May 2002

MEMORANDUM TO CLIENTS

EMPLOYMENT: NO OVERTIME FOR HOURLY WORKERS?

Should you have an employee handbook? Why should you? Will an employee handbook create a contractual duty on the part of an association to pay for certain overtime work performed by employees? Maybe not, thanks to a recently decided case.

In The Quaker Oaks Company v. Jewell, 27 Fla. L. Weekly D734 (Fla. 5^th DCA, March 28, 2002), a Florida appellate court ruled that policy statements in Quaker Oats’ employment manual did not create enforceable contract rights. The court held that policy statements in the employment manual did not become a contract of employment unless the manual expressly states that the manual creates an employment agreement.

This dispute originated when nine hourly employees sought overtime wages. The employees alleged Quaker Oaks breached their contract by not paying overtime wages as provided for in their company’s employment manual. The company’s employment manual contained language specifically providing overtime to employees working a five day workweek. The jury returned a verdict for the employees, awarding $103,831.00.

On appeal, the company argued that the trial court erred in ruling the compensation policies contained in the employment manual constituted part of an employment contract. Agreeing with the company, the Florida appellate court found that no contract existed. The policy statements in the manual did not amount to a contract with the employees to pay overtime.

This case points out the importance of reviewing policy manuals to make sure they accurately set forth association policies. Although the decisions cited by the court indicate that Florida courts have yet to rule in favor of employees on this issue, it would save associations time and money if their employee manuals accurately reflected the policies of the associations. As stated by Judge Peterson, "The ethical consideration is simply this: Don’t publish it unless you mean it!"

ATTORNEY’S FEES: PRODUCE RECORDS WHEN REQUESTED OR ELSE

What would happen if a member requested a copy of the association’s records and the association dilly-dallied in supplying the records? The association may find itself paying the member’s attorney’s fees if the member goes to court to obtain the records!

In Mazer v. Orange County, 27 Fla. L. Weekly D732 (Fla. 5^th DCA, March 28, 2002), the court recognized that the County produced public records after the lawsuit was filed. Nevertheless, late production did not render the case "moot" - that is, meaningless or preclude the consideration of an award of attorney’s fees to the requestor.

In this decision, the owner of a building demolition by Orange County submitted a public records request for the County’s building demotion procedures. The County initially claimed it had no more copies of the Unsafe Building and Abatement Code. The owner then petitioned the court to order the County to provide him with a copy of the Code. He also asked for attorney’s fees because he had to bring an action to force the County to provide the Code. The law allows someone wrongfully refused public records to also collect attorney’s fees. Shortly thereafter, the County purchased extra copies of the Code and provided one to the owner. The County then claimed the owner was not entitled to attorney’s fees because the action was moot.

The court pointed out that a moot case will not be dismissed "when collateral legal consequences flow from the issues to be resolved that may affect the rights of a party." Here, the owner’s right to attorney’s fees coincided with the public records lawsuit. Although this decision deals with the request for public records - documents sought from a public entity - a court may just as likely apply the same reasoning to a member’s request for association records. Thus, it would be in the association’s best interest to promptly respond to all valid records requests.

GOODBYE SNOWBIRDS, HELLO HURRICANES

The end of the winter brings with it the beginning of hurricane season. This is the time for communities to review their hurricane check lists. Confirm that the insurance is up to date and for the proper value. Update your membership and contact rosters. Videotape property of the association. Remove overgrown and loose items. Create a back-up of documents necessary to operate the association. And most importantly, ensure that frail and handicapped residents have contingency plans in the event the big storm suddenly descends upon us.

FIRM NEWS

Michael Gelfand will be speaking at the Condominium and Homeowners Association Continuing Legal Education Committee’s 13^th Annual Condominium and Homeowners Association Seminar to be presented by the Palm Beach County Bar Association on Friday, May 31, 2002. Mr. Gelfand’s topic pertains to recent court decisions impacting associations. Attorneys interested in attending should contact the Bar Association directly at 561-687- 2800.

The firm will be closing its office in observance of Memorial Day on Monday, May 27, 2002.

© 2002 by Gelfand & Arpe, P.A.