When running a business, it is important to have procedures and policies in place to protect yourself from legal trouble. One way to do this is to create an employee handbook. A well-written employee handbook can set clear expectations for your employees, helping you avoid misunderstandings and potential legal issues down the road. However, not all employee handbooks are created equal. In order to be effective, an employee handbook must be well-written and tailored to the specific needs of your business.

What Is an Employee Handbook?

An employee handbook is a document that outlines your company's policies and procedures. It should be given to all employees so that there is a clear understanding of what is expected of them. The handbook can also include information about your company's culture and values.

Originally published: August 21, 2020 -- Updated: September 8, 2022

Update: In addition to considering the issues described below regarding how a business will be structured and managed, it is also important to consider how a business's structure will affect taxation. Different business entities are taxed in different ways, and business owners will need to be aware of the implications of each different business entity before settling upon one that they think fits best. 

 Business contracts are used to protect the rights and interests of one or both parties involved in an agreement and non-disclosure agreements are one of the most commonly used types of contracts. NDAs provide a business with protection by ensuring that proprietary information such as trade secrets, information about a company's finances, or other sensitive information will not be released to the public, made accessible to competitors, or otherwise used against them. Individuals and organizations that use these agreements need to be aware of the laws that address restrictive covenants, when an agreement may be enforced, and the options they may have for protecting themselves.

Terms That May Be Included in an NDA

A non-disclosure agreement typically states that a party that receives confidential information about a business has the duty to keep this information confidential and prevent it from being released to others. An NDA may be mutual or non-mutual. Mutual agreements may be used in contracts involving two businesses or organizations, ensuring that each party will maintain confidentiality and avoid releasing sensitive information about the other party. Non-mutual agreements may be used in employment contracts, preventing an employee from releasing confidential information about a company either during or after their employment.

A company may take multiple approaches when identifying confidential information that is covered by a non-disclosure agreement. These include:

Businesses will create contracts in a number of different situations, and it is important to make sure the terms of these agreements will provide them with the protection they need. Addressing potential issues when initially drafting a contract or negotiating terms with the other party can save a great deal of difficulty in the long run. With the help of a business law attorney, a company can ensure that it will be able to identify and resolve any concerns while avoiding problems that could lead to financial losses in the future. Some issues to watch out for during the contract drafting and negotiation process include:

1. Ownership of work performed - Contracts should specify who owns the work product created pursuant to the agreement. If this is not addressed, the company that paid for work may find that it does not have the rights to use or sell the work performed, or a person who performed work may lose the ability to claim ownership of what they created.

2. Terms of payment - The contract should address when and how payments will be made. This can include specifying the amount of each payment, the date when payments are due, and what type of payment will be used. In many cases, a contract will state that a down payment will be made at the outset of the project, and regular payments may be made while work is being performed.

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There are many types of disputes that may affect a business, and determining the best ways to resolve these conflicts can sometimes be difficult. The approach to addressing business disputes may differ depending on whether a dispute is internal and affects a business's partners, shareholders, or employees, or whether it is external and involves the relationship between a business and other parties. 

While resolving a dispute effectively is likely to be the primary goal in these situations, it may also be necessary to maintain important business relationships and avoid ongoing issues. In many cases, businesses will be looking to find solutions that will allow disputes to be resolved without the need for litigation. Mediation, a popular form of alternative dispute resolution, can be one of the best ways of doing so.

Steps Followed During Business Mediation

Mediation is a relatively informal process that allows the parties to work together to find a mutually beneficial resolution to their dispute. Each party may be represented by an attorney during the mediation process. A mediator, who is a neutral third party, will guide the mediation and help the parties to communicate with each other. The mediator will not make any decisions or force the parties to agree to anything, but they will instead facilitate communication and help the parties explore different options as they work to reach their own agreements. This can be an important benefit of mediation, as it allows the parties to have more control over the outcome of the dispute.

There are many situations in which business disputes can arise, and in some cases, these issues need to be resolved through litigation. Disputes involving business partners or shareholders can be especially challenging, especially when they are related to disagreements about the direction or management of a company. Business disputes can also involve claims that a party has acted inappropriately or illegally and caused harm to other partners,  shareholders, or to the business itself. These cases often involve claims that a person has committed a breach of fiduciary duty. When these issues are handled through the legal system, the parties involved in a dispute need to understand the potential remedies that may be ordered.

