Joe Longfellow presents Metrics, Technology and Professionalism CLE for FDLA's winter series
Joe Longfellow was invited to present the CLE "Metrics, Technology and Professionalism" for the 2021 FDLA Winter Meeting in Breckenridge, Colorado. This CLE was prerecorded via Zoom. He spoke on the various metrics law firms should be tracking, the technological tools available to measure metrics and the professional responsibilities partners owe their associates, firms and clients. This CLE will provide lawyers with ideas on how to better track metrics, what data they can use to appeal to new clients, how to use the data they already have, and how to incorporate more technology into their practice to better server their clients. Take an opportunity to attend this great event either in person or virtually. It will be well worth your time. FDLA has put together a great schedule of beneficial CLEs, and this is just one of them. You can contact Joe Longfellow at jlongfellow@andrewscrabtree.com if you have further questions on this CLE, FDLA or how he can assist you with your legal issue.
There's no place like home – workers compensation claims in the world of remote working
Over the past six months, many of us have been forced into a proverbial nosedive into the work from home world. While we have mastered the art of the Zoom ensemble, dabbled in elementary education, and traded colleagues for furry, four-legged companions, the telework debacle has opened up a new spectrum of legal questions centered around remote working–namely, worker's compensation. Does worker's compensation insurance have to cover an employee injured under the conditions of their own home?
Good news for employers, the First DCA provided an answer in the 2019 case, Sedgwick CMS v. Valcourt-Williams.Tammitha Valcourt-Williams had a work-from-home arrangement as a workers' compensation claims adjuster for Sedgwick. Valcourt-Williams was working from home one day, when she went downstairs for a cappuccino. As she reached to get a cup, she fell over one of her dogs, injuring her knee, hip, and shoulder. As irony would have it, she subsequently filed a workers' compensation claim.
Under § 440.09(1), Florida Statutes, employers must provide workers' compensation benefits when employees sustain injuries from accidents “arising out of work performed in the course and the scope of employment.” The “course and scope of employment” means in the period of employment, in a place where the employee would reasonably be, and while fulfilling the employee's duties.
Sedgwick agreed Valcourt-Williams's injuries occurred in the course and scope of her employment because she “would reasonably be” in her home working at the time of the accident and her coffee break was a permissible “comfort break”. However, Sedgwick denied the claim, contending that the injuries did not arise out of the employment because the employment did not subject her to an “increased risk of injury particular to that employment”. Despite Sedgwick's argument, the Judge of Compensation Claims determined the injury was compensable because Sedgwick “imported the work environment into the claimant's home and the [c]laimant's home into the work environment.” Sedgwick appealed.
The relevant question is whether the employment—whether it be in home, office, or elsewhere—“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury.” The First DCA found the risk of Ms. Valcourt-Williams tripping over her dog while reaching for a cup of coffee in her kitchen existed at home whether she was working or not, existed before she worked for Sedgwick, and would exist after her employment with Sedgwick–so long as she had a dog. Thus, the First DCA held the risk did not arise out of the employment and reversed the lower court's determination that the injury was compensable.
Employers need to understand the law and the effects of having their employees work from home. The attorneys of Andrews, Crabtree, Knox & Longfellow stand ready to advise employers as they face new realities brought on by COVID-19.
Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019), reh'g denied (May 30, 2019), review denied, SC19-1044, 2019 WL 5546111 (Fla. Oct. 28, 2019).
Liability Tips for Employers during Covid-19
Over the last several months the Covid-19 pandemic has shut down many businesses across the country-slowing down the world's entire economy. However, with decreases in the number of cases and government mandated safeguards, businesses are re-opening again all over the country. Before you reopen your business, you should consider what steps you need to take to minimize employer liability when your employees return to work. Despite a lot of uncertainty, there are a few easy steps that employers can take to protect their employees and protect themselves from potential liability during the Covid-19 crisis.
Few things make employees more anxious than a lack of information from management. Some events necessitate providing as much information to your employees as possible, to help keep morale high and risk of liability low. First, if you have put new procedures in place, like requiring a temperature check or offering telecommuting options, draft clear and easy-to-understand guidance and provide it to all employees. Communicate clearly when policies and procedural changes will take effect. Second, if an employee tests positive for Covid-19, let employees know that someone has tested positive for Covid-19 and explain what steps you are taking to sanitize necessary areas and limit additional exposure. (See the CDC's Guide for Cleaning and Disinfection here: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html). Conduct contact tracing and notify employees who have been in close contact with the employee who tested positive. Lastly, assure employees that you care about their health and safety, and remind them of all the measures you are taking to make the work environment as safe as possible.
