When Employees Die, Who Gets Their Last Paycheck?

This is not the most pleasant topic, I know, but a client recently asked this question after one of their Florida employees was tragically shot and killed.  After doing a bit of research, I was surprised to learn that a Florida statute addresses this question.  It's pretty straightforward, so I'll simply reprint it here:


222.15 Wages or unemployment compensation payments due deceased employee may be paid spouse or certain relatives.
(1) It is lawful for any employer, in case of the death of an employee, to pay to the wife or husband, and in case there is no wife or husband, then to the child or children, provided the child or children are over the age of 18 years, and in case there is no child or children, then to the father or mother, any wages or travel expenses that may be due such employee at the time of his or her death.

(2)  It is also lawful for the Agency for Workforce Innovation, in case of death of any unemployed individual, to pay to those persons referred to in subsection (1) any unemployment compensation payments that may be due to the individual at the time of his or her death.

Telecommuting on the Rise

That's  the title of an excellent Miami Herald article by reporter Cindy Goodman in which I was quoted this morning.   Cindy attended a seminar that my partner Kevin Vance and I gave recently at the City Club in Miami.  We discussed the pros and cons of telecommuting, and also the employment law issues that employers should be aware of before agreeing, or refusing to agree, to a telecommuting arrangement with an employee or group of employees.  Does a request by a disabled employee to work remotely constitute a reasonable accommodation that the employer must agree to to comply with the Americans with Disabilities Act? When is time spent at home waiting for an assignment considered compensable working time under the Fair Labor Standards Act? Is it the employer's responsibility to ensure that the telecommuter is working in a safe environment?  Is an employer responsible for an injury that an employee suffers at home while working?  What should an employer's telecommuting policy say?  These are complex questions that I cannot  answer in a blog post, but if you were unable to attend the seminar, and have specific questions, feel free to email me. 

Telecommuting Seminar - May 12 in Miami

Please join me for this seminar, which my partner Kevin Vance and I will be presenting on May 12.  I hope to see you there.


Employment Law Strategies 
for a Telecommuting Workforce:
A Win-Win for Employees and Employers


Wednesday, May 12, 2010
Registration: 8:15-8:30
Q&A: 10:15-10:30
   The Miami City Club
Wachovia Financial Center
200 South Biscayne Blvd.
55th Floor
Miami, Florida

Presented by EpsteinBeckerGreen Attorneys:
Richard D. Tuschman
Kevin E. Vance


As the economy begins to improve, you could be in danger of losing valuable talent. If you have staff members who commute long-distance, they may be seeking employment closer to home, or they may be lured away by employers that offer flexible scheduling and offsite work arrangements. The Telework Coalition estimates that more than 45 million U.S. workers now telecommute at least once a week.

Unfurtunately, with a remote workforce comes a whole new array of HR headaches, from litigation and safety risks to security and wage and hour issues.  
At this briefing you will learn how to reduce your organization's legal risks while using telecommuting as a way  to keep your star performers. Employment law attorneys experienced in advising employers on managing offsite employees will cover:

Examples of effective telecommuting policies Wage and hour concerns, including tips for managing nonexempt employees in telework arrangements. 

  • - What should your policy contain and not contain?
    - How should employers define telecommuting?
    - How does a telecommuting policy mesh with federal      overtime requirements?
    - What should your policy say about employer- vs. employee-owned equipment?
    - What about proprietary information?
    - What about guidelines regarding reimbursement for expenses incurred by telecommuting workers?
  • Safety issues:
    - What about ergonomic compliance and other safety concerns?
    - How should accidents and injuries be reported?
    - Should employers inspect home offices? What about liability insurance?
  • Security concerns when employees have access to sensitive information from home
  • Discrimination issues to consider when deciding which employees should be allowed to telecommute
  • Disability issues, including how employers can use telecomuting to comply with the Americans with Disabilities Act
  • Supervisory issues, including the importance of keeping the lines of communication open when some employees work offsite
We hope you will join us for this timely and informative briefing.
To register, please click here 
If you have any question about this briefing, please contact 
Anneliese Garcia, (305) 579-3200 or


About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.

