Business & Commercial Blogs

The latest updates from The Law Office of Alexis Gonzalez

Latest Post

Are You A Contractor?

When performing any type of work on a building, home, or apartment, it is critical to determine whether you must be licensed to perform that work because, as some people find out the hard way, the client may be able to avoid paying you.1 In some instances, the parties know from the outset whether the work contracted for requires a license. In other instances, the job becomes more complicated over time, and the new tasks may need to be performed by a person holding a specific license.

In the matter of SG 2901, LLC v. Complimenti, Inc., No. 3D19-2131 (Fla. 3d DCA June 2021), SG hired Complimenti to perform some relatively easy work on SG’s apartment, like decorating the apartment, polishing the floors, and preparing the unit for occupancy. But, over time, SG wanted more work done on the property, which required licensed professionals. Complimenti recruited several licensed professionals to meet with SG, and SG hired its preferred licensed professionals, including a licensed general contractor. All the licensed professionals have been told to meet with Complimenti on all matters relating to payment, but SG had the final word on any decisions. After the project was complete, SG refused to pay Complimenti for its services, and Complimenti sued.

SG argued that it could deny Complimenti payment because Complimenti was acting as a contractor. The court rejected this argument. In doing so, the court relied on a two-part test set out in section 489.105(3), Florida Statutes (2020) to determine whether Complimenti was a contractor: (1) the individual must construct, repair, alter, remodel, add to, demolish, subtract from or improve any building or structure; and (2) the job scope must be substantially similar to a job scope described in (a) through (q) of section 489.105(3) (which includes general contractor, roofing contractor, and specialty contractor, among other things). The court found that Complimenti’s job scope was limited to design and decorating services and acting as a point of contact for SG. Any of the hiring or contracting work done on the unit was approved by SG or the general contractor. The court concluded that based on these facts, Complimenti was not acting as a contractor, and SG owed the money due to Complimenti.

The main takeaway from the SG case is that regardless of the type of work you are hired to perform, the work that you actually perform determines whether you need a license. So whenever you are working on a job and are asked to perform more specialized work, ask yourself if you need a license to perform that work. If you need a license, get someone who has a hold of that license otherwise, the client may be able to avoid paying you.

[1] See § 489.128(1), Fla. Stat. (2020) (rendering contracts entered into by unlicensed contractors unenforceable).

Latest Post

OSHA Regulations In A COVID-19 Era

OSHA will be increasing the number of its inspections. Inspections will vary by industry risk (from low to very high), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection. Inspections are likely to be less frequent for low-risk industries where employees aren’t expected or aren’t at high risk of coming into contact with a confirmed COVID-19 case or frequent, close contact with the general public.

Employers must make a reasonable effort to determine if the COVID-19 case is work-related, using the evidence available to them, and record a COVID-19 case as a respiratory illness under OSHA Form 300 (injury or illness form).

The recording obligation occurs when one of these criteria is met:

1.         A case is “confirmed” within the meaning of the CDC definition, which is: an individual with at least one respiratory specimen that tested positive for SARS-CoV-2 (the virus that causes COVID-19).

2.         The employee was exposed to COVID in the workplace. OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.” Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.

3.         A work-related injury or illness must be recorded if it results in one or more of the following:

1904.7(b)(1)(i)

Death. See § 1904.7(b)(2).

1904.7(b)(1)(ii)

Days away from work. See § 1904.7(b)(3).

1904.7(b)(1)(iii)

Restricted work or transfer to another job. See § 1904.7(b)(4).

1904.7(b)(1)(iv)

Medical treatment beyond first aid. See § 1904.7(b)(5).

1904.7(b)(1)(v)

Loss of consciousness. See § 1904.7(b)(6).

1904.7(b)(1)(vi)

A significant injury or illness diagnosed by a physician or other licensed health care professional.

Latest Post

Employer/Employee Rights Under The New COVID-19 Legislation Article

In the wake of the coronavirus pandemic, Congress enacted legislation to assist U.S. workers and to define an employer’s new obligations to those workers. Some important new laws include the Families First Coronavirus Response Act (“FFCRA”), the Emergency Family Medical Leave Act (“EFMLA’), and the Emergency Paid Sick Leave Act (“EPSLA’). These laws can be nuanced, fact specific, and at times confusing. Our law firm assists employers and employees in understanding their rights, and would be happy to answer your questions during these difficult and uncertain times.