Screenings such as a daily temperature and symptom check can help identify individuals who may be infected before they come into contact with co-workers. This can be easily accomplished with a no-touch thermometer and a few simple questions. If an employee has a fever or is exhibiting symptoms of Covid-19, they should go home until they are well. You should also encourage employees who are not feeling well to stay home, even if they don't believe they have been exposed to Covid-19. Keep an eye on the CDC's Travel Health Notices (https://wwwnc.cdc.gov/travel) and ask employees who have traveled to destinations with particularly high risk of Covid-19 to stay home as much as possible, and implement other safety measures such as wearing a mask, monitoring symptoms, and distancing at least six feet when staying home is not an option.
When feasible, appoint a member of your organization to spend time staying up to date on state and local regulations, and assure that your organization is in compliance. If you do not already have a compliance team, call one of our experienced attorneys at Andrews, Crabtree to help make sure you are up to date with current mandates and regulations related to Covid-19 policies and procedure, and to ensure compliance with the ADA, ADEA, FMLA, FLSA, and FFCRA. Stay on top of best practices and guidance from the CDC (https://www.cdc.gov/coronavirus/2019-nCoV/index.html), EEOC (https://www.eeoc.gov/coronavirus), OSHA (https://www.osha.gov/Publications/OSHA3990.pdf), and other state and local health authorities. Of course, if you have a question, ask! We are all in uncharted territory. Gathering information and staying up to date is an important step in protecting the health and safety of your employees and protecting yourself from liability. Reach out to your local health authority or the Florida Department of Health (https://floridahealthcovid19.gov/) when appropriate.
If you would like assistance shielding your business or organization from liability, feel free to reach out Andrews, Crabtree, Knox & Longfellow. We are a team of experienced advocates and advisers who are here to help with any labor and employment needs that may arise, during Covid-19 and beyond.
Riley Landy joins Andrews, Crabtree, Knox & Longfellow
Andrews, Crabtree, Knox & Longfellow, LLP adds its 7th attorney with the addition of Riley Landy. Riley is a 10-year lawyer with a wealth of experience in litigation. She has extensive experience dealing with civil rights litigation, employment law, general liability and representing state agencies. She comes to the firm from the Florida Department of Health, where she served as the Chief Legal Counsel and Ethics Officer. Riley is a member of DRI, FDLA and the labor and employment section of the Florida Bar.
Understanding the Families First Coronavirus Response Act (FFCRA)
Helping employers understand the FFCRA in plain English
I. Introduction
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law, effective April 1, 2020. The FFCRA incorporates several other federal labor and employment regulations by reference and contains several provisions aimed at mitigating the catastrophic effects of the current health pandemic on Americans.
The FFCRA contains provisions concerning emergency preparedness and response to coronavirus, nutrition waivers, an Emergency Family and Medical Leave Expansion Act (EFMLEA), emergency unemployment insurance stabilization and access, an Emergency Paid Sick Leave Act (EPSLA), certain health provisions, tax credits for employers who pay sick and family medical leave to employees, and budgetary effects.
The FFCRA requires employers to conspicuously post an approved notice of employees' rights. The Notice will look similar to other federal labor law posters you should already conspicuously displayed in your workplace. It will be created by no later than April 8, 2020 and circulated thereafter.
An employee's rights to paid and unpaid leave, and an employer's obligations under the FFCRA, are critical for employers to understand to avoid the wave of lawsuits that are certain to follow. These rights and obligations are contained in the EFMLEA and EPSLA provisions of the FFCRA.
First, employers need to know whether these two provisions of the FFCRA apply to them. Both of these provisions apply to all public employers, and to private employers with fewer than 500 employees.
Private employers with less than 50 employees may be exempt from these two provisions of the FFCRA only, if they can establish that compliance with these provisions “would jeopardize the viability of the business as a going concern.” In other words, if compliance would bankrupt your business with less than 50 employees, you may be exempt from these provisions.
II. Lack of childcare
The EFMLEA provision will be important for employees who have minor children whose school or care provider is closed, or unavailable. The Act expands upon the Family Medical Leave Act (FMLA) which permits qualifying employees to take up to 12 weeks of unpaid, job protected leave. An employer need not pay an employee who requests leave under the FMLA, but it must hold their job for up to 12 weeks. The FMLA applies to employers with 50 or more employees.
