Allen & Arcadier: Legal Blog

Claiming Dependents on IRS Income Tax Returns

2009-02-12T13:12:00.000-05:00

IRS: Hobby vs. Business

2009-02-01T13:05:00.004-05:00

IRS Income Tax Return Audit

2009-01-14T15:10:00.002-05:00

IRS: Keeping Tax Paperwork

2009-01-01T13:08:00.000-05:00

Violation of Probation (video)

2008-11-24T15:11:00.004-05:00

Attorney Dedra Sibley discusses the criminal law issue Violation of Probation.

What to do if you've been served with lawsuit (video)

2008-11-24T15:04:00.003-05:00

Attorneys Lauren Cooney and Rasha Bakir-Lutfi explain what you need to do if you are served with a lawsuit.

Landlord-Tenant: Self-Help Eviction (video)

2008-11-24T14:48:00.004-05:00

Attorney Rasha Bakir-Lutfi discusses the property law, landlord-tenant issue of (illegal) self-help eviction by landlord.

Driving with License Suspended or Revoked (video)

2008-10-18T10:42:00.000-04:00

Attorney Dedra Sibley discusses the criminal law issue of Driving with License Suspended or Revoked.

What are my options to extend my non-immigrant visa?

2008-10-15T15:08:00.000-04:00

You may be eligible to apply for an extension of stay in the U.S. if your passport is valid for your entire requested period of stay in the U.S. and the following criteria are met:

a. You were lawfully admitted into the U.S. as a non-immigrant;
b. You have not committed any act that would make you ineligible
to receive an immigration benefit;
c. There is no other factor that, in the sole discretion of a USCIS
officer, would warrant requiring you to depart the U.S. prior to
making a re-entry pursuant to the same classification; and
d. You submit an application for an extension of stay prior to the
expiration date on your I-94.

Though it is important to note that not all non-immigrant visas can be extended here in the U.S. You will not be able to extend your stay if you were admitted in any of the following non-immigrant categories as shown on your I-94 and you must leave the U.S. on or before the date your I-94 expires:

C (Alien in Transit)
D (Crewman)
K-1 or K-2 (Fiancé (e) or Dependent of Fiancé (e))
S (Witness or Informant beyond a total of three years)
Q-2 (Irish Peace Process Cultural and Training Program Visitor beyond a total of three years or beyond a total of two years if initially admitted on or after December 10, 2004)
TWOV (Transit Without Visa)
WT or WB (Visa Waiver Program, you would have been issued a green Form I-94W)

Also similarly you will not be able to change to change your non-immigrant status here in the U.S. if you were admitted in any of the following non-immigrant categories listed above and additionally if you were admitted as a:

J-1 (Exchange Visitor, who is generally subject to the two-year foreign residence requirement)
M-1 (Vocational student changing to F-1 or H – if the M training helped him or her qualify for the H classification)
Q-2 (Irish Peace Process Cultural and Training Program Participant, who is subject to two-year foreign residency requirement.)

By Gina Silvestri, Esq.

Driving Under the Influence (DUI) (video)

2008-10-08T10:37:00.000-04:00

Attorney Dedra Sibley discusses the criminal law issue of Driving Under the Influence (DUI) -- also known as Driving While Intoxicated (DWI).

Explanation of Felony and Misdemeanor Charge (video)

2008-09-11T10:51:00.000-04:00

Attorney Dedra Sibley explains the difference between a felony and misdemeanor charge, a criminal law issue.

Is Probate Necessary?

2008-08-15T15:05:00.000-04:00

Florida probate law is governed by Chapters 731 through 735 of the Florida Statutes. Generally, probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses of administration, and distributing assets to beneficiaries. Probate is necessary to pass ownership of the decedent’s assets to the decedent’s beneficiaries. If the decedent did not leave a valid will, it is said that they died “intestate” and probate is necessary to pass ownership of the decedent’s assets to those persons who are to receive those assets under law of the State of Florida. If the decedent left a valid will, it is said that they died “testate” and unless the will is admitted to probate in the Court, it will be ineffective to pass title to the decedent’s beneficiaries. Also, probate is required to finalize the decedent’s financial affairs after his or her death, including payments due to the decedent’s creditors.