FFCRA

            The FFCRA sets up a system whereby employees have, under certain circumstances, entitlement to paid leave by covered employers, as implemented through the EFMLA and the EPSLA. The Department of Labor has prepared a poster regarding employee rights, which employers should post in a conspicuous place: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

            Generally, the Act provides that employees of covered employers are eligible for:

             Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

            Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and

            Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

EFMLA

            The EFMLA expands the Family Medical Leave Act (“FMLA”) to allow for paid leave, subject to various conditions, caps, and limitations. For the EFMLEA to apply, the issue is whether there is a qualifying reason, namely because of the need to take care of a son or daughter whose school or daycare is closing or unavailable because of the coronavirus.

EPSL

            The EPSL provisions of the FFCRA allow eligible full-time employees to take up to 80 hours of paid sick leave between April 1 and December 31, 2020, for one of the six enumerated reasons set forth in the Act, which are:

            i.          if the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

            ii.         if the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

            iii.        if the employee is experiencing the symptoms of coronavirus and seeking a medical diagnosis;

            iv.        if the employee is caring for “an individual” (need not be a family member) who is subject to an order described in (1) above or has been advised to self-quarantine, as described in (2) above;

            v.         if the employee is caring for a son or daughter under the age of 18 because such son or daughter’s school or place of care has been closed, or such son or daughter’s care provider is unavailable due to coronavirus; or

            vi.        if the employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Unemployment

            Employees who have been laid off or furloughed may apply for unemployment.

Latest Post

What To Do If An Employee Tests Positive for COVID-19

1. Do not identify the infected person, but do advise employees of potential exposure

2. Have the infected person self-isolate and stay home for at least 2 weeks or until tested negative twice

3. Isolate, clean and disinfect the infected person’s work area

4. Set in place mandated work-from-home policies while employees quarantine

As an employer, you want to keep in mind that your employees value and respect the precautions being taken to protect them. You want to be sure to approach all conversations factually and not use terms like “I think” or “I feel”. Be sure your employees are aware that work is still a priority, but also take into consideration and prioritize their needs and their health. Be flexible with your employees and considerate if they fall ill or are overwhelmed by the circumstances.

Latest Post

Coronavirus (COVID-19): A Force Majeure Defense?

We have all heard the expression “a deal’s a deal.” But sometimes a deal cannot be carried out due to forces outside of a party’s control. Florida law has long recognized potential defenses to the enforcement of a contract under those circumstances. One such defense is impossibility of performance, which is when uncontrollable circumstances make the contract impossible or impracticable to carry out.

Another defense is when an unpredictable “Act of God” such as a storm or an earthquake interferes with a party’s ability to perform.

A third defense is force majeure.  A force majeure clause in a contract excuses performance where performing would be illegal, impracticable, or impossible. Force majeure clauses in contracts can be broader than the scope of impossibility and still be enforceable under Florida law, including those allowing foreseeable, as well as unforeseeable, events to excuse timely performance.

Frustration of purpose is another contractual defense that occurs when some outside actor does something to prevent a party from performing. Arguably, a border closure would be an example.

The bottom line is that there are defenses to enforcement of a contract due to circumstances beyond a party’s control.  Certainly COVID-19 and the need for efforts to control it are well beyond anyone’s control.

Floridians are now faced with a maelstrom of events that potentially trigger the above defenses due to the coronavirus: such as sick workers, quarantined workers, interruptions to customers and supply chains, border closures, and government shut downs or lock downs.

We advise that you contact our attorneys for a review of your contracts, insurance policies, and business circumstances to evaluate whether you may have contract defenses attributable to the current pandemic. While we have not yet seen any published Florida cases directly applicable to COVID-19, it is expected there soon will be, and we can review those with you as well and discuss their application to your business.