Legal and Equitable Remedies for Breaches of Fiduciary Duty

A person is considered to be a fiduciary when they are entrusted with the care of property or money on behalf of another person. A fiduciary duty is the legal obligation to act in the best financial interests of the person being represented. This duty requires fiduciaries to exercise a higher standard of care than that which is required of ordinary people. Business owners or partners have a fiduciary duty toward other partners, shareholders, or investors.

A breach of fiduciary duty occurs when a fiduciary violates their obligations and causes harm to the person they are representing. In the context of a business, breaches may include self-dealing, insider trading, mismanagement of assets, misappropriation of a company’s funds for personal gain, failure to disclose conflicts of interest, unfair treatment of minority stockholders, excessive compensation to the fiduciary or other parties, engaging in competition with the business, or other improper actions that lead to financial losses.

Employment contracts will contain a number of terms that affect both the employer and the employee. In many cases, an employer will want to include terms that protect their interests and prevent employees or former employees from taking actions that could harm the company. These may include non-compete agreements that prevent a person from engaging in unfair competitive activities and non-disclosure agreements that prevent employees from releasing confidential information. In some cases, an employer may also ask employees to sign non-disparagement agreements meant to protect a company’s reputation. By understanding the purpose of these agreements and the restrictions they can put in place, employers and employees can ensure that they are properly protected.

What Is a Non-Disparagement Agreement?

Disparagement may include any statements by an employee or former employee that could harm their employer's reputation. These may include both false statements about a company and factual statements about issues such as workplace policies, the actions of co-workers or supervisors, or the quality of a company’s products or services. Notably, disparagement is different from defamation, which involves false or misleading statements that are meant to cause harm to a company.

A non-disparagement agreement may be included in an employment contract or severance agreement, and it may prohibit a person from making negative statements about their current or former employer. These restrictions may apply to any forms of communication, including posting information on social media, talking to news reporters, or having private discussions with friends, co-workers, or acquaintances. However, a non-disparagement agreement cannot restrict a person’s ability to file a workers’ compensation claim, and an employee will be allowed to speak to investigators from government agencies who are looking into alleged violations of laws or regulations.

Medical debt is a significant issue for many Americans. Large medical bills can be very burdensome, especially for those who are struggling with health issues that may affect their ability to earn an income. In fact, medical debts are one of the most common reasons that people file for bankruptcy. To make matters worse, these debts can continue to affect a person for years, even after debts are paid off or eliminated. A debt that is in collections will often show up on a person’s credit report, lowering their credit score and affecting their ability to receive credit or loans in the future. Fortunately, the credit reporting agencies have announced new policies that may benefit those who have medical debts.

Changes to Medical Debt on Credit Reports

The three credit bureaus that maintain records of people’s debts--Experian, Equifax, and TransUnion--have announced that they are changing some policies related to medical debt. As of July 1, 2022, medical debts that have been paid off will no longer be included on a person’s credit report. This will affect any new debts that are paid off, as well as past medical debts, even those that had been in collections. Because many medical companies are willing to negotiate with consumers to reduce the amount owed, those who have debts may be able to pay them off, ensuring that these debts will not affect their credit score in the future.

In addition to this change, the credit reporting agencies will also be allowing more time before medical debts are included in a person’s credit report. Previously, debts would be reported if they were in collections for more than six months. This period has been extended to one year, giving people more time to address their medical debts and pay them off before these issues affect their credit.

There are multiple types of contractual agreements that businesses may use to protect themselves. In addition to non-compete and non-disclosure agreements that may restrict when and where a former employee can work after leaving a company and prevent them from sharing inside information, non-solicitation agreements may also be used. This type of agreement may prevent a person from contacting employees who work for their former employer and attempting to hire them, or it may restrict a salesperson’s ability to contact former customers and offer goods or services in competition with their former employer. 

These types of agreements may seem difficult to enforce in our modern, always-connected world. People have many ways of communicating with each other, including on social media, through email, and a variety of other channels. Determining whether a person’s actions violated a non-solicitation agreement can sometimes be difficult. Both employers and employees may be unsure about whether these agreements are enforceable in different situations.

What Types of Restrictions Are Reasonable in Non-Solicitation Agreements?