Life insurance policies, annuity contracts, individual retirement accounts that are payable to a specific beneficiary and not the decedent’s estate, real property held as tenants by the entirety, to name a few, are not probate assets. The probate court will look to administer the assets of the decedent that were owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at his or her death.

By Gina Silvestri, Esq.

Do I need a written lease?

2008-08-15T14:59:00.000-04:00

The answer depends on the length of the lease agreement. Rental agreements may be either written or oral. The Statute of Frauds applies to a lease agreement that, according to its terms, cannot be performed and completed within one year. This means that if the actual terms of the agreement make it impossible to be performed within one year, e.g. a two (2) year rental agreement, it must be in writing to be enforceable. Though as a matter of precaution to both landlord and tenants, most rental agreements are written because oral agreements can be subject to misunderstandings, open to interpretation and are generally difficult to prove the actual terms. Though the written agreement need not be formal. It can be a simple letter stating the rights and obligations of both the landlord and tenant and must be signed at the very least by the tenant for the landlord to enforce its rights against the tenant.

If the lease is an oral lease and performance of the lease can be completed within one year, Section 83.46(2), F. S. applies as to the duration of the tenancy. The duration will be determined by the periods by which rent is payable (e.g. week-to-week, month-to-month, etc.) and all other terms are interpreted under Chapter 83 of the Florida Statutes.

Though, it is important to note that Florida law requires that notices to and from a landlord must be in writing, even if the rental agreement is oral. If the proper notice requirements are not met as proscribed by Chapter 83 of the Florida Statutes, a party’s rights and/or defenses may be waived under the law.

By Gina Silvestri, Esq.

Can a child support order be modified?

2008-07-15T15:03:00.000-04:00

The law recognizes that an individual’s circumstances may change following a divorce. As such, so too may the circumstances as to the payment and amount of payment of child support as the needs of the child may change as they grow older. Florida law has adopted statutory guidelines regarding the amount of child support a non-residential parent must pay a residential parent. These guidelines are utilized in determining child support by following a straightforward procedure based upon specific calculations relating to the respective incomes of the parents.

Child support must be paid as long as the child is a minor or continues to be either mentally or physically dependent. The failure of a non-residential parent to pay their child support obligations can be quite severe, for example, loss of their state issued driver’s licenses, non-dischargeability in bankruptcy, IRS tax refunds can be intercepted or potential arrest. Though what is important to know is that child support orders can be modified, either upwards or downwards, upon providing proof to the court of any substantial change in circumstances affecting the supported child's welfare or the non-residential parent's ability to pay. Section 61.14(1) (a) (1), F. S. states that “either party may apply” for modification of child support. In addition, under Section 61.14(2)(a)-(k), F. S, the court takes into consideration a series of factors in making its determination to reduce or even terminate a child support order.

By Gina Silvestri, Esq.

Does my company really need an Employee Handbook?

2007-12-07T16:47:00.000-05:00

If you have more than 15 employees, it is careless if you don't have one. Fifteen employees is the threshhold concerning liability regarding discrimination claims. Other benchmarks include 20 employees for age discrimination, 50 employees for Family Medical Leave, and 100 employees under the WARN act.

An employee manual can create many advantages in litigating employment discrimination claims because in the handbook you can clearly ask employees to contact the appropriate individual before a claim is permitted to be litigated. In other words, an employee handbook, if properly constructed can give you additional save guards. These safe guards have been clearly delineated in a Supreme Court Ruling called the Farragher defense, which states that employees normally must give employers an opportunity to cure the discrimination they are experiencing.

