Best Interest of the Child

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Read through this interesting article from the New York Times regarding “The Best Interest of the Child”. We know that in Florida, the Courts use The Best Interest of the Child as a term of legal art, which means that you will hear it in any and all proceedings of family law where a child is involved.

The New York Times Article covers the topic of what is the best interest of the child.

Read the NY Times article. Let us help you with this tough legal challenge.

CUBAN AMERICANS SUE FOR PROPERTY SEIZED.

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Cuban-Americans Can Sue Foreign Companies for Property Seized

Trump seems to want to allow a controversial law allowing Cuban Americans and other U.S. citizens to sue over property seized in decades past by the Cuban government.

Europe Fights Trump for Allowing Cuban-Americans to sue Cuba.

Even though European companies have threatened to protest this permission to sue, especially foreign companies headquartered in the EC, and threatened a possible WTO challenge and a cycle of counterclaims in European courts as sure to fail if the European companies fight the suit.

Foreign Companies Hurt By Trump Permission to Sue Cuba.

Which foreign companies may be affected?  The Canadian mining firm Sherritt International Corp and Spain’s Melia Hotels International SA. As well as U.S. companies, like airlines and cruise companies, have pressed hard to put their foot in the door in Cuba the moment Obama allowed companies to move into the Island Nation.

Trump, it appears, will also enforce the Helms-Burton’s Title IV, which requires the denial of U.S. visas to those involved in “trafficking” confiscated properties in Cuba.

Thousands of Cases Against Cuba for Confiscating Properties

According to a recent April 19, 2019 article by Reuters, “In major shift, Trump to allow lawsuits against foreign firms in Cuba, by Susan Heavy Matt Spetalnick, David Alexander; Washington Sarah Marsh, Marc Frank; Havana , “some 5,913 claims held by U.S. companies and individuals have been have been certified by the U.S. Justice Department and are now estimated to be worth roughly $8 billion. The Cuban Government estimates that damages will range from $121 billion to more than $300 billion.”

If you want to add your name and claim to the lawsuit, please feel free to contact us at vbao@thelawmiami.com or via phone to 786-454-2411.

Cubans Can Sue for Cuban Government for Confiscated Property

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Donald Trump is allowing Cuban-Americans whose property was confiscated during the Castro revolution to sue the island nation and the new owners of those properties who perhaps knew or should have known that the properties they occupy today are in fact confiscated under the communist movement in Cuba.

In similar cases like Poland, where citizens were allowed to sue the government for confiscated properties, those citizens were required to show the original title to the property, and pay to relocate the current occupants of that property in order to regain it. In other examples, the lawsuits required that those suing were occupants of the property and could sue to quiet title.

The elements needed to reclaim confiscated property in Cuba by Cuban Americans will be clear soon. The key is to start the suit now before others can file the claims. Our Cuban-American attorneys can help you file an action to repossess your property in Cuba. We suggest that if you are a Cuban-American trying to claim title to your property which was confiscated by the Fidel Castro revolution, you contact us at (786) 454-2411 and ask for Vanessa Diaz to get started.

“The complexity is the fact that many European companies have taken over these properties knowing that they were confiscated, which means that legal actions will take some time.” Said Vansessa E. Diaz, Esq., Of Counsel at The Miami Law Firm. “In addition, there are current occupants to those properties making it more challenging, but not impossible. Starting your lawsuit today against the Cuban Government will be key to save your place in line.”

Here is a recent article by Reuters:
https://www.reuters.com/article/usa-cuba-lawsuits/explainer-trump-allows-lawsuits-over-cuba-confiscated-property-what-you-need-to-know-idUSL5N21Z6FB

Call The Miami Law Firm if you are interested in taking action against Cuba for confiscating your family property during the Fidel Castro illegal confiscation of property on the Island Nation.

Call (786) 454-2411 or email us at Pleadings@TheLawMiami.Com

Domestic Violence Injunction Florida

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How Long does A Domestic Violence Injunction Last?

Once entered, a domestic violence injunction “shall remain in effect until modified or dissolved.”

How do I Remove a Domestic Violence Injunction?

Either party to a domestic violence injunction proceeding can move to modify or dissolve the injunction “at any time.” See Fla. Fam. L. R. P. 12.610(c)(6).

What do I Do to DO Now to Remove a Domestic Violence Injunction?