Different states have different laws regarding non-solicitation agreements and other similar “restrictive covenants.” For example, California courts have ruled that non-solicitation agreements are unenforceable. However, Florida law does allow for these types of agreements, as long as they are necessary to protect a company’s legitimate business interests. Restrictions placed on a current or former employee must be reasonable, and they must only last for a limited time. In cases involving employees or independent contractors, restrictions that last for less than six months are presumed to be reasonable, while restrictions that last for more than two years are considered unreasonable.

There are many situations where people may struggle with debt, and this often occurs due to circumstances that are out of a person’s control. Those who are experiencing harassment from creditors and struggling to cover their ongoing expenses in addition to paying what they owe will need to consider their options, and in many cases, bankruptcy can provide an ideal solution. By completing this process, a person, family, or small business owner can eliminate certain types of debts and regain financial stability. However, debtors who are considering bankruptcy may need to be aware of some recent changes to the laws that may affect their eligibility for debt relief based on the amount they owe.

New Debt Limits for Chapter 13 Bankruptcy

Chapter 13 bankruptcy, also known as “wage earner’s bankruptcy,” is an option that may be pursued by debtors who own a home and wish to avoid foreclosure or who do not want to liquidate certain assets during the bankruptcy process. This type of bankruptcy will allow unsecured debts such as credit card balances, medical bills, and missed mortgage payments into a single repayment plan. Depending on certain factors, this repayment plan will last either three or five years, and after a person has made all monthly payments in the plan, any remaining unsecured debts will be discharged.

The U.S. Bankruptcy Code defines certain limits for the amount of debt a person can have in order to qualify for Chapter 13. This limit was increased recently by the passage of a federal law, the Bankruptcy Threshold Adjustment and Technical Corrections Act (S. 3823). Previously, the Bankruptcy Code distinguished between secured and unsecured debts when determining the debt limit. However, under the new law, a debtor will qualify for Chapter 13 if the total amount of their secured and unsecured debts is less than $2.75 million. This may allow more people to qualify for a wage earner’s bankruptcy. Those who have debts in excess of this limit may need to file for Chapter 7 bankruptcy, which has no debt limits.

There are multiple different types of situations where business litigation may be necessary to address losses or other damages that have affected a company. These cases may involve contract disputes, violations of non-compete agreements, or other situations where a business seeks to recover compensation for losses. However, some business disputes may involve fraud or other criminal actions, and if a plaintiff can demonstrate that another party violated the law, they may be able to recover additional compensation through Florida’s Civil Theft Statute.

Remedies for Civil Theft

Fraud and other forms of theft can significantly affect a company. When another party acts with intent to cause harm or otherwise engages in deceptive practices meant to benefit them financially, this can result in substantial losses. Fortunately, a business that has been the victim of fraud or theft may pursue compensation under the Civil Theft Statute, and if they are successful, they can receive treble damages. This means that they may receive three times the amount of the actual monetary losses they experienced because of the theft. A defendant may also be required to pay a plaintiff’s attorney’s fees.

Demonstrating that theft has occurred is not always easy. Florida courts have ruled that a plaintiff must show that a conversion occurred in which money or assets belonging to one party were illegally transferred to another party, and the defendant must have acted with criminal intent to deprive the plaintiff of property or benefits they would receive from ownership of property. These cases require a “clear and convincing evidence” standard, meaning that based on the evidence, a plaintiff’s claims must be substantially likely to be true.

There are multiple types of situations where disputes may arise between business partners. In some cases, partners may not agree about a business’s goals or the roles and responsibilities of the partners or other business personnel. In others, one partner may believe that another partner has failed to uphold their fiduciary duty to protect the interests of the business. Partnership disputes can have a significant impact on multiple parties, including the partners themselves, other shareholders or investors, and others involved in the business. In many cases, partners will be looking to resolve disputes in a way that will minimize the negative effects on the business while still protecting their financial interests. In many cases, arbitration is an effective way to do so.

Understanding the Arbitration Process

There are a variety of methods that may be used to resolve business disputes. While partners may negotiate agreements between themselves, they may not fully understand the best ways to protect their rights and interests as they make decisions. Litigation in court may ensure that legal issues will be handled properly, but this process can be expensive and time-consuming. Arbitration can provide a middle ground, providing partners with the opportunity to present arguments and evidence to a neutral third party who will determine how the disputes will be resolved.

Partners will need to agree to use arbitration to resolve their disputes. A partnership agreement may include an arbitration clause stating that this process will be used to resolve certain types of disputes. Alternatively, partners who encounter disputes may choose to proceed with the arbitration process instead of pursuing litigation. In most cases, arbitration will be binding, meaning that the parties will need to abide by the decisions made by the arbitrator. 