The EFMLEA is effective from April 1, 2020, to December 31, 2020, and will also apply to businesses with less than 50 employees, unless exempted. The EFMLEA applies to employees who have been employed more than 30 days.
The EFMLEA entitles employees who are “unable to work (or telework)” due to a need for leave to care for a minor child of the employee if the school or place of care has been closed, or the childcare provider of such child is unavailable, due to a public health emergency. The legislative intent of the act is clearly to protect employees' jobs when they are forced to take off due to lack of childcare as a result of coronavirus.
Once a qualifying employee requests leave under the EFMLEA, the employer is not required to pay the employee for the first 10 days unless the employee elects to use other paid leave, such as sick or vacation leave. However, for the remaining 10 weeks, an employer must pay the employee no less than two-thirds (66.67%) of their regular rate of pay (up to $200/day and $10,000 total).
Upon the expiration of the 12-week period, an employer must restore the employee to their position unless a very limited set of circumstances apply.
III. Paid Sick Leave
Under the EPSLA, an employer must provide an employee paid sick time if the employee is unable to work due to Federal, State, or local quarantine order related to COVID-19, the employee has been advised by a healthcare provider to self-quarantine due to COVID-19 concerns, the employee is having symptoms of COVID-19 and seeking a medical diagnosis, the employee is caring for someone subject to quarantine, the employee is caring for a minor child whose school or care provider is closed or unavailable due to COVID-19.
Healthcare providers and emergency responders may be exempted from the Act if their employers so chooses, because they are on the front lines and we need them to keep working.
Under this provision, the employer must pay the employee for two weeks of work (80 hours for full time employees, or the regular weekly amount for part time employees).
IV. Conclusion
Reading these provisions in unison with one another, employees who need off for the reasons under the EPSLA shall be paid for two weeks. After this period, the employee may then take another 12 weeks of job protected leave under EFMLEA. During the first 10 days of EFMLEA leave, an employer need not pay the employee unless the employee uses another form of personal leave (vacation, sick, etc…) and for the remaining 10 weeks, the employer must pay the employee two thirds of their regular rate of pay and must hold their job for the duration of the period.
The penalty for an employer who willfully discharges, disciplines, or discriminates against an employee who exercises their rights under this Act is harsh. An employer may face fines, imprisonment, mandatory reinstatement of the employee to their position, payment for lost wages, and most importantly attorney's fees and costs. This means labor and employment attorneys will be hungry for these types of cases, because even if they get a penny for the employee, they can recover all their attorney's fees and costs from the employer.
For these reasons, it is critical to consult with a labor and employment attorney on specific issues which arise under the FFCRA before it is too late. Several clients have reached out to us for advice and counsel during these difficult times. The attorneys at Andrews, Crabtree, Knox & Longfellow, LLP are well-suited to address your businesses concerns as they relate to this rapidly evolving pandemic. Best wishes and be well! We're here if you need us.
Florida Legislature looking to change the Amount of Medical Expenses a plaintiff can present to a Jury
The Florida Legislature is in session for 2020, and a senate bill is working its way through the committee process. The Florida Senate Judiciary Committee is reviewing a proposal to add language to § 768.042, Florida Statutes, that is intended to limit the amount of medical expenses that can be presented to a jury. SB 1668 is a proposed bill to limit or address the issue of phantom damages regarding past, present and future medical expenses awarded in personal injury cases.
Currently, a claimant or plaintiff is permitted to introduce the total cost of past or current medical expenses even if that is not the amount that was actually paid by the insurance company or the patient. For example, if a medical bill was originally $1,000.00 but the insurance carrier only paid $500.00, the claimant or plaintiff can present the entire $1,000.00 to the jury and the defendant can ask for a $500.00 set-off after the trial if the claimant or plaintiff prevails at trial. The benefit for the claimant or plaintiff is that the medical expenses look like they are higher than they really are and if there are higher economic damages, then the jury will award higher noneconomic or general damages, generally speaking. Most people suggest that a jury awards noneconomic or general damages equal to 3-5 times the amount of economic or special damages. The difference of the charged medical expenses from the actual incurred medical expenses after contractual write-offs and agreements is considered the “phantom damages” or amount. As for future damages, the jury is to accept the proposed amounts of medical expenses and not consider whether there will be insurance to cover those damages. The usual and customary charges are often based on medical providers testifying to the full amount charged and not the reduced amount charged when someone has insurance. These new additions to § 768.042, Florida Statutes, are intended to address or correct those issues regarding medical expenses. Those supporting this amendment have argued passing this bill will consequently lower the insurance costs and make Florida more business friendly.