Additionally, an employee handbook is a simple way of communicating an employer’s expectations and requirements to employees. While it is best to combine the delivery of the handbook with an oral discussion of key policies, the handbook’s collection of written policies provides employees with a place to go when they have questions. Moreover, employee morale is positively influenced when there is prior notice of what is required and even-handed application of those requirements. It is the presence of written rules and consistent application of them that can help employers prevail on such claims deriving from FMLA, Unemployment Compensation, and Discrimination.

Although in Florida, an employee handbook is not a contract, Courts, and more specifically, Jurors, will generally require the employer to follow its own policies and procedures. As such, don't make policies and procedures you do not intend to follow. Explain to the employee that their job is an "at will job" and make sure you require employees to acknowledge in writing that they have received a copy of the handbook.

In any event, before finalizing your employee handbook, you should have it reviewed by an Employment Law Attorney.

What Constitutes an Adverse Employment Action?

2007-12-04T19:36:00.000-05:00

So, your employer is discriminating against you? Well, to be legally actionable, your employer must take an action against you that is tangible. Granted, tangible means many things to different people. Even Judges across the United States have had many different opinions on what a tangible adverse employment action means. Some Judges have ruled that a tangible employment action included such things as termination or demotion (i.e., actions that affected the employee's benefits). Other Judges have defined it more liberally and concluded that an adverse employment action is any action that targets an employee and creates any disparate treatment. In a landmark June 2006 decision, the Supreme Court in White v. Burlington defined an adverse employment action as any action by the employer that would dissuade a reasonable employee from having asserted a right. This means that any action that is taken by an employer towards an employee may be construed as a legally adverse employment action if it is reasonable to construe it as such (i.e., change in schedule, change in assignments). The end result is that more of these cases will be going to a Jury. This case was definitely a win for employees.

Who is responsible for my FMLA rights if my employer uses a staffing company?

2007-12-04T19:02:00.000-05:00

The short answer is that your primary employer is responsible for your FMLA rights and the secondary employer is simply not allowed to interfere with your rights.

The Courts use different criteria for ascertaining who is your primary or secondary employer. Normally, for purposes of the FMLA, the primary employer is the staffing agency. Astonishingly enough, however, for FLSA purposes, i.e. overtime, the primary employer is the company that the employee provides services for, and not the staffing agency. This is particularly surprising because the FMLA was modeled after the FLSA. However, there is the Code of Federal Regulation that trumps this general rule: 29 C.F.R. 805.106 states that only the primary employer is responsible for providing FMLA leave and that normally the primary employer is the staffing agency.

Hence, if you are owed overtime, go after the employer you provide services for. If your FMLA rights have been breached, go after the staffing agency.

What Constitutes Sexual Harassment?

2007-11-13T15:24:00.000-05:00

There is no hard rule that Courts use to determine what constitutes Sexual Harassment; however, Courts use certain guidelines as well as use a totality of the circumstance test. Generally speaking, the conduct/harassment needs to be more than merely insulting or rude and boorish behavior. The anti-Sexual Harassment laws are not intended to be “general civility codes.” The required standard is to establish that the conduct/harassment was so severe or pervasive that it adversely affected the terms or conditions of the employee's employment. The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct. The latter is primarily a jury issue, if a minimum of bad conduct on the part of a co-worker or supervisor is established.

Certainly, repeated, unwanted touchings in the work place is sexual harassment. Repeated sexual jokes, if offensive, may also rise to the level of harassment.

With co-worker sexual harassment, the employer must be given an opportunity to stop the sexual harassment. This usually means that the employee is required to inform his or her manager or human resources of the offensive conduct in order for the employer to enjoy liability.

With sexual harassment by a supervisor, it gets a bit trickier. If the employer has a direct and appropriate policy and procedure to address sexual harassment by a supervisor, the employee should follow the process; otherwise, the employer may have an affirmative defense against the employee and abscond liability.

Of course, after an employee complains of sexual harassment, and the employer does nothing or, even worse, if the employer retaliates against the employee, then the employer incurs liability, including an additional claim of retaliation under Title VII.