Latest Post

Businesses Combating the Coronavirus COVID-19

  1. Contingency planning
    • Coordinate an emergency plan with Human Resources, IT, Leadership and Counsel
    • Focus on services that are critical to the organization
    • Determine impact of high absenteeism and consider alternative work arrangements such as working from home/or in shifts, temporary workers, staffing agencies
    • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
    • Communicate with your vendors to assess how they are planning to address any challenges they may be facing as a result of an outbreak
    • Identify potential impact of multinational issues, including interruption in supply chain and manufacturing plants (some countries are better prepared than others to handle a Coronavirus outbreak)
    • Examine necessary or potentially needed contractual notices and disclosures
  2. Review, modify and/or implement leave, travel, health and safety policies
  3. Disinfect workplace, particularly common areas and personal workspaces
  4. Incorporate hygienic and preventive measures such as periodically washing hands for a minimum of 20 seconds, hand sanitizing; covering mouth and nose when sneezing or coughing; avoid touching eyes, nose or mouth; staying home if sick.  Refer employees to CDC’s helpful handouts and posters: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html   
  5. Determine individuals that have a high risk of exposure and create a plan to prevent exposure to other employees, contractors and customers
  6. Identify and monitor potential areas of harassment, discrimination and/or bullying due to Coronavirus effects
  7. Analyze Insurance Policies (Business Interruption, Property Loss, etc.) – policy wording will determine applicability of coverage. Keeping track of all documentation and support for losses is critical for any future claims.
  8. Disaster Assistance may be available from the U.S. Small Business Administration.  The following website keeps businesses updated on the latest information regarding Coronavirus assistance: https://www.sba.gov/page/guidance-businesses-employers-plan-respond-coronavirus-disease-2019-covid-19
Latest Post

Business Transactions

An often overlooked priority when launching a new business, particularly when there are partners involved, should be to create an operating agreement. An operating agreement protects the business in the long-run by defining each partner’s responsibilities, how the business will be managed, and also addresses how a conflict of opinion will be resolved.

When friends or family start a business together, it is not uncommon to do so without the proper documents in place from the beginning. Frankly, conversations about how to handle problems down the road seem almost intangible and are about as popular as a prenuptial agreement when heading into a marriage. The conversations seem awkward, as if the relationship is launching with a lack of trust. That said, this is the most crucial time period to create an operating agreement. Determining an objective terrain for navigating the growing business happens far more objectively when handled up front, and when partners do still trust one-another. Often verbal agreements are made but nothing is put into a hard copy and agreed upon by all parties.

This can cause many issues down the road as circumstances can, and do, change for everyone involved. The most common changes include differing opinions on how to manage the company’s growth, personal life changes that affect work styles, or even personal jealousies for professional development or accolades can disrupt the relationship between business partners. In the beginning the parties tend to be agreeable and have the same vision, but as the business evolves, these changes can cause what often prove to be irreconcilable differences between the parties, resulting in a stalemate.

This can be detrimental to the business, hence the reason a business should afford the creation of these documents. Furthermore, the timing of implementing an operating agreement is key.  Once the turmoil has begun the chances of the partners agreeing on all points decrease exponentially. Whether in the creation stages or in the dissolutions stages, all parties should have their own attorneys. This includes the business itself, where the attorney would be looking out for the best interests of the corporate entity, and any partners, each of whom should have their own legal representation.

Your corporate attorney should not be your personal attorney as that represents a conflict of interest. It is highly unlikely that your personal interests are in all cases perfectly aligned with the ideal interests of the company. The trick is to make informed decisions about any points of negotiation, providing you, your partners, and the company as a whole with the most agreeable, best case scenario.

When performing any type of work on a building, home, or apartment, it is critical to determine whether you must be licensed to perform that work because, as some people find out the hard way, the client may be able to avoid paying you.

OSHA will be increasing the number of its inspections. Inspections will vary by industry risk (from low to very high), the nature of a complaint(s), multiple complaints, or other reasons like a random inspection.

In the wake of the coronavirus pandemic, Congress enacted legislation to assist U.S. workers and to define an employer’s new obligations to those workers.

Take the right steps in ensuring the safety of your employees during the COVID-19 pandemic.

Does Florida Law Provide Relief to Contracting Parties in the Form of the Doctrines of Impossibility of Performance, Acts of God, Frustration of Purpose, and Force Majeure, Due to the Coronavirus (COVID-19)?

For business and business owners, this global pandemic can be worrisome and fearful. In an attempt to prevent the Coronavirus COVID-19 from affecting you, please keep in mind the following tips.

An often overlooked priority when launching a new business, particularly when there are partners involved, should be to create an operating agreement.