Under the proposed amendment to § 768.042, Florida Statutes, the senate is proposing to add the following language:
"In any claim for damages relating to personal injury to a claimant, evidence regarding the past, present, or future medical expenses must be based on the usual & customary charges in the community where the medical expenses are, or are reasonably probable to be, incurred. With respect to past and present medical expenses, if the claimant is entitled to be reimbursed through any public or private health insurance or government health coverage, the amounts paid or payable under the insurance or governmental health coverage shall be presumed to be the usual and customary medical charges, unless the claimant shows that such amounts are inadequate under the circumstances. With respect to damages for future medical expenses, evidence of the availability of private or public health insurance coverage may be considered along with other relevant evidence. Usual and customary charges may not include increased or additional charges based on the outcome of the litigation."
The Senate is proposing this bill be effective July 1, 2020 if it is passed in both chambers. This bill would likely have a positive effect on minimizing the damages awarded in personal injury cases in Florida courts. This bill is an effort to implement tort reform to alleviate some of the financial burdens created by higher legal settlement and jury verdicts from “phantom damages” on Florida businesses.
The attorneys at Andrews, Crabtree, Knox and Longfellow will be following this bill during the 2020 session so they will be prepared to advise clients on the effects of this new language if it passes in the Florida Legislature.
Florida 3rd DCA re-affirms constitutionality of Med Mal Arbitration Caps
On December 18, 2019, the Florida Third District Court of Appeal in Poole, M.D. v. DeFranko, 2019 WL 6884501 (Dec. 18, 2019), affirmed the constitutionality of the noneconomic damage limitations set forth in the medical malpractice arbitration statutes—Fla. Stat. §§ 766.207 and 766.209. In those sections, the Florida Legislature limited the damages in medical malpractice cases where a presuit offer to arbitration is either accepted or rejected.
Under Fla. Stat. § 766.207, if arbitration is accepted, then there are limits set on the amount of damages that can be awarded to the claimant. For example, only 80% of wage loss and loss of earning, minus any collateral source payments; and punitive damages cannot be awarded. The more controversial limitation is the noneconomic damage limitation. If an offer to arbitrate is accepted, then noneconomic damages are limited to $250,000 per claimant and is calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that he claimant's injuries resulted in a 50-percent reduction in his or her capacity to enjoy life the ward would not be more than $125,000.
However, a party cannot be forced to accept an offer to arbitrate. If the defendant rejects a claimant's offer to arbitrate, then the noneconomic damages are subject to the limitations set forth in Fla. Stat. § 766.118. If the claimant rejects an offer to arbitrate, then noneconomic damages are limited to $350,000 per claimant.
In Poole, M.D., the Court reversed the trial court's finding Fla. Stat. §§ 766.207 and 766.209 violated the Equal Protections Clause of the U.S. Constitution. The Court started off by recognizing the presumption of constitutionality when reviewing a constitutional provision. It went on to cite the Florida Supreme Court's finding of constitutionality of the arbitration provisions of Chapter 766 in University of Miami v. Echarte in 1993 and the Third District Court of Appeal's re-affirmance of it in 2016 in Alvarez v. Lifemark Hospitals of Florida, Inc. Like the Courts before it, the Third District Court of Appeal re-affirmed the constitutionality of the damage limitations set forth in those sections.
Understanding the benefits and risks of arbitration are important in handling medical malpractice claims. The attorneys at Andrews, Crabtree, Knox & Longfellow are knowledgeable in these benefits and risks and are prepared to answer questions.
Craig Knox and Ross Vickers secure a defense verdict in an employment discrimination case in federal court.
Craig Knox and Ross Vickers secured a defense verdict for a client in a failure to hire case based on a theory of age and gender discrimination. The Plaintiffs argued they were better qualified for the positions they applied for than the other applicants who applied and were hired; hence, they were not hired because of their ages and gender. Craig and Ross argued and presented evidence that the decision to hire the applicants for the open positions, and not the Plaintiffs, was based on several facts--none of which had anything to do with age or gender. The jury was out for about an hour before finding there was no liability. The trial lasted 3-days in federal court before Judge T. Kent Wetherell, III of the Northern District of Florida.