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What "At-Will" Employment Means (and Doesn't Mean)

Florida's Second District Court of AppealsIn Florida, absent an employment contract specifying that an employee will be employed for a certain period of time, the employment relationship is "at-will."  This means, generally speaking, that the employee can be fired, or can resign, at any time, for any reason. The employer does not have to have "good cause" to terminate an at-will employee. 

There are numerous statutory exceptions to this general rule.  It  is unlawful to terminate an employee because of the employee's race, national origin, sex, religion, disability, age, or other discriminatory reasons specifically prohibited by statute.  It is also unlawful to terminate an employee because the employee has engaged in protected activity.  Under federal law, this includes engaging in concerted activity with other employees, or complaining about violations of the Fair Labor Standards Act (which governs minimum wage and overtime pay).  Under Florida law, protected activity includes an employee's objection to, or refusal to participate in, a violation of a law, rule or regulation by the employer, or the employee's filing a valid worker's compensation claim. There are other statutory exceptions to the at-will employment rule. This blog post is not intended to cover them all.  Suffice it to say that absent one of these statutory exceptions, employers in Florida are free to terminate at-will employees without having their decisions second-guessed by a court of law. 

But what about compensation, commissions and other benefits that the at-will employee earned prior to termination? Can an employer refuse to pay the terminated employee on the grounds that the employment relationship was at-will? 

The answer is no, and a recent decision by the Second District Court of Appeals illustrates this point. In Patwary v. Evana Petroleum Corp., the plaintiff, Shaifur Patwary, sold a hotel to Evana Petroleum Corporation and its owners ("EPC"), but reached an agreement under which Patwary would manage the hotel for EPC in exchange for a fifty percent share of the hotel's net profits through the pendency of the agreement, and a fifty percent share of the hotel's net proceeds in the event of a sale. When EPC sold the hotel, it terminated Patwary without notice and refused to pay him the proceeds and profits he accrued under the agreement. Patwary sued for breach of contract.

At the trial court level, EPC filed a motion for summary judgment, arguing Patwary's claim was barred because it concerned a breach of contract action brought under an agreement without a definite duration. The trial court agreed and dismissed Patwary's claim.

On appeal, the Second DCA reversed the trial court's decision, holding that "[a]n employer's right to terminate an at-will contract does not entitle the employer to renounce compensation or other benefits that vest while the contract is in force. Quoting the Fourth DCA's decision in J.R.D. Mgmt. Corp. v. Dulin, 883 So. 2d 314, 317 (Fla. 4th DCA 2004), the court noted that it is "only an action for breach of employment that is barred when the contract of employment is terminable at will; other contractual provisions may not be affected by the at-will employment rule."

For Florida employers, the lesson of Patwary is clear:  Despite the fact an employee was employed on at-will basis, the employer must still pay the employee the compensation and other benefits that he earned prior to his termination.  Now, what "earned" means in the case of an employee who gets paid, in whole or in part, by bonuses or commissions, is another issue. But that's the subject of a future post....

Preparing for the Worst: Hurricane Guidance for Florida Employers

The following article is adapted from an article aimed at Texas employers authored by EBG lawyer David Barron.  With hurricane season approaching, it should be of interest to all Florida employers



Hurricanes pose unique human resources challenges for employers with operations in Florida and other states in the Southeastern U.S. According to the Congressional Budget Office, Hurricane Katrina alone wiped out as many as 400,000 jobs. The economic effects of hurricanes have long term consequences on businesses in the region. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods because of damage or loss of utilities. 

Although one can never be fully prepared for such natural disasters, it is important to be aware of the employment laws that may be implicated in such situations. The information contained below may be applicable to other disasters, such as fires, flu epidemics and workplace violence.


Hurricane FAQs


1.      Is there any law that protects employees who are absent from work during or after a hurricane?


Unlike some states, such as Texas, Florida does not have a law which prohibits employers from taking action against employees who refuse to work because of an impending hurricane. An analogous situation was presented in Gillyard v. Delta Health Group, Inc., 757 So. 2d 601, 603 (Fla. 5th DCA 2000). There, the employee of a nursing home alleged that she was terminated in violation of the Florida Whistleblower’s Act because of her refusal to report to work; she claimed that reporting to work would have violated the Governor’s mandatory order to evacuate the county due to severe fires. The court held that the governor's executive order was not a law, rule or regulation as defined by the FWA.