People or families who are struggling with debt may find that bankruptcy is their best option. Filing for bankruptcy will force creditors to stop any attempts to collect debts that are owed, and it may also put a halt to foreclosure proceedings, wage garnishment, and repossessions of vehicles or other property. When a debtor completes the bankruptcy process, some or all of their debts may be discharged, meaning that they will no longer have the obligation to repay the amount owed to creditors. However, it is important to follow the correct procedures during the bankruptcy process, since failure to do so may result in the dismissal of a case, which will allow creditors to resume their collection efforts.

Reasons for a Bankruptcy Dismissal

During a bankruptcy case, creditors may ask for a dismissal if they believe that a debtor committed violations of bankruptcy laws. The bankruptcy trustee may also take action to dismiss a case if the debtor fails to meet certain requirements. Reasons why a case may be dismissed may include:

• Failure to pay filing fees - A debtor is required to pay certain fees and court costs when filing a bankruptcy petition. If they do not pay these fees as required, the court may dismiss their case. If a person does not have the financial means to pay filing fees, they may be able to apply for a waiver that will allow them to proceed with the bankruptcy process without meeting this requirement.

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Originally published: July 9, 2020 -- Updated: June 17, 2022

Throughout my 20-plus years of practice, and especially recently, I have had substantial involvement in enforcing oral contracts, and in doing so, I have obtained significant payouts for my clients. While there are some situations where courts in Florida may enforce oral contracts, it is essential to understand the limitations that apply. It may be more difficult to enforce these types of contracts since, without a written contract, the parties may be unable to prove the terms, the classic he said she said, and there may be legal principles that prevent enforcement.

May is Mental Health Awareness Month. According to the National Institute of Mental Health, nearly one in five adults in the United States lives with a mental illness. It’s not only prevalent but so many more people are opening up and sharing their own journeys with mental illness in very public manners – from conversations to bigger social media platforms. 

At the Elliot Legal Group, we always want to be sensitive and compassionate to our clients’ personal backgrounds and circumstances. The ability to shine a light on mental illness in May, and beyond, is a fantastic way to normalize the conversations and further remove the stigma. It’s also important to us that our clients who do suffer from any level of mental health issues, know and understand their rights and that they feel seen.

We know that the intricacies of the law are dynamic. They change. They evolve. The law can be confusing and even a little bit tricky to navigate at times. That’s why it’s crucial to have counsel on your side who can help you with legal matters and give you a solid understanding of your rights. Many times, unfortunately people with mental health disorders can get lost in the shuffle and have even been discriminated against within the legal systems in their respective counties and states. 

There are multiple types of industries where non-compete agreements are used regularly by employers to protect their business interests. These agreements may restrict a company’s employees from engaging in certain types of competitive behavior after they leave the company or even while they are still working for an employer. If a former employee commits a violation of a non-compete agreement, a company may need to take legal action to address this issue. There are several possible situations where litigation may be necessary to address the financial losses that were caused by the violation of an agreement or to prevent a business from suffering harm.

Examples of Actionable Non-Compete Agreement Violations

Generally, a non-compete agreement may be used to protect a company’s legitimate business interests, and it may place reasonable limits on the types of work a person can perform within a certain geographical area and during a specific time period. Some situations where litigation may be necessary to address a former employee’s violation of a non-compete agreement include:

• A former employee goes to work for a direct competitor. Non-compete agreements may be used to protect trade secrets, and they may restrict employees from working for other companies within the same industry, since doing so may allow them to use their knowledge of their former employer’s processes to help their new employer gain an unfair advantage in the marketplace. In these situations, the former employer may pursue litigation and seek an injunction requiring the employee to stop working for the competitor.

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In many cases, businesses will be looking to avoid legal disputes, since litigation can be costly and time-consuming, and an unfavorable decision in court can have a significant impact on a company’s bottom line. While many of these cases involve disputes with other companies or outside individuals, there are some situations where employees or former employees may take legal action to address issues related to the wages a company pays or other employment law matters. Understanding how to avoid these disputes or address these concerns can be crucial, and taking the right approach will ensure that a company will be able to hire and retain workers and continue operating successfully in the future.

