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U.S. Department of Labor Issues Final Rule To Update FLSA’s Joint Employer Regulations

In addition to all the other labor and employment updates in the law of the last week, the issue of “joint employment” has gone through an official transformation this past week. 

The issue of Joint Employer arises frequently in Fair Labor Standards Act (FLSA) cases when employees seek to hold more than one “employer” liable for overtime and other wages claimed to be owed.  Oftentimes, the question of whether entities can be considered joint employers is uncertain and differs from court to court.  In an effort to clarify the matter, the Department of Labor (DOL) has adopted a four-factor balancing test to determine joint employer status that is focused on decision-making (did the alleged employer have the right to hire and fire the employee?), supervision (did the alleged employer substantially control the conditions of employee’s employment?), payment (did the alleged employer set the employee’s pay?) and record-keeping (did the alleged employer maintain employment records?).

As with all balancing tests, no one factor is more important than the other.  The questions becomes whether, on balance, the employee performed work that benefitted more than one employer, and additional facts relevant to this inquiry may also be considered.

This final rule quietly went into effect on March 16, 2020 but was understandably overshadowed by critical issues surrounding COVID-19. 

Important to note that this rule is only applicable to joint employer issues arising under the FLSA and not to other federal laws impacting employment such as Title VII of the Civil Rights Act.

More information about the new rule can be found at https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.

Of course, feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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www.assoulineberlowe.com


Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, Bankruptcy, Trusts & Estates, Probate and Guardianship


Miami • Ft. Lauderdale • Boca Raton 

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FL SMALL BUSINESSES (100 employees or less) BRIDGE LOANS – Gov. DeSantis Jump Starts Emergency Short Term No Interest Loans

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COVID-19 and Florida’s Small Business Emergency Bridge Loan Program

Available until May 8, 2020 to small businesses established before March 9, 2020, and limited to only those businesses having between 2 to 100 employees and maintaining its principal place in Florida, businesses that have suffered economic loss can apply to the State of Florida for a one-year short-term, interest-free loan for working capital. The loans bridge the gap until sufficient profits from normalized business operations, payments from insurance claims, or federal disaster assistance are received. The Program has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance

The loans are for up to $50,000; but in special cases, may be up to $100,000.

Although interest free in the first-year, any unpaid balance thereafter is subject to a 12% per annum interest rate; and any default is subject to normal collection processes.

Below is the official Press Release from Florida’s Department of Economic Opportunity

Governor Ron DeSantis Activates Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19

Mar 16, 2020

Tallahassee, Fla. – Today, Governor Ron DeSantis activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. The bridge loan program, managed by the Florida Department of Economic Opportunity (DEO), will provide short-term, interest-free loans to small businesses that experienced economic injury from COVID-19. The application period opens tomorrow, March 17, 2020 and runs through May 8, 2020.

“As we mitigate against the spread of COVID-19, the health, safety and well-being of Floridians comes first,” said Governor DeSantis. “I understand the harm mitigation strategies will have on small businesses throughout our state. By activating the Florida Small Business Emergency Bridge Loan, we are providing the opportunity for Florida’s small businesses to receive cash immediately to ensure they can lessen the impacts felt as a result of COVID-19.”

DEO will administer the Florida Small Business Emergency Bridge Loan Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the program.

“Governor DeSantis has been a true leader in the fight to prevent the spread of COVID-19 and has prioritized the safety of all Floridians,” said Florida Department of Economic Opportunity Executive Director, Ken Lawson. “The Florida Small Business Emergency Bridge Loan will help Florida’s small businesses get through this unsettling time. We appreciate the Governor’s efforts to keep Florida’s small businesses top of mind and our partners at the Florida SBDC Network and Florida First Capital Finance Corporation to help them recover.”

Small business owners with two to 100 employees located in Florida affected by COVID-19 can apply for short-term loans up to $50,000. These loans are interest-free for up to one year and are designed to bridge the gap to either federal SBA loans or commercially available loans. DEO will work with every borrower to ensure that repayment of the loan isn’t an overwhelming burden. To be eligible, a business must have been established prior to March 9, 2020 and demonstrate economic impacts as a result of COVID-19.

“Mitigating the spread of COVID-19 in Florida must be our number one priority,” said Florida SBDC Network CEO, Mike Myhre. “The Florida SBDC Network stands ready to assist Governor DeSantis and the Florida Department of Economic Opportunity to help small businesses recover as a result of the impacts of COVID-19.”

“We are ready to assist the Governor and state of Florida to deliver this vital assistance to the small business community we serve, as we have 23 times since 1992,” said Florida First Capital Finance Corporation President and CEO, Todd Kocourek.

DEO is currently surveying businesses throughout the state of Florida who have been impacted by COVID-19. Businesses and non-profits can access the Business Damage Assessment survey at FloridaDisaster.BIZ Select “COVID-19” from the drop-down menu on the survey page. Response to the Business Damage Assessment survey is not an application for assistance. Businesses interested in the bridge loan program must fill out a bridge loan application.