Joe Longfellow, Ramsey Revell and Ross Vickers attend FDLA Law Firm Leaders Summit
FDLAis hosting a Law Firm Leaders Summit in Tampa, Florida for current leaders and emerging leaders in law firms. This Summit has presentations by John Remsen of the The Remsen Group; Stacy Moon, Chair of DRI Law Practice Management; Ross Fishman, Fishman Marketing; Gail Lamarche; Christopher Hopkins; Jon Stewart, Florida Bar President; and others. There are presentations on Client Development, Legal Marketing, Hot Topics in Professional & Cyber Liability; Issues Impacting Law Firms; Small Firm Challenges; and Young Lawyers Marketing Workshop. Andrews, Crabtree, Knox & Longfellow is dedicated to developing its attorneys, even young associates, so their attorneys are prepared to handle the stresses of the practice of law, learn how to be better practitioners and be successful in building their practice.
Employee's Written Statement are Not Always Protected by the Corporate Attorney-Client Privilege or Work Product Doctrine
When can in-house counsel shield employee statements with corporate attorney-client privilege after Nemours II? The answer is simple and intuitive—when the statements are made “in the rendition of legal services.” If the answer is so simple, why did I write an article on it? As the practice of law frequently reminds us, there are several ways to construe simple things.
The Fifth District Court of Appeal (“the Court”) in Nemours Foundation v. Arroyo, 2019 WL 4122102 (2019), recently addressed the meaning of “in the rendition of legal services” as it applies to corporate counsel's attempts to shield employee statements with attorney-client privilege.
As iterated by the Florida Supreme Court, the attorney-client privilege “protects only those disclosures necessary to obtain informed legal advice.” Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1067 (Fla. 2011). While this privilege applies to corporations to promote full and frank conversations between corporations and their counsel, claims of privilege in the corporate context are subjected to a heightened level of scrutiny. S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994).
In Nemours II, parents of an injured child sued Nemours Children's Hospital (“Nemours”) alleging medical negligence after they claimed their child was injured during a procedure. After the procedure, four out of five hospital employees wrote statements on blank pieces of paper that were undated and unsigned, and submitted them to Nemours' in-house counsel. These four statements stated they were prepared “in anticipation of litigation.” The fifth employee submitted a statement on a blank piece paper signed and dated, but a year after the alleged incident and did not contain anything stating it was prepared “in anticipation of litigation.” Each statement bore a comment that it was prepared “in anticipation of litigation.”
During discovery, counsel for the parents and child submitted a request for production that captured the written statements of the five Nemours employees. Counsel for Nemours objected on grounds the statements were prepared “in anticipation of litigation” and were protected under the attorney-client privilege.
The trial court judge in the Circuit Court for Orange County, Florida, disagreed and, after in camera review, ordered the statements be produced after finding they were not protected by the attorney-client privilege. The trial court held the statements were not protected by the corporate attorney-client privilege because they were created shortly after the procedure at issue, stated nothing about attorney involvement, did not mention in-house counsel at all, and did not include any legal analysis. The trial court further held there was nothing contained in any of the five documents in question that indicates a lawyer's involvement, that was in the furtherance of the rendition of legal services to the client, or that they were in response to an inquiry from in-house counsel.
On Petition for Certiorari Review, the Court considered whether by ordering disclosure of the documents, the trial court departed from the essential requirements of the law and created irreparable harm to Nemours such that it resulted in a miscarriage of justice. The Fifth District Court found the trial court did not so depart.
There are five factors a corporation must establish to claim the corporate attorney-client privilege. A corporation must show:
The Fifth District Court of Appeal agreed with the trial court's rationale and findings and reiterated that the employee statements were more like “fact work product”, which had previously been determined to no longer be protected after the passage of Amendment 7. Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5thDCA 2009). There are two types of work product—opinion work work product and fact work product. For those of you who do not practice in the area of medical malpractice, Amendment 7 was passed by votes in the November 2004 Florida general election. Amendment 7 provides patients with a right of access to records of adverse medical incident. Amendment 7 is found in Article X, Section 25 of the Florida Constitution. It is important to understand the nuances of the corporate attorney-client privilege, as it can vary based on the practice area as seen above. The privileges and what areas are protected in the medical malpractice arena varies from other practice areas. The attorney's at Andrews, Crabtree, Knox & Longfellow are well suited to advise our clients of effective means to bring corporate communications within the attorney-client privilege and work product doctrine.