Although the law does not state what a party who seeks to dissolve a domestic violence injunction must prove in order to obtain that relief, the court and others have held that the person wanting to remove an injunction must show “that there has been a change in circumstances since the injunction was entered” such “that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose.”

How Does the Court Place an Domestic Violence Injunction?

For a domestic violence injunction to issue in the first place, there must be either an actual act of domestic violence or a reasonable fear that domestic violence is imminent.  

How Does a Person Extend a Non-Permanent Injunction for Domestic Violence?

When a party seeks to extend a nonpermanent injunction against domestic violence, he or she must demonstrate that an additional act of domestic violence has occurred or that there is a reasonable fear of imminent domestic violence.  

 It follows that a reasonable fear of imminent violence is also necessary to justify denying a motion to dissolve a domestic violence injunction that is otherwise supported by the requisite change in circumstances. 

An Example of Domestic Violence Injunction Changed.

In a 2019 case, a man had a domestic violence injunction placed against him.  His wife claimed he had committed domestic violence against her because he was in his car in a parking lot and told her he would kill her.  He was scared to challenge the domestic violence injunction because he was under criminal charges.

6 years after the domestic violence injunction was placed on him, he had been acquitted of the criminal charges arising out of the events that supported the entry of the permanent injunction; (2) the parties’ marriage had been dissolved; (3) he was living in Kansas, not Florida; (4) She had moved and was living in another country, not Florida; (5) the parties had not seen each other in six years; and (6) he had made no attempt to contact her for six years. 

If you think your ex-wife or girlfriend has made a domestic violence injunction and that she was wrong and that the Court ordered your injunction based on fraud or lies or that things have changed substantially, we can help you today.

Call The Miami Law Firm at 786-454-2411 or via email at vbao@thelawmiami.com

What is the Family and Medical Leave Act of 1993 (FMLA), and what does it mean?

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What is the Family and Medical Leave Act of 1993 (FMLA), and what does it mean?

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires employers to give covered employees unpaid, job protected leave from employment. 

Coverage for employees generally requires that the employee:

  • Worked for a covered employer for at least 12 months that need not be consecutive.
  • Worked at least 1,250 hours during the 12 months immediately before the first day of the requested leave.

Coverage for employers requires a minimum of 50 employees. Employees are not covered if both:

  • They work at a facility with fewer than a total of 50 employees.
  • The employer has fewer than a total of 50 employees working within 75 road miles of that facility.

Qualifying reasons for FMLA leave may include:

  • Birth and care of an employee’s newborn child.
  • Incapacity due to:
    • pregnancy;
    • prenatal care; or
    • the employee’s serious health condition after birth.
  • Placement of an employee’s adopted or foster child with the employee.
  • Care of an employee’s immediate family member (spouse, child, or parent) with a serious health condition.
  • The employee’s serious health condition that prevents the employee from performing the functions of the job.
  • Providing care for a family member who is a covered servicemember who has a serious injury or illness.
  • Certain qualifying emergencies because a military member is on covered active duty, is on call to covered active duty status, or has been notified of an impending call or order to covered active duty status.

 If you’re an airline employee, there are special rules for airline flight crew employees.

Want more information?  Call us for a free consultation at (786) 454-2411.  Or send us an email at pleadings@thelawmiami.com.

How To Get Full Custody of a Child In Florida.

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When considering asking the Court for sole full custody of a child in Florida, the Court will look at the best interest of the child.  In most cases, this means that if both parents are alive, then it will be in the best interest of the child to have both parents involved in the child’s life.  In some cases, the Court may allow full custody of the child in Florida if one of the parents is a felon, has been found guilty of domestic violence, or any act against a child.  

If a child has two living, fit parents, both share the right to custody of the child1 and have a constitutional right to be free of undue interference by the state so long as they remain fit and agree howto parent the child. If they cannot agree, the circuit court is generally empowered to resolve the disputes. 

When a child is born outside or a marriage, and no person has attained legal father status under the paternity law, the mother has sole custody. This means that the Dad must petition the court for paternity in order to be considered the legal father of the child.    Attaining legal father status, however, does not automatically give the father any specific custodial, visitation, or time-sharing rights. The legal father’s rights are not there until the Court determines they are.  When only one parent is alive, that parent has sole custody of the child.

Want to know if you have the right to sole full custody of a child in Florida, call us for a free in person or by phone consultation at (786) 454-2411. 