For more information on the program, visit www.floridadisasterloan.org. For questions regarding the Emergency Bridge Loan Program, contact the Florida Small Business Development Center Network at 866-737-7232 or email Disaster@FloridaSBDC.org. The phone line will be answered during regular business hours; all voice mails and emails will be responded to within 24 hours.

Details on the Loan Program were also set forth on the www.floridadisasterloan.org web page.

Details from the web page follow:

The Florida Small Business Emergency Bridge Loan Program is currently available to small business owners located in all Florida counties statewide that experienced economic damage as a result of COVID-19.

These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.

The Florida Small Business Emergency Bridge Loan Program is not designed to be the primary source of assistance to affected small businesses, which is why eligibility is linked pursuit to other financial sources.  Note: Loans made under this program are short-term debt loans made by the state of Florida using public funds – they are not grants. Florida Small Business Emergency Bridge Loans require repayment by the approved applicant from longer term financial resources.

Loan Details
      • Designated Disaster Areas: All Florida counties statewide per Executive Order 20-52.
      • Qualified Applicant: Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020, and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.
      • Amount: Up to $50,000 per eligible small business.  Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.
      • Term: 1 year.
      • Limitation: Only one loan may be made per eligible business. All previous bridge loans received MUST be paid in full.
      • Interest Rate: Loans will be interest-free for the loan term (1 year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full.  Loan default is subject to a normal commercial collection process.
      • Application Period: Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.
Get Started
  1. Review eligibility requirements and loan process.
  2. Download, complete and sign the application form.
  3. Gather required support documentation.
  4. To submit completed applications and required documents, send by mail or courier to: Florida SBDC Network Headquarters, C/O Florida Emergency Bridge Loan Process, 220 West Garden Street, Suite 301 Pensacola, Florida 32502.  Applicants may also submit applications and required documents via email to Disaster@FloridaSBDC.org or by fax to (850) 696-2693.
  5. For assistance in completing the application, contact your local Florida Small Business Development Center (SBDC) office. To locate your local Florida SBDC visit www.FloridaSBDC.org/locations or contact us toll-free (866) 737-7232
Contact Information

For questions regarding the Emergency Bridge Loan Program, please contact the Florida Small Business Development Center (SBDC) Network Headquarters. Email: Disaster@FloridaSBDC.org.  Phone toll-free: (866) 737-7232.

About the Emergency Bridge Loan Program
The Florida Small Business Emergency Bridge Loan Program was first activated following Hurricane Andrew in 1992. It has been activated 26 additional times following disasters and has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance.
Carl H. Perdue, Esq.
Eric N. Assouline, Esq.
ASSOULINE & BERLOWE
The BUSINESS LAW Firm
Miami – Ft. Lauderdale – Boca Raton
Main Office: Miami, Florida
Telephone: 305-567-5576

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STAY THE COURSE – Employers on Edge with Labor and Employment Related COVID-19 Concerns

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SOUTH FLORIDA – First and foremost, we at Assouline & Berlowe hope this note finds you and your family, friends, employees and others safe and well.   

We have been hearing from many of our clients and colleagues with questions about the impact of the coronavirus on their businesses – such as: allowing employees to work from home; what to do for those employees who cannot work from home; whether such employees can/should/must be paid for their absences; etc. The questions are wide-ranging and require advice that is a mix of the legal and the practical.

 As most of you may have heard, Congress is currently poised to pass federal legislation that the president is intent to sign into law that will address some of these employment-related issues, including paid leave to employees (along with a corresponding tax credit to the employer), expanded rights under the Family and Medical Leave Act and enhanced unemployment benefits. 

Once the law is enacted, we will follow up this blast with specific details (the House version of the bill – “The Families First Coronavirus Response Act” – has yet to have been voted on by the Senate).

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Although these are uncertain times, if we each “stay the course” – be safe and smart and look out for ourselves and each other, we will get through this.    

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Ellen M. Leibovitch, Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A., 2300 Glades Road, East Tower – Suite 135, Boca Raton, Florida 33431 Main: 561-361-6566
Direct: 561-948-2479

 

 

 

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BANKRUPTCY LAW – Small Business Reorganization Act, New Interim Rules Released

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The United States Bankruptcy Court for the Southern District of Florida, through its Chief Judge, Laurel M. Isicoff, issued several updates tonight regarding the new Small Business Reorganization Act (SBRA), which goes into effect TOMORROW!

As stated by the Chief Judge: “The SBRA creates a new subchapter V of chapter 11 for the reorganization of small business debtors.  It does not repeal existing chapter 11 provisions regarding small business debtors, but instead creates an alternative procedure that small business debtors may elect to use.”

The Court further stated that: The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has promulgated Interim Rules and Form Amendments to the Federal Rules of Bankruptcy Procedure as a result of the passage of the Small Business Reorganization Act.

