Cypen & Cypen
JUNE 23, 2005
Stephen H. Cypen, Esq., Editor
A cover story in the upcoming Benefits & Compensation Digest is entitled “Employees on the Front Lines: A Summary of Military Leave Developments.” On September 20, 2004, the U.S. Department of Labor issued proposed regulations interpreting the uniformed services Employment and Reemployment Rights Act. The proposed regulations were issued to provide clarification to employers on how to comply with USERRA in key areas, but do not represent a significant change from previous interpretations. Employers must be aware of the obligations imposed by USERRA, which the proposed regulations reiterate applies to virtually all employers. USERRA makes it unlawful for any employer to deny employment to employees or potential employees who: are currently members of the uniformed services, apply for membership in the uniformed services, are currently on active duty or have applied or have an obligation to enter active duty. (The proposed regulations do make a distinction between state and federal service while in the National Guard or the Air National Guard. Reservists are only protected by USERRA if serving in a federal service capacity. USERRA does not protect a reservist in the National Guard or Air National Guard if he is called upon to serve in nonfederal service.) The proposed regulations clarify that a returning employee is eligible for reemployment with the employer when each of the following criteria is satisfied:
The proposed regulations clarify how the provisions of USERRA apply to the following employee compensation and benefits:
The article also briefly treats the Veterans Benefits Improvement Act of 2004 (see C&C Newsletter for December 23, 2004, Item 1).
A homeowners’ association prohibits parking of commercial vehicles within the community except when parked in a garage with the garage door fully closed. The term “commercial vehicle” is defined under the homeowners’ association rules as all automobiles, trucks and other vehicular equipment including station wagons that bear signs or shall have printed on the sides reference to any commercial undertaking or enterprise. The association advised a police officer that the parking of his marked police cruiser in his driveway may violate the prohibition against commercial vehicles. The law officer is with a municipality other than the one within which the homeowners’ association is located, and has been assigned a marked police cruiser to take home. In a slam-dunk opinion (a page and a half), the Florida Attorney General held that a marked police vehicle does not constitute a vehicle with reference to a commercial undertaking or enterprise. “Commercial” generally means having financial profit as its primary aim. Provision of law enforcement services is an integral and constituent part of government. It is the performance of a governmental duty owed to the general public at large. The assignment of a police vehicle to an officer to drive during off-duty hours may provide quicker response when called to an emergency -- a direct benefit to the public. In addition, presence of a police vehicle in a neighborhood may serve as a deterrent to crime. (AGO 2005-36, June 16, 2005.)
Any questions of timeliness as to a request for arbitration are to be decided by the arbitrator, not the trial court. The foregoing is true even if the time requirement for arbitration is labeled a condition precedent. Mere delay creating untimeliness is distinct from active participation that creates a waiver. Combining analyses of the issues of timeliness and waiver is reversible error. Alderman v. City of Jacksonville, Fire and Rescue Division, 30 Fla. L. Weekly D1368 (Fla. 1st DCA, May 31, 2005).
A city firefighter suffered a heart attack in 1991, while Florida League of Cities, Inc. provided workers’ compensation coverage. At that time, claimant was, and continues to be, entitled to the statutory presumption of compensability for coronary artