October

Vol. XVI No. 10

EMPLOYMENT: LATE FOR WORK - LOSE YOUR BENEFITS

Is an Association employer free to fire at will a continually tardy employee? The answer is usually yes. Nonetheless, employers still fret about unemployment compensation costs. Now, an employee may be surprised to learn that he or she is not entitled to unemployment compensation if the employer fires the employee for being late.

A Florida appellate court recently ruled that excessive tardiness falls within the definition of misconduct under the Florida unemployment statute. In Torre v. New Century Mortgage Corporation, 31 Fla. L. Weekly D2210 (Fla. 3^rd DCA, August 23, 2006), the court found an employee was not entitled to unemployment compensation due to her tardiness.

This case arose after a mortgage lender gave an account manager several warnings to improve her attendance at work. After the second warning, the lender fired the employee for excessive tardiness. The employee applied for unemployment benefits. The Florida Unemployment Appeals Commission determined that the employee was discharged for excessive tardiness and concluded the employee was unable to receive unemployment compensation.

Agreeing with the Commission=s decision, the court pointed out that misconduct is defined in Section 443.036(29), Fla. Stat. (2005) as A(a) Conduct demonstrating willful or wanton disregard of the standards of behavior which the employer has a right to expect of his or her employee; or (b) Carelessness or negligence to a degree or recurrence that manifest culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer=s interests or of the employee=s duties and obligations to his or her employer.@ The court found that excessive tardiness clearly fell within the definition of misconduct.

It is important to note that the employer in this case provided the employee more than one warning to improve her attendance at work. If an association is faced with a similar situation where an employee is continually late, warn the employee before firing him or her. A written notice is best!

ACCOUNTING RECORDS: A SEPARATE ACCOUNT MUST BE KEPT FOR EACH UNIT

Sometimes a unit owner will own more than one unit in a condominium. Does this make a difference with the accounting records? You bet it does.

In Hobbs v. Weinfauf, et al., 31 Fla. L. Weekly D2242 (Fla. 2^nd DCA, August 25, 2006), a Florida appellate court ruled that a condominium association violated the statutory requirement that accounting records be maintained for each unit. A unit owner sued a condominium association and several members of the board of directors seeking among other things an injunction to compel the association to comply with the Condominium Act=s requirement that accounting records be maintained Afor each unit.@

The evidence presented to the trial court included an affidavit given by the general manager of the Association which stated that the Association did not maintain an individual account for each unit owned by Sports Shinko. Sports Shinko owned a large number of units in the Association. Instead, the Association maintained a summary for all of the units owned by Sports Shinko. Nonetheless, the trial court dismissed the claim.

The Florida appellate court reversed the part of the trial court=s decision which dismissed the claim for an injunction. The court explained that Section 718.111(12) requires that records be kept by the Association, including a Acurrent account and monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due.@

The court concluded that the Association=s position was inconsistent with the plain language of the Condominium Act. AThe fact that information with respect to the status of individual units might be deduced from the summary accounting records does not establish that the statutory requirements were satisfied,@ the court stated. AThe statutory requirements are designed to ensure that condominium associations maintain readily understood and accessible accounting records with respect to individual condominium units.@

This decision emphasizes the importance for all condominium associations to comply with the statutory requirements regarding records. In particular, a Florida condominium association must maintain separate accounting records for each unit. It would appear that the courts rationale would also apply to Florida homeowners= association records requirements.

The firm=s offices will be closed on Monday, October 9, 2006 in observance of Columbus Day.

8 2006 by Gelfand & Arpe, P.A.