Or, if you so wish, give us some insight into what’s going on with your situation and we can reply via email.

What’s a Seasonal Job

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What’s a Seasonal Job?

Seasonal employment means employment which can be conducted only during certain times of the year, and in no event does it include employment which extends for more than 14 weeks in a calendar year. Under these statutes, a door-to-door sales representative who works year-round is not a seasonal employee although commissions fluctuate during the year.  A claimant’s compensation rate is computed on the basis of a full-time work week, despite the seasonal nature of the claimant’s employment, where the claimant’s contract of hire provides for a forty-hour work week whenever work was available.

 

The second type of statute deals with employees in employments in which it is the custom to operate for a part of the whole number of working days in each year. Under these statutes, an itinerant construction worker whose work is dependent on the weather is a seasonal employee.

 

The third type of statute deals with occupations which are exclusively seasonal and therefore cannot be carried on throughout the year. These “exclusively seasonal” statutes exclude from the category of seasonal employments any occupation that is possible of performance and of being carried on through the entire 12 months.

 

Under some statutes, the term “seasonal worker” includes but is not limited to any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products. Other statutes compute the average weekly wage for agricultural employees as the weeks worked in agricultural employment divided into the total wages which the employee earned from all agricultural operations during the 12 calendar months immediately preceding the injury.

 

Under some statutes, a seasonal worker’s average weekly earnings are computed as in the case of continuous employment except that the number of hours of the normal full-time working day and the number of hours of the normal full-time working week shall be such hours and days in similar service in the same or similar nonseasonal employment. More commonly, average weekly wages are determined by dividing by 52 the seasonal worker’s earnings in the 52 weeks immediately preceding the injury. There are included in the worker’s earnings wages in one-time, concurrent jobs which are not covered by the workers’ compensation statute. Some statutes divide by 50 the total wages earned by the employee from all occupations during the 12 calendar months immediately preceding the accident, at least unless it is shown that during the year, by reason of exceptional causes, this method of computation does not fairly represent the employee’s earnings, in which case, the period for calculation is extended so far as to give a basis for the fair ascertainment of the average weekly earnings. Average monthly wages may be determined by dividing by 12 the total wages earned, including overtime, from all employment in any 12 successive calendar months preceding the injury which fairly represent the claimant’s employment pattern. Sometimes annual earnings are determined by multiplying the daily wage by the number of days in which it is the custom to operate in each year, but not less than 200. Average weekly wages are determined by dividing by 52. A statute has been held constitutional in permitting benefits for parttime and fulltime workers to be based on the average of wages for 13 weeks preceding the injury, but setting the measuring period for seasonal workers as wages earned during the 12 months preceding the injury.

 

Some statutes provide that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage. Such a provision denotes a legislative intent to apply the seasonal conditions provision to the construction and mining industries as a matter of law and to leave open the possibility of its application to other industries, subject to additional proof that the industry in question is one in which the hours of work are affected by seasonal conditions.

 

Seasonal condition, within the meaning of such a statute, is not limited to industries that actually cease operations during the winter months. It also applies to businesses that operate year-round but whose work hours are affected by climatic conditions such as rain, snow, and extreme cold. As applied to the construction industry, such a provision does not violate the equal protection clause of either the state or federal constitutions, since there is a rational distinction between part ime or irregular employment and construction industry employment where full-time employment is affected by seasonal conditions.

 

Under a statute providing that average actual earnings for four pay periods immediately preceding the injury are the employee’s wages except if for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods, it is proper, when work is sporadic and seasonal, to calculate on a larger scale than four pay periods.

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Recommendations for Employers and Temporary Employment Agencies

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Recommendations for Employers and Employment Agencies

(1) Select the temporary services provider carefully

Talk with business associates and get their recommendations for an established, reputable and qualified temporary services agency for your particular needs. Some agencies have specialties in providing a certain type of employee. Examine the agency’s familiarity with issues of joint employment and ask how the agency has handled joint employment questions when they have arisen previously.

Audit the agency’s employment policies; consider how carefully the agency screens potential employees and what training, if any, it provides for them. Although cost is certainly a factor, try to resist the urge to simply go with the cheapest provider, particularly if you require skilled labor. Remember, if the agency acts illegally toward an employee placed at your company, your company will almost certainly be sued as a joint employer. Thus, auditing your temporary agency’s policies is equally as important as auditing your own policies.

(2) Structure the relationship with the provider clearly.

