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Miami Business & Commercial Law Blog

Perception of disability can prompt ADA protections

Title I of the Americans with Disabilities Act is a federal law that protects the rights of Florida workers and others around the country with disabilities. It prohibits actions of employers or their agents that could affect the working life of many qualified disabled people.

It is important to recognize that to be a qualified worker under this law, the qualification relates to the specific job in question. In other words, the person must have the necessary skills and aptitude for the job and all other qualifications needed to perform the principal functions of the job. It is not material if the worker requires an accommodation to successfully fulfill the functions of the job, so long as the worker is then qualified.

Break of fiduciary duty

Many corporations in Florida place their trust in another party in order to grow their business. Once an agreement is reached between a company and another person, there should be an expectation of trust. According to Cornell Law School, fiduciary duty is the responsibility of a person who has been entrusted with the care of a business or corporation to act in the business's best interests. The fiduciary may violate the duties of fiduciary trust in a variety of ways, but the primary breaches involve lack of loyalty and care.

A breach of the duty of loyalty involves failure to pursue the beneficiary's best interests. This could involve the fiduciary cheating the business in order to make a personal profit. It could also entail an abuse of power. The fiduciary may be guilty of breach of duty even if the business does not suffer financial loss. Duty of care requires fiduciaries to pursue the company's best interests by doing careful research before making changes which could affect the business. Other areas in which fiduciaries are responsible to their beneficiaries include disclosure and confidentiality. Disclosure ensures that the fiduciaries do not withhold vital information from interested parties within the corporation, while confidentiality requires that they not divulge sensitive information publicly. Fiduciaries should also be expected to perform their duties with wisdom and reasonable skill.

The basics of zoning

Understanding the zoning laws and regulations in Florida is necessary if you are preparing to construct or purchase a commercial real estate property. We at Welbaum Guernsey have experience with this type of construction and can advise you on the details that this type of project entails, including the specific zoning requirements. 

Findlaw states that city officials across Florida want to keep the various districts separate, such as commercial, residential and industrial. By dividing the land into zones for each type, more control can be held over what can be done with the space, ensuring that families are not housed next to busy intersections or industrial lots. In order to build or purchase a property for commercial real estate, you must ensure that the land is zoned for this purpose.

3 important documents to include in your estate plans

When you hear the words “estate plans,” the first thing that may come to your mind is wills. You may already be aware that wills are useful tools to instruct your loved ones on how to distribute your possessions after you die. However, they do not contain much information about your end-of-life care. Many people overlook the fact that estate plans can help to improve their quality of life as they get older. With old age comes declining health and the likelihood of you needing assistance with your daily activities, financial affairs and more. 

You may expect to be in good health until you die. But you should have plans in place to instruct your loved ones on how to handle your affairs and medical needs if you were to unexpectedly fall ill or become injured and unable to care for yourself. Here are three estate planning documents you should have. 

Consequences of a contract breach

Contracts are law-binding documents, and people in Florida who break them can face a number of consequences. A contract breach occurs when one of the parties acts in a manner that contradicts what is written in the document.

According to FindLaw, there are a variety of negative outcomes that can result from a breach.  Some of these include:

  • Lawsuit - the nonbreaching party may sue the business or individual for the contract breach
  • Legal fees - it can cost a lot of money for defense in the case of a lawsuit or mediation
  • Negative reputation - business relationships and reputation in the community may take a hit
  • Punitive damages - although rare, the breaching party may be required to pay costly damages 
  • Contempt against the court - if a court order is not followed, the guilty party may face jail time and/or hefty fines
  • Compensatory damages - the most common outcome

Sexual harassment and employees' rights

Sexual harassment in the workplace has been a long-standing issue in the United States, but the issue of sexual harassment itself is complex and can include more incidents than many might assume. In Florida, the legal system considers sexual harassment a form of discrimination. The United States Equal Employment Opportunity Commission also protects employees from any sort of verbal or physical harassment in the workplace. 

The Florida Department of Management Services provides a handbook on sexual harassment in the workplace. Referring to Title VII of the Federal Civil Rights of 1964 that prohibits employment discrimination based on race, color, religion, sex and national origin, the DMS confirms that sexual harassment is, in fact, a form of discrimination. The handbook then lists the types of sexual harassment, and categorizes two types of harassment through the following: Quid Pro Quo sexual harassment, which occurs when the harasser is in a position of authority and uses that authority for his or her own sexual favors, and hostile environment sexual harassment, in which the harasser exhibits hostile misconduct that unreasonably interferes with an individual's work performance or creates a hostile environment.

When a guardian must be removed

As people age and retire from the workforce, they often move to sunny Florida with a plan to enjoy their remaining years. At times, some people may need a guardian to oversee their well-being. This is often the case if they become less able to mentally or physically negotiate finances and other concerns.

According to University of Miami School of Law, the complicated income tax system, laws involving property, as well as the intricate wealth transfer tax have contributed to an upcoming unprecedented explosion in wealth transfer from generation to generation. The baby boomer age group makes up much of the elderly who have amassed and saved substantial assets in their lifetime.

Things you should know about construction litigation

When you are investing in something as expensive and substantial as a home, office building or other structure in Florida, you need to be sure that everything is done correctly and the edifice will last for years to come. Unfortunately, mistakes made during construction can lead to substantial damage over time. We at Welbaum Guernsey can make sure that the right people are held responsible for the damage and that you receive the compensation you need to correct the errors and restore your building.

There are several things you should know if you feel that poor construction contributed to defects in your property. According to Findlaw, you need to be aware of the most common issues, including structural failure, heating and electrical problems, dry rot, mold and cracks in the floor, wall, roof and foundation. Water problems are also common, with draining proving faulty and improper soil and landscaping leading to damage.

Failed contract negotiations between businesses effect customers

Contract disagreements between Florida businesses can affect the profits of the businesses in dispute. However, such disputes can also affect the customers of one or both enterprises.

An example is seen in the dispute between AT&T’s U-verse and Sunbeam Television Corp., who owns Miami’s WSVN-Fox 7. The effect on customers of one party can be had not just by existing contract breaches but also by the inability of the two businesses to execute a new contract. If the battling companies cannot work out their differences and a contract fails to be born, the consumers may be deprived of expected services they enjoyed before, but will not longer be offered. 

FMLA grants some employees right to unpaid leave

In a complaint recently filed in the Florida 6th Judicial Circuit for Pinellas County, a man claims he was wrongfully terminated by his employer, as reported by the Florida Record. The man alleges that his dismissal constituted interference with leave afforded him under the Family and Medical Leave Act (FMLA) as well as retaliation. The man alleges that he was terminated only after management learned that he had HIV.

According to the United States Department of Labor, FMLA provides unpaid leave for qualifying family and medical reasons in order to facilitate “balance” between “work and family life” for employees. Employers are obliged to clearly post the rights and duties under FMLA in a place where all employees can see. FMLA does not, however, apply to every employer. Only public agencies, local, State, and Federal employers, schools, and private business that employ 50 or more employees are required to provide leave under FMLA. Furthermore, not all employees qualify for FMLA. Certain criteria must be met to be eligible.

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