Wage and Hour Disputes

Some of the most common disputes with employees involve the wages paid by an employer. A business must pay at least the minimum wage to all employees, and it may be penalized if it fails to do so. In Florida, the current minimum wage is $10.00 per hour as of September 30, 2021. The minimum wage will increase by $1.00 each year until it reaches $15.00 per hour on September 30, 2026. For tipped employees, employers may deduct a tip credit of $3.02 from a person’s wages, meaning that the current minimum wage is $6.98 per hour, and in 2026, it will be $11.98 per hour.

Labor laws also require employers to pay workers for all hours worked, as well as overtime pay for any time worked in excess of 40 hours per week. The rate of overtime pay must be at least 1.5 times the person’s regular hourly wages. In some cases, disputes may arise regarding whether certain activities are considered to be compensable work. For example, an employer generally may not require an employee to be present at an office or job site for a certain amount of time prior to actually beginning work unless the employee is paid for this waiting time. Similarly, if an employee continues performing work after the end of their shift in order to finish a task, this is considered working time, and the employee must be compensated for this work.

When business disputes need to be settled in the courtroom, the plaintiff and defendant will both need to be sure they have all the information they need to address the issues raised in their case. After a lawsuit is filed, the case will enter the discovery phase, and the parties will gather relevant information from each other or from other parties. Understanding the procedures that may be followed during discovery will help a person ensure that they are taking the correct approach to achieve success in business litigation.

Methods Used During Discovery

Information that may affect a case may be obtained in multiple ways, including:

• Interrogatories - One party may send written questions to the other party, asking for details about certain issues. These questions may be open-ended, or they may be specific. For example, one side may send the other a request to admit certain facts to ensure that these issues will not be in dispute during a trial.

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There are a variety of issues that can lead to contract disputes, but much of the time, these cases will address claims that one party has committed a breach of contract and failed to meet their obligations under a contractual agreement. During litigation of these disputes, one party may invoke a “force majeure” clause in the contract and claim that they were excused from meeting their obligations due to circumstances beyond their control. By understanding when force majeure clauses may apply and how they can affect the litigation of contract disputes, the parties involved in these cases can make sure they will be able to protect their rights and financial interests.

What Is a Force Majeure Clause?

Most contracts contain terms that define when a party may not be required to fulfill its obligations. The term “force majeure,” which means “greater force,” may be used to refer to clauses in a contract that excuse one or both parties from certain obligations due to issues that are unforeseeable and out of their control. The circumstances that trigger a force majeure clause are often referred to as “acts of God,” and they may include natural disasters such as storms, floods, or earthquakes. Other issues that may be covered by these clauses include wars, riots, labor disputes, or other qualifying events that make it impossible for one party to meet their requirements.

If events occur that fall under a force majeure clause, the parties may have a number of options for handling the situation and reaching an agreement that will minimize the losses for both parties. In some cases, they may decide that the contract will still be carried out, but there will be a delay before one or both parties complete their requirements, such as delivering goods or making payments. In others, the parties may agree to a rescission, or a cancellation of the contract.

There are many situations where a party to a business contract may violate the terms of their legal agreement. When a breach of contract occurs by one party, the other party may experience financial losses or other damages, and they may seek to recover these damages through business litigation. However, there are some situations where an anticipatory breach of contract may occur because one party will be expected to violate the terms of a contract. In these situations, the other party will need to understand their options, including the steps they can take to protect their interests and minimize their financial losses.

Anticipatory Breaches and Repudiation

If one party refuses to honor the terms of a contract, this is known as repudiation. In some cases, one party may inform the other that they will not be meeting their contractual obligations. However, many anticipatory breaches involve suspicions by one party that the other will be unable to fulfill the contract’s terms. For example, if a company has entered into a contract with a manufacturer in which a large number of goods will be delivered by a certain date, and they later learn that the manufacturer has filled a large order of the same goods for another company, they may be concerned that the manufacturer has exceeded their production capabilities and will be unable to manufacture and deliver the goods on time. The company may then need to take action to respond to the expected breach of the contract.

Under the Uniform Commercial Code (UCC), a party that has reasonable grounds to believe that a breach of contract will occur may request adequate assurance that the terms of the contract will be fulfilled. In the example above, the company purchasing goods may contact the manufacturer in writing to ask about the status of their order and when it will be expected to be completed. While waiting for a response, the company may suspend any payments they were required to make under the contract. If a response is not received within 30 days, this will be considered a repudiation of the contract.