If the principal goal of retaining a temporary employee provider is to distance the company from the potential liabilities associated with hiring employees directly, the company should require the temporary agency to assume most of the supervisory and fiscal responsibility for its temporary employees.

The provider should be the party to process applications, screen, test and hire applicants and should – to the extent possible – establish the terms and conditions of employment, including wages and benefits. Moreover, the provider should be the one to evaluate, reward, promote, discipline and discharge temporary employees. This requires a careful balancing of the employer’s needs and the potential for joint liability.

Unfortunately, an arrangement that best insulates an employer is not always the arrangement that best promotes business objectives. Employers should not be overzealous in drafting an agreement with a temporary service provider which may insulate it from joint liability if the cost is an unacceptable loss of operational control.

Generally speaking, the greater control the employer retains over the temporary employees, the greater his potential for liability will be. A conscious decision should be made regarding the appropriate balance between maintaining control and avoiding joint employment liability, and this decision should be memorialized by a written agreement.

(3) Monitor the relationship with the temporary employees

Ensure that both the temporary agency and the employee comply with employer policies expressed in handbooks, printed notices or memos.  Once the temporary employees arrive on site, consider the possibility of requesting that the employment agency provide them with their own supervisor to direct and oversee their work. This, of course, depends on the nature of the work and the number of temporary employees retained.

Employers with a unionized workforce and those concerned about accepting employees into an existing bargaining unit should minimize interaction between temporary employees and full-time employees so that all the employees will not be found to share a “community of interest” as defined by the NLRA, and thus be included in a collective bargaining unit.

Delineate the boundaries clearly. Distinguish temporary employees by giving them different name badges, a reduced number of company perks and restricted access to confidential company information or sites. They should also be paid from a source other than regular employee payroll. Do not interfere with a temporary employee’s opportunities for other employment if they arise.

(4) Scrutinize temporary employment relationships carefully.

Examine job classifications predominantly held by temporary employees for adverse impact on protected groups. Seek counsel regarding potential Social Security, tax and welfare benefits contributions due. Understand the potential liability existing in temporary service arrangements before entering one.

Establishing independent contractor relationships with temporary employees will not necessarily save the employer from liability. Many relationships that employers believe to be independent contractor relationships are actually employer-employee relationships. Consult the Internal Revenue Service’s new Worker Classification Manual for guidance in making the correct classification. Written independent contractor agreements are not dispositive of the nature of the relationship. Employers should ensure that the intent to create an independent contractor arrangement with an employee manifests itself in more than a label and an understanding.

(5) Audit company policies to ensure intended coverage.

Employers should carefully review their policies, particularly benefit policies, to ensure only those employees who are the intended beneficiaries are included. Many such policies are vague on the issue of employee coverage, and even vagueness will almost certainly be resolved in favor of the employees.

(6) Employment agencies should insist on a written contract

Employers may not demand a written agreement, but agencies should insist on one. Aside from assisting an agency to prepare an adequate defense in the event that an employee sues, written agreements bolster business by increasing the agency’s professional image and delineating agency and client-employer obligations and expectations.

Agencies should resist client-employer interference in employment matters, particularly where the client-employer has ceded control of the leased workforce to the agency. Apprising client-employers of the consequences of interference may be one effective way to maintain autonomy in decision making.

Finally, temporary service providers should carefully screen potential client-employers and resist accepting liability risks without first evaluating a client’s employment policies and procedures and obtaining written guarantees that the client has mandated nondiscrimination policies and employment at-will language in place.

Even if an agency’s policies and practices are above reproach, the agency may be jointly liable for the client-employer’s misconduct. The best way to handle such potential liability is to (1) make every reasonable effort to avoid the possibility of incurring it; and (2) have a clear agreement in place in which the parties agree to apportion the potential liability and defense costs in a mutually acceptable manner.

Source:

Andrews Sexual Harassment Litigation Reporter, March, 1997, Brent Giddens

Temp Employee Rights

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Temp employees have rights too, even if the employer doesn’t recognize it.  During the holiday season it is more possible that companies hire temporary workers to handle the increase in staffing requirements, or perhaps to allow permanent employees to take a break during the holiday season.

In many cases, the company doesn’t hire the employee directly, but instead hire through a temporary staffing agency.  In essence, it would appear that the staffing agency is really your boss.

