posted about this topic all the way back in 2013.  Listening to the news this morning peaked my interest, so I went back to check my prior blog post and to determine if its still legal to not hire smokers in Florida.   This is what I found in 2013.

So, is the ban on hiring smokers a legal one?  First, there is no Federal law that protects smokers or entitled them to equal protections in hiring. Second, state laws vary as to whether an employer can restrict off duty use of tobacco. But, here in the Sunshine State, there is no state law that provides protection for candidates applying at smoker free workplaces.

In fact, all the way back in 1995 the Florida Supreme Court upheld a City of North Miami policy requiring job applicants to swear they have not smoked cigarettes within the past year (see The City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995).

In Kurtz, Arlene Kurtz applied for a clerk-typist position and said she could not sign the affidavit, required by the City as part of its application process, that she was a nonsmoker.  The City interviewer told her that if she was not smoke-free for at least a year before applying with the city, then she would not be considered for the job.

A lower court had ruled that the policy was unconstitutional.  But, by a 5-2 split, the Florida Supreme Court disagreed.  Justice Ben Overton wrote in the opinion of the court that smokers do not have a reasonable expectation of privacy about their smoking, as they are “constantly required to reveal whether they smoke.”

However, Overton cautioned that the ruling does not apply to whether employers can require employees to stop smoking once hired, and does not apply to whether employees who signed the affidavit could start smoking or resume smoking.

And, Kurtz remains good law in Florida as of 2019.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Florida statute, F.S. §542.335, governs the enforcement of noncompete agreements that are subject to Florida law. While a “reasonableness” standard is employed throughout the statute, Florida’s noncompete statute is generally considered one of the most employer friendly noncompete statutes in existence. 542.335(1)(g)(1) provides that  “[i]n determining the enforceability of a restrictive covenant, a court shall not consider any individualized economic or hardship that might be caused to the person against whom enforcement is sought.” Additionally,  542.335(1)(h) prohibits a court from employing any rule of contract construction that “requires the court to construe a restrictive covenant narrowly, against the restraint, or the drafter of the contract.” Both of these provisions overwhelmingly favor an employer. 

Because of the lopsided nature of the noncompete statute, courts in several states have refused to enforce it because it is contrary to public policy. See Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364, 34 N.E.3d 357, 12 N.Y.S.3d 606, 2015 N.Y. Slip Op. 4876 (N.Y. 2015) (holding that Florida’s noncompete statute [Fla. Stat. § 542.335] is unenforceable and contrary to public policy in New York because the court cannot consider hardship to the employee and may not construe the statute narrowly against the employer); Unisource Worldwide v. South Central Ala. Supply, 199 F.Supp.2d 1194 (M.D. Ala. 2001) (holding that Section 542.335, Florida Statutes is contrary to public policy in Alabama and consequently unenforceable because court cannot consider hardship to employee); Brown and Brown, Inc. v. Mudron, 887 N.E.2d 437, 379 Ill. App.3d 724, 320 Ill.Dec. 293 (Ill. App. 2008) (holding that Section 542.335, Florida Statutes is contrary to public policy in Illinois for similar reasons); Carson v. Obor Holding Co., 318 Ga.App. 645, 734 S.E.2d 477 (Ga. App. 2012) (holding that choice of law provision in contract in favor of Florida law is unenforceable in Georgia because Section 542.335, Florida Statutes forbids the court from balancing interests of employer and employee when determining enforcement).

In light of the enforcement issues that can arise in foreign jurisdictions, care should be taken when drafting a choice of law provision in favor of Florida in an employment agreement containing restrictive covenants that might be litigated in a foreign court.


W Mason is an partner with the law firm Fox Rothschild LLP.  W focuses his practice on litigating restrictive covenants and general business litigation matters. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

Pleased to announce that Fox Rothschild has published  a “National Survey on Marijuana in the Workplace and Drug Testing Laws,” this state-by-state guide will help businesses navigate complex and sometimes thorny issues regarding medical marijuana use by employees and employee drug testing issues. This survey was prepared by myself and Joseph A. McNelis III.   Joe and I will be working hard to keep this survey updated as the laws change.

See the Survey which is posted at Fox’s In the Weeds.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I’m wearing tights today (temps are in the 60s), so that must mean it might be time for the annual end of the year Florida minimum wage rate change.