Among the numerous orders, is Administrative Order 2020-02 In re: Adoption of Interim SBRA Bankruptcy Rules.  This is an important set of rules that bankruptcy practitioners in the Southern District of Florida must follow.

Amended Official Forms 101, 201, 309E (renumbered 309E1), 309F (renumbered as 309F1), 314 (use Local Form LF-33), 315, and 425A, and new Official Forms 309E2, and 309F2 become effective February 19, 2020. For changes in the Bankruptcy Forms please visit: https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.

Additional SBRA Resource:

A Guide to the Small Business Reorganization Act of 2019” by U.S. Bankruptcy Judge Paul W. Bonapfel Northern District of Georgia.

Eric N. Assouline, Esq.

 

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Spring Training – Sponsorship of Little League Baseball

Miami – Competition is at the heart of any lawyer. It is natural that advocating for a client will require a competitive advancement of a position. As part of a long tradition of supporting organizations in the community, Assouline & Berlowe has sponsored and continues to sponsor a little league baseball team. Here is the start of another season of the “boys of summer”.

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“Brand” New Trademark Rules Starting 2/15/2020

TMThe United States Patent and Trademark Office (USPTO) will not issue a federal trademark registration without the applicant first proving the mark (brand) being protected is actually being used in commerce.  Whether the proof is submitted with the initial application (for actual use applications) or later in the application process (for intent to use applications), the applicant will need to submit specimen of use for the  brand.  The types of evidence varies depending on the type of class associated with the brand.  For products, the specimen must be on the product itself, the packaging, or manuals.  While service based classes can use marketing materials, such a flyers, websites, and signage.

On February 15, 2020, the USPTO is updating the rules of specimen that are submitted to prove use in commerce.  The rules are becoming stricter.  For goods, the goods themselves must be included with the packaging, labels, or displays.  For apparel, hang tags or labels must actually be connected to the apparel, not merely next to the products.

Screen shots of websites showing the mark and detailing the services provided have been relatively standard as specimen over the years.  Under the new rules, any such screenshots will now require the URL and a date of the screen print.

The purpose behind the new rules is to prevent the submission of fraudulent specimen for marks that actually are not in use.  This is why digital images and mock ups of marketing materials are often rejected by the USPTO.

While the purpose of the rules is to help thwart fraud, one of the rule updates requires the inclusion of an applicant’s email address, not only the attorney’s email address.  This was optional in the past.  There is a known issue with companies mining the USPTO public records for applicant physical addresses and mailing official looking invoices that mislead applicants to pay fees that provide little to no value.

While the intent of the USPTO to require applicant email addresses is to help communication channels between the USPTO and applicants, the result will be greater access to applicants to those companies that mine USPTO databases trying to mislead applicants directly.  As a result of significant push back from practitioners and the public at large, the USPTO is presently looking at ways to “mask” the applicant’s email addresses from public viewing.

For any questions about the new trademark rules or to look into protecting your brands, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney / Partner

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

Layout 1Circa. Feb.10,2003

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BANKRUPTCY – China Finally Starts to Embrace Bankruptcy, U.S. Style, to Cushion a Slowing Economy. Wall Street Journal.

https://www.wsj.com/articles/china-embraces-bankruptcy-u-s-style-to-cushion-a-slowing-economy-11573058567?reflink=share_mobilewebshare

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INTERNATIONAL ARBITRATION / BANKRUPTCY PANEL DISCUSSION – October 23, 2019 at the University of Miami

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ONLY 7 DAYS LEFT.

The International Arbitration Society at the University of Miami School of Law is presenting a panel discussion on the conflict between International Arbitration and Domestic Insolvency.

Date : October 23, 2019

Time: 6:30 p.m. – 9 p.m.

The discussion will be followed by a networking social.

Students, professionals and practitioners are invited to attend and participate.

Please RSVP here: https://lnkd.in/eAT24JM

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Want to Learn More About Intellectual Property? Check out the new CLE by Greg Popowitz.

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Assouline and Berlowe Registered Patent Attorney Greg Popowitz recently recorded a lecture for the National Academy of Continuing Legal Education (NACLE), focusing on a general Intellectual Property Overview and 2019 IP case law update.

Mr. Popowitz detailed the fundamental differences of patents, trademarks, copyrights, and trade secrets and the nuances of each area of Intellectual Property.  He also discussed some recent key court decisions, including Supreme Court of the United States (SCOTUS) holding the disparagement clause of the Lanham Act unconstitutional under the First Amendment and paving the way for the mark F.U.C.T.  In addition, Mr. Popowitz discussed SCOTOS’ resolution of a circuit split, holding that a party must have completed the registration process before filing suit in federal court, as opposed to simply applying for protection.

To view the NACLE CLE, please click here.  The link is also provided below:

https://www.nacle.com/CLE/Courses/Intellectual-Property-Case-Law-Update-and-General-IP-Overview-1353

For any questions about trademarks, patents, or copyrights, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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