The question often becomes who is liable for improper or unlawful conduct or negligence upon a temporary employee.  In many cases, the temporary staffing company will remove an employee who the company is unhappy with temp employee.  In some cases the temp agency believes that it is the company who fired the employee who is responsible for the temp.

Employers should not and cannot fire a temporary employee assuming that the employee’s staffing agency will deal with the consequences. Often the staffing agency and the client-employer are both named as defendants if the temporary employee decides to sue the company. Co-defendants in this situation who have no written agreement between them may get a little shock when they find out who exactly is liable.

Temporary employees do have rights.  As an example, a temp agency cannot work with a company to hire only white temps.  They just cannot agree to discriminate.  Often, if not always, when a temporary employee sues, the employment agency and the client-employer are both named as defendants..

The EEOC gives specific guidelines regarding temporary employee guidelines.  (EEOC) gives specific guidelines regarding temporary employees:

Staffing firm workers are generally covered under the anti-discrimination statutes. This is because they typically qualify as employees of the staffing firm, the client to whom they are assigned, or both. Thus, staffing firms and the clients to whom they assign workers may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability.

If you are being discriminated or being sexually harassed,

Speak up!  It’s important to the court that the temporary employee has told others of the discrimination or harassment.

Report the problem to both your temporary agency and the correct management chain at your assignment. They may tell you that because you are not a regular employee, you don’t have access to HR.  Not true.  If your temporary boss is sexually harassing you, then go ahead and report it to HR.  Report it to anyone in the chain of command.  If they don’t do anything, you can always report it to the EEOC.

In the meantime, ask to be reassigned. If you think you are being discriminated against, call us immediately at (786) 454-2411.  For more information about sexual harassment, please click here.

Oxycotin Lawsuit

By | Oxycontin Lawsuit | No Comments

Miami Lawsuit Against Opioid Manufacturers.

Miami has been one of the recent cities to join the federal lawsuit against opioid and Oxycontin manufacturers and distributors, blaming them for an overdose epidemic.

What claims did Miami make in the opioid and Oxycontin lawsuit? Miami claimed in the opioid epidemic that the opioid pharmaceutical companies made deceptive or false marketing about the opioid and Oxycontin prescription painkillers, including Purdue Pharma, Teva Pharmaceuticals and Walgreens.

The lawsuit claims that the opioid and Oxycontin manufacturers have been unjustly enriched by selling opioid and Oxycontin drugs, while harming the city and its services. Miami City Manager in a Miami Herald article regarding the Miami lawsuit against the opioid and Oxycontin manufacturers claimed that the pharmaceutical companies like Purdue, had “inflicted a great burden” on Miami and our nation.

Miami joins about 250 cities, counties and states that have sued opioid and Oxycontin makers, wholesalers, distributors and marketers accusing the companies of misleading doctors and the public by aggressively advertising the drugs as non-addictive and safe.

Broward and Palm Beach have also filed suit against the drug manufacturer of OxyContin.

What the opioid and Oxycontin manufacturers have denied the claims and asked for the lawsuits to stop until research can better assess long-term risks and benefits of opioids and Oxycontin .

Pharmaceutical Lawsuits: Opioid and Oxycontin manufactures.

The city’s lawsuit lists 17 defendants, including drug makers, mass distributors of prescription drugs and Walgreens pharmacies.

The Purdue Pharma complaint claimed that Purdue Pharma promoted abuse-deterrent formulations to Miami doctors and false promises that the drugs were safer than other opioids and Oxycontin .

Walgreens pharmacies are accused of failing to stop the diversion of opioids and Oxycontin for illicit use.

What you should do to join the lawsuit?

Contact us at The Miami Law Firm and join the class action lawsuit against those manufacturers, include Purdue Pharma to stop spreading addiction across our state, county and cities. Call for a free consultation at 786-454-2411.  Joining the class action is free.

Best Interest of the Child

By | Uncategorized | No Comments

Read through this interesting article from the New York Times regarding “The Best Interest of the Child”. We know that in Florida, the Courts use The Best Interest of the Child as a term of legal art, which means that you will hear it in any and all proceedings of family law where a child is involved.

The New York Times Article covers the topic of what is the best interest of the child.

Read the NY Times article. Let us help you with this tough legal challenge.

CUBAN AMERICANS SUE FOR PROPERTY SEIZED.