2.      If a work site is closed because of weather, or unable to reopen because of damage and/or loss of utilities, am I required to pay affected employees?

The FLSA requires employers to pay non-exempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay non-exempt employees if the employer is unable to provide work to those employees due to a natural disaster. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.

For exempt employees, an employer will be required to pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use allowed leave for this time.


3.      Is it lawful to dock the salaries of exempt employees who do not return to work when needed after an emergency or disaster?

The DOL considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work. If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from a salary for such absences. However, a deduction from salary for less than a full-day’s absence is not permitted. 


We recommend caution, however, in docking salaried employees’ pay, and suggest you first consult with legal counsel. Moreover, many employers instead require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for non-exempt employees, who must be paid overtime for all hours worked over 40 in a work week.


4.      What are other wage and hour pitfalls that employers should be aware of following a hurricane or other natural disaster?

On Call Time: An employee who is required to remain on call at the employer’s premises or close by may be working while “on call” and the employer may be required to pay that employee for all of his time. For example, maintenance workers who remain on premises during a storm to deal with emergency repairs must be compensated, even if they perform no work, if they are not free to leave at any time.

Waiting Time: If an employee is required to wait, that time is compensable. For example, if employees are required to be at work to wait for the power to restart, that is considered time worked.

Volunteer Time: Employees of private not-for-profit organizations are not volunteers if they perform the same services they are regularly employed to perform. They must be compensated for those services. Employers should generally be cautious about having employees “volunteer” to assist the employer during an emergency, if those duties benefit the company and are duties regularly performed by employees.


5.      Can employees affected by a hurricane seek protected leave under the Family and Medical Leave Act (“FMLA”)?

Yes, employees affected by a natural disaster are entitled to leave under the FMLA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave under the FMLA. Some examples of storm related issues might include absences caused by an employee’s need to care for a family member who requires refrigerated medicine or medical equipment not operating because of a power outage. 



6.      If a work site or business is damaged and will not reopen, what notice must be provided to affected employees?

The WARN Act, a federal law, imposes notice requirements on employers with 100+ employees for certain plant closings and/or mass layoffs. However, an exception does exist where the closing or layoff is a direct result of a natural disaster. Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days notice, the employer must prove that the conditions for the exception have been met. If such a decision is contemplated, it is advisable to consult with legal counsel about the possible notice requirements to ensure compliance with the WARN Act.


7.      Our human resources department has been disrupted, and it may be weeks before things are back to normal—will the government extend any of the customary deadlines governing employer payment for benefits, pension contributions, and other subjects during this recovery effort?

During previous natural disasters, many governmental agencies and entities did extend the deadlines for certain reports and paperwork. Therefore, it is expected that with future natural disasters, the government will provide some deadline extensions, but as with every natural disaster, the government’s response will vary. 

8.      Employees from other states want to donate leave to affected employees in Florida, is this lawful?

Yes. Employers can allow employees to donate leave to a leave bank and then award the donated leave to the affected employees. 




