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June 1, 1994 MEMORANDUM TO CLIENTS
IF I TESTIFY, WILL I BE FIRED? At one time or another most employees face the dilemma of an employer's wrongdoing. Sometimes the situation involves the authorities or court. Then an employee may be called to testify against an employer. When weighing the consequences of testifying most employees are burdened with the question: "If I testify, will I be fired?" A recent case provides guidance to both employers and employees. By statute, an employee has a limited shield in §92.57 Fla. Stat. (1993), against wrongful discharge after the employee testifies against his or her employer. The shield is effective upon two events. The testimony must occur in a "judicial proceeding". Also, the employee must receive a subpoena. In Wiggins v. Southern Management Corporation, Florida's Fourth District Court of Appeals recently interpreted the statutory definitions. The Court looked at where and how the testimony is obtained. First, concerning where the testimony is provided the Court examined and expanded what is meant by the term "judicial proceeding". The Appellate Court expanded the scope of the "where" part of the definition. It held that in the statute's context, an unemployment compensation hearing is a judicial proceeding. The Court did not expand the "how" part of the definition. The statute specified that the employee must be under a subpoena. Although the Court acknowledged the strong public policy argument that the statute should protect those who testify voluntarily, the statute's clear, definite and unambiguous language prevents the Court from expanding, construing or interpreting the language to mean something that it does not state. Therefore, an employee who plans to testify against his or her employer should request a subpoena before testifying. CONDOMINIUM REGULATIONS:
CHANGES IN ADMINISTRATIVE RULES The Florida Department of Business and Professional Regulations recently issued amendments to the administrative rules governing condominiums. The new provisions are now effective. The following discusses certain changes which impact condominium association operation. One of the most significant changes concern a condominium association's duty to maintain "official records". In 1992 the Condominium Act, §718.111(12), was extensively amended to increase association record keeping responsibilities. The new regulations attempt to clarify areas which may have been ambiguous. The largest change may be in election related materials. Most condominium associations are aware that ballots, sign-in sheets, and voting proxies relating to an election of directors must be retained as part of the association's official records for at least one year. Now the retained documents must include all papers which relate to any unit owner vote, not only director elections. The new duty primarily will involve "document" amendment and reserve waiver votes. Documents that must be retained include, but are not limited to: notices of candidacy for election, information sheets, voting envelopes, written approval of budgets and written agreements for recall of board members. Condominium association official records also include all documents which relate to the operation of the association. These specifically include payroll information. No longer can condominium association's defer inspection requests on the grounds that payroll information is personal. Recordings under certain circumstances are also considered official records. The process of examining records was also clarified. Upon a member's request for records, if a condominium association has or has reasonable access to a photocopy machine, the association is required to make photocopies of association records. An association is prohibited from levying a "photocopy services" or labor charge. Instead, associations may charge a reasonable fee for the cost of making copies which cannot exceed $.25 per copy. There is an exception for copying a declaration of condominium or its exhibits for which associations can levy actual preparation charges. There are certain relatively minor rule changes. Condominium associations are required to update their mailing address within thirty days of a change. The associations are also required to update their "Questions & Answers" sheet within twelve months of the last revision. Finally, the rules identify the types of documentation which associations can rely upon when considering exemption from cable television charges. The new rules should avoid many member-association disputes concerning records inspections and copying. To provide guidance to management and members, all associations are urged to adopt reasonable regulations concerning the inspection process. (Though not affecting association operation, extensive rule changes affect manager licensing requirements.) NEW STAFF
As the firm's West Palm Beach office construction nears an end, we are please to announce a staff addition. Ms. Brooke Sigman, a recent graduate of the University of South Florida will be the firm's primary receptionist and will provide general staff support. Please say hello to Brooke when you call.
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