By | Uncategorized | No Comments

Cuban-Americans Can Sue Foreign Companies for Property Seized

Trump seems to want to allow a controversial law allowing Cuban Americans and other U.S. citizens to sue over property seized in decades past by the Cuban government.

Europe Fights Trump for Allowing Cuban-Americans to sue Cuba.

Even though European companies have threatened to protest this permission to sue, especially foreign companies headquartered in the EC, and threatened a possible WTO challenge and a cycle of counterclaims in European courts as sure to fail if the European companies fight the suit.

Foreign Companies Hurt By Trump Permission to Sue Cuba.

Which foreign companies may be affected?  The Canadian mining firm Sherritt International Corp and Spain’s Melia Hotels International SA. As well as U.S. companies, like airlines and cruise companies, have pressed hard to put their foot in the door in Cuba the moment Obama allowed companies to move into the Island Nation.

Trump, it appears, will also enforce the Helms-Burton’s Title IV, which requires the denial of U.S. visas to those involved in “trafficking” confiscated properties in Cuba.

Thousands of Cases Against Cuba for Confiscating Properties

According to a recent April 19, 2019 article by Reuters, “In major shift, Trump to allow lawsuits against foreign firms in Cuba, by Susan Heavy Matt Spetalnick, David Alexander; Washington Sarah Marsh, Marc Frank; Havana , “some 5,913 claims held by U.S. companies and individuals have been have been certified by the U.S. Justice Department and are now estimated to be worth roughly $8 billion. The Cuban Government estimates that damages will range from $121 billion to more than $300 billion.”

If you want to add your name and claim to the lawsuit, please feel free to contact us at vbao@thelawmiami.com or via phone to 786-454-2411.

Cubans Can Sue for Cuban Government for Confiscated Property

By | Uncategorized | No Comments

Donald Trump is allowing Cuban-Americans whose property was confiscated during the Castro revolution to sue the island nation and the new owners of those properties who perhaps knew or should have known that the properties they occupy today are in fact confiscated under the communist movement in Cuba.

In similar cases like Poland, where citizens were allowed to sue the government for confiscated properties, those citizens were required to show the original title to the property, and pay to relocate the current occupants of that property in order to regain it. In other examples, the lawsuits required that those suing were occupants of the property and could sue to quiet title.

The elements needed to reclaim confiscated property in Cuba by Cuban Americans will be clear soon. The key is to start the suit now before others can file the claims. Our Cuban-American attorneys can help you file an action to repossess your property in Cuba. We suggest that if you are a Cuban-American trying to claim title to your property which was confiscated by the Fidel Castro revolution, you contact us at (786) 454-2411 and ask for Vanessa Diaz to get started.

“The complexity is the fact that many European companies have taken over these properties knowing that they were confiscated, which means that legal actions will take some time.” Said Vansessa E. Diaz, Esq., Of Counsel at The Miami Law Firm. “In addition, there are current occupants to those properties making it more challenging, but not impossible. Starting your lawsuit today against the Cuban Government will be key to save your place in line.”

Here is a recent article by Reuters:
https://www.reuters.com/article/usa-cuba-lawsuits/explainer-trump-allows-lawsuits-over-cuba-confiscated-property-what-you-need-to-know-idUSL5N21Z6FB

Call The Miami Law Firm if you are interested in taking action against Cuba for confiscating your family property during the Fidel Castro illegal confiscation of property on the Island Nation.

Call (786) 454-2411 or email us at Pleadings@TheLawMiami.Com

Domestic Violence Injunction Florida

By | Uncategorized | No Comments

How Long does A Domestic Violence Injunction Last?

Once entered, a domestic violence injunction “shall remain in effect until modified or dissolved.”

How do I Remove a Domestic Violence Injunction?

Either party to a domestic violence injunction proceeding can move to modify or dissolve the injunction “at any time.” See Fla. Fam. L. R. P. 12.610(c)(6).

What do I Do to DO Now to Remove a Domestic Violence Injunction?

Although the law does not state what a party who seeks to dissolve a domestic violence injunction must prove in order to obtain that relief, the court and others have held that the person wanting to remove an injunction must show “that there has been a change in circumstances since the injunction was entered” such “that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose.”

How Does the Court Place an Domestic Violence Injunction?

For a domestic violence injunction to issue in the first place, there must be either an actual act of domestic violence or a reasonable fear that domestic violence is imminent.  

How Does a Person Extend a Non-Permanent Injunction for Domestic Violence?