Hurricane and Disaster Preparation Checklist


  •  Identify and notify those employees you believe should be deemed “emergency services personnel” who will be required to work during a storm or evacuation order. Make arrangements for providing these employees with food and shelter. Make sure to have procedures in place for evacuation of these employees in the event the hurricane or other disaster causes the workplace to become unsafe.
  • Identify your “essential employees.” These are employees that you cannot require to be at work during a hurricane or evacuation but you believe are vital to the continued operations of your company. Determine what incentives you can provide these employees to entice them to work during a disaster or to return to work as soon as possible. These incentives can include shelter, hot meals, fuel, as well as arrangements for family members.
  • Establish a contingency plan to address the needs of those employees who may be temporarily living in company facilities during a storm or disaster. Ensure you can provide such necessities as gas, food, and shelter to these employees.
  •  Establish a contingency plan to ensure security of payroll data and the ability to continue payment of wages to your employees if offices are damaged or power is lost. 
  • Review your existing policies to determine how to distribute paychecks to employees who cannot come to work because of weather or lack of power. 
  •  Establish a communication plan. This will include identifying ways to keep the lines of communication open with your employees even if power is out in the local community. Collect primary and secondary contact sources from your employees. Consider establishing a toll-free phone line where employees can obtain updated information regarding the company’s status during an emergency.
  •  Review applicable leave policies and procedures to address and allow for disaster-related leave requests, including how such leave will be treated (i.e. paid or unpaid). 
  •  Formulate a team of decision makers who will have authority to make crucial decisions in the midst of the hurricane or other disaster related to other human resources matters. This team should establish a method of communicating with each other during the hurricane. 
  • Review any existing Employee Assistance Programs and ensure employees know how to utilize these programs during the aftermath. A successful Employee Assistance Program can promote the fast and efficient return of your employees. 
  • Remember to be sensitive to the needs of your employees who have experienced extensive property damage or personal devastation. Always keep in mind that human life and safety trumps all other business necessities.




Florida Employers: Know Your Rights

Employment litigation has boomed in the last 15 years. Statutes such as the ADA and the FMLA have created new rights for employees. Decades-old laws such as Title VII (which prohibits many forms of discrimination) and the Fair Labor Standards Act (which sets the minimum wage and regulates overtime pay) remain popular among plaintiffs’ lawyers and their clients. In fact, the number of Title VII charges is on the rise, and the Southern District of Florida leads the nation in FLSA lawsuits. The cost of litigation has increased as well. Employers can spend $50,000 in attorney’s fees defending even a baseless case. Naturally, you may be skittish about criticizing, much less terminating, your poorly performing employees. And you may be reluctant to ask your employees to sign agreements designed to protect your customer lists and other confidential business information.


Don’t be. In today’s ultra-competitive business environment, you cannot afford to retain poor performers. Nor can you afford to let employees take advantage of your hard work and intellectual property. Sure, employees have many legal rights. But as an employer, you too have rights. Here are just a few:


You have the right to demand hard work. The law does not prohibit you from taking action against employees who are lazy or unproductive. Moreover, you can require employees to work overtime, even weekends and holidays, provided that you pay your non-exempt employees the appropriate overtime wages. (Employees who qualify for the professional, executive, administrative and outside sales exemptions are not entitled to overtime pay.) Weed out your lazy employees, and reward your hard workers with overtime pay if necessary.


▪ You have the right to demand high-quality work and appropriate workplace conduct. Sloppy work product, poor customer service, and arguments with co-workers and supervisors are not legally protected workplace behaviors. Put an end to them through a system of progressive discipline.


▪ You have the right to demand loyalty. Employees do not have a right to solicit business for their own benefit or to set up a competing business while you employ them. You can and should terminate employees who put their own interests ahead of your business.


▪ You have the right to be wrong. Suppose you have reason to believe that an employee is stealing or otherwise not acting in the company’s best interests, but you don’t have conclusive proof. Fortunately the law does not require an employer to act like a prosecutor and obtain proof beyond a reasonable doubt.  So long as you act in good faith and without discrimination, you can lawfully act on your best available information, even if it turns out to be wrong.


▪ You have the right to protect your trade secrets and confidential business information. The Florida Uniform Trade Secrets Act protects against an employee’s misappropriation of trade secrets. But courts often construe the term “trade secrets” narrowly. You should require employees who have access to customer lists, strategic plans, pricing information, financial data, and other confidential business information to sign confidentiality agreements that restrict their use of such information during their employment, and after. Florida law (section 542.335, Florida Statutes) also allows you to require employees to sign agreements not to compete with your business or to solicit your customers for a period of time after their employment ends, provided the agreements are supported by legitimate business interests and are reasonable in time, geographic scope and line of business. 


You may already know what the law prohibits you from doing as an employer. But knowing what the law permits you to do – and doing it – will improve the productivity of your workforce and give you an advantage over your competition.