As of January 1, 2020, Florida’s minimum wage will rise from the current rate of $8.46 per hour to $8.56.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region.  Based upon this year’s calculation, Florida’s new minimum wage for 2020 will rise by ten (10) cents.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage.  However, the employer must pay tipped employees a direct wage.  The direct wage is calculated as equal to the minimum wage, $8.56 minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.54 as of January 1, 2020.

The photo in this post is of the Sandi Christmas Tree in West Palm Beach, Florida (photo by me).


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

The Marijuana Opportunity Reinvestment and Expungement Act, or the MORE Act — described by its sponsors as the most comprehensive reform bill to date — would decriminalize cannabis by removing it from the list included in the Controlled Substances Act. The bill would also retroactively allow for federal expungement of all past and pending convictions for marijuana possession. States would then set their own policies.
I recently spoke with Miami New Times‘  Kristine Gill about the MORE Act and its potential to impact the Florida medical marijuana business.    See the article for more information.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

In the recent decision of Taggart v. Lorenzen, the Supreme Court held that a court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct.

What does no fair ground of doubt mean?

The Supreme Court has provided some guidance indicating that “civil contempt may be appropriate when the creditor violates a discharge order based on an objectively unreasonable understanding of the discharge order or the statutes that govern its scope.”

As with most laws, ignorance and good faith is not a defense – a creditor cannot be insulated from a finding of civil contempt for taking actions in violation of the discharge injunction if the creditor unreasonably believed that the discharge order does not apply to the creditor’s claim.

The take away?  Consult an attorney well versed in bankruptcy law before pursuing any claims against individuals or entities where you know they filed a bankruptcy.


  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout, foreclosure disputes, preference/fraudulent transfers, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

 

While post-Tiarathe Economic Loss Rule (“ELR”) is limited to products liability cases, the Tiara progeny firmly establish that the independent tort doctrine (“ITD”) is alive and well. In a nutshell, the IDT “is a prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So.2d 532, 536-537 (Fla. 2004).

What happens, however, when an employee of a company who is not a party to the contract between the company and a third-party, is alleged by the third party to have made misrepresentations in the performance of the contract? Does the employee have personal liability for those misrepresentations?

Prior to Tiara, the Fifth DCA answered in the negative and held that “when an aggrieved party is barred by the contractual privity economic loss rule from suing a corporation in tort, it cannot avoid the rule by suing a non-professional employee for their alleged negligence in performing the contract on behalf of the corporation.” Vesta Const. v. Lotpeich, 974 So. 2d 1176, 1181 (Fla. 5th DCA 2008)

Flash forward to 2017, and the Third DCA in Peebles came to the same conclusion in the context of the ITD. Peebles v. Puig, 223 So.3d 1065 (Fla. 3d DCA 2017)(holding that in the context of a misrepresentation claim against an officer/principal of a company that had breached a contract “Florida does not allow a party damaged by a breach of contract to recover the exact same contract damages via a fraud claim”).

There are some pre-Tiara some cases that seem to indicate the contrary result. For instance in Output, Inc. v. Danka Business Systems, Inc., 991 So. 2d 941, 944 (Fla. 4th 2008), the Court stated “Key to this court’s opinion is the fact that [defendant] was not a party to the contract…Had [defendant] been a party to the contract, then [plaintiff’s] claim…would not have constituted a claim for fraud in the inducement, but rather a claim for fraud in the performance. Under those circumstances, the economic loss rule would have barred the claim.” However, Output predates Tiara and contains other distinguishing facts. Specifically, Output concerns a statement made by an employee prior to the execution of the contract that induced the party to enter into the contract. Peebles concerns a statement made by an officer/owner during execution of the contract and is thus a misrepresentation regarding performance.

In 2016, Florida voters passed Amendment 2 which legalized medical marijuana in Florida.  Two years later, employers are adapting to the idea of employees who use medical marijuana under the care of a doctor. 

I recently spoke with Florida Weekly about drug testing policies for Florida employees.  See the article for more information.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.
As the laws involving cannabis use – for both medicinal and recreational purposes – evolve, businesses must figure out how to operate in a changing environment.  I was happy to share my thoughts on managing cannabis use by employees with Area Development.  See the article for more information on this rapidly changing area of the law.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.