When a party seeks to extend a nonpermanent injunction against domestic violence, he or she must demonstrate that an additional act of domestic violence has occurred or that there is a reasonable fear of imminent domestic violence.  

 It follows that a reasonable fear of imminent violence is also necessary to justify denying a motion to dissolve a domestic violence injunction that is otherwise supported by the requisite change in circumstances. 

An Example of Domestic Violence Injunction Changed.

In a 2019 case, a man had a domestic violence injunction placed against him.  His wife claimed he had committed domestic violence against her because he was in his car in a parking lot and told her he would kill her.  He was scared to challenge the domestic violence injunction because he was under criminal charges.

6 years after the domestic violence injunction was placed on him, he had been acquitted of the criminal charges arising out of the events that supported the entry of the permanent injunction; (2) the parties’ marriage had been dissolved; (3) he was living in Kansas, not Florida; (4) She had moved and was living in another country, not Florida; (5) the parties had not seen each other in six years; and (6) he had made no attempt to contact her for six years. 

If you think your ex-wife or girlfriend has made a domestic violence injunction and that she was wrong and that the Court ordered your injunction based on fraud or lies or that things have changed substantially, we can help you today.

Call The Miami Law Firm at 786-454-2411 or via email at vbao@thelawmiami.com

What is the Family and Medical Leave Act of 1993 (FMLA), and what does it mean?

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What is the Family and Medical Leave Act of 1993 (FMLA), and what does it mean?

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires employers to give covered employees unpaid, job protected leave from employment. 

Coverage for employees generally requires that the employee:

  • Worked for a covered employer for at least 12 months that need not be consecutive.
  • Worked at least 1,250 hours during the 12 months immediately before the first day of the requested leave.

Coverage for employers requires a minimum of 50 employees. Employees are not covered if both:

  • They work at a facility with fewer than a total of 50 employees.
  • The employer has fewer than a total of 50 employees working within 75 road miles of that facility.

Qualifying reasons for FMLA leave may include:

  • Birth and care of an employee’s newborn child.
  • Incapacity due to:
    • pregnancy;
    • prenatal care; or
    • the employee’s serious health condition after birth.
  • Placement of an employee’s adopted or foster child with the employee.
  • Care of an employee’s immediate family member (spouse, child, or parent) with a serious health condition.
  • The employee’s serious health condition that prevents the employee from performing the functions of the job.
  • Providing care for a family member who is a covered servicemember who has a serious injury or illness.
  • Certain qualifying emergencies because a military member is on covered active duty, is on call to covered active duty status, or has been notified of an impending call or order to covered active duty status.

 If you’re an airline employee, there are special rules for airline flight crew employees.

Want more information?  Call us for a free consultation at (786) 454-2411.  Or send us an email at pleadings@thelawmiami.com.

How To Get Full Custody of a Child In Florida.

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When considering asking the Court for sole full custody of a child in Florida, the Court will look at the best interest of the child.  In most cases, this means that if both parents are alive, then it will be in the best interest of the child to have both parents involved in the child’s life.  In some cases, the Court may allow full custody of the child in Florida if one of the parents is a felon, has been found guilty of domestic violence, or any act against a child.  

If a child has two living, fit parents, both share the right to custody of the child1 and have a constitutional right to be free of undue interference by the state so long as they remain fit and agree howto parent the child. If they cannot agree, the circuit court is generally empowered to resolve the disputes. 

When a child is born outside or a marriage, and no person has attained legal father status under the paternity law, the mother has sole custody. This means that the Dad must petition the court for paternity in order to be considered the legal father of the child.    Attaining legal father status, however, does not automatically give the father any specific custodial, visitation, or time-sharing rights. The legal father’s rights are not there until the Court determines they are.  When only one parent is alive, that parent has sole custody of the child.

Want to know if you have the right to sole full custody of a child in Florida, call us for a free in person or by phone consultation at (786) 454-2411. 

Or, if you so wish, give us some insight into what’s going on with your situation and we can reply via email.

Recommendations for Employers and Temporary Employment Agencies

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Recommendations for Employers and Employment Agencies

(1) Select the temporary services provider carefully

Talk with business associates and get their recommendations for an established, reputable and qualified temporary services agency for your particular needs. Some agencies have specialties in providing a certain type of employee. Examine the agency’s familiarity with issues of joint employment and ask how the agency has handled joint employment questions when they have arisen previously.

Audit the agency’s employment policies; consider how carefully the agency screens potential employees and what training, if any, it provides for them. Although cost is certainly a factor, try to resist the urge to simply go with the cheapest provider, particularly if you require skilled labor. Remember, if the agency acts illegally toward an employee placed at your company, your company will almost certainly be sued as a joint employer. Thus, auditing your temporary agency’s policies is equally as important as auditing your own policies.

(2) Structure the relationship with the provider clearly.

If the principal goal of retaining a temporary employee provider is to distance the company from the potential liabilities associated with hiring employees directly, the company should require the temporary agency to assume most of the supervisory and fiscal responsibility for its temporary employees.

The provider should be the party to process applications, screen, test and hire applicants and should – to the extent possible – establish the terms and conditions of employment, including wages and benefits. Moreover, the provider should be the one to evaluate, reward, promote, discipline and discharge temporary employees. This requires a careful balancing of the employer’s needs and the potential for joint liability.

Unfortunately, an arrangement that best insulates an employer is not always the arrangement that best promotes business objectives. Employers should not be overzealous in drafting an agreement with a temporary service provider which may insulate it from joint liability if the cost is an unacceptable loss of operational control.

Generally speaking, the greater control the employer retains over the temporary employees, the greater his potential for liability will be. A conscious decision should be made regarding the appropriate balance between maintaining control and avoiding joint employment liability, and this decision should be memorialized by a written agreement.

(3) Monitor the relationship with the temporary employees

Ensure that both the temporary agency and the employee comply with employer policies expressed in handbooks, printed notices or memos.  Once the temporary employees arrive on site, consider the possibility of requesting that the employment agency provide them with their own supervisor to direct and oversee their work. This, of course, depends on the nature of the work and the number of temporary employees retained.

Employers with a unionized workforce and those concerned about accepting employees into an existing bargaining unit should minimize interaction between temporary employees and full-time employees so that all the employees will not be found to share a “community of interest” as defined by the NLRA, and thus be included in a collective bargaining unit.

Delineate the boundaries clearly. Distinguish temporary employees by giving them different name badges, a reduced number of company perks and restricted access to confidential company information or sites. They should also be paid from a source other than regular employee payroll. Do not interfere with a temporary employee’s opportunities for other employment if they arise.

(4) Scrutinize temporary employment relationships carefully.

Examine job classifications predominantly held by temporary employees for adverse impact on protected groups. Seek counsel regarding potential Social Security, tax and welfare benefits contributions due. Understand the potential liability existing in temporary service arrangements before entering one.

Establishing independent contractor relationships with temporary employees will not necessarily save the employer from liability. Many relationships that employers believe to be independent contractor relationships are actually employer-employee relationships. Consult the Internal Revenue Service’s new Worker Classification Manual for guidance in making the correct classification. Written independent contractor agreements are not dispositive of the nature of the relationship. Employers should ensure that the intent to create an independent contractor arrangement with an employee manifests itself in more than a label and an understanding.

(5) Audit company policies to ensure intended coverage.

Employers should carefully review their policies, particularly benefit policies, to ensure only those employees who are the intended beneficiaries are included. Many such policies are vague on the issue of employee coverage, and even vagueness will almost certainly be resolved in favor of the employees.

(6) Employment agencies should insist on a written contract

Employers may not demand a written agreement, but agencies should insist on one. Aside from assisting an agency to prepare an adequate defense in the event that an employee sues, written agreements bolster business by increasing the agency’s professional image and delineating agency and client-employer obligations and expectations.

Agencies should resist client-employer interference in employment matters, particularly where the client-employer has ceded control of the leased workforce to the agency. Apprising client-employers of the consequences of interference may be one effective way to maintain autonomy in decision making.

Finally, temporary service providers should carefully screen potential client-employers and resist accepting liability risks without first evaluating a client’s employment policies and procedures and obtaining written guarantees that the client has mandated nondiscrimination policies and employment at-will language in place.

Even if an agency’s policies and practices are above reproach, the agency may be jointly liable for the client-employer’s misconduct. The best way to handle such potential liability is to (1) make every reasonable effort to avoid the possibility of incurring it; and (2) have a clear agreement in place in which the parties agree to apportion the potential liability and defense costs in a mutually acceptable manner.

Source:

Andrews Sexual Harassment Litigation Reporter, March, 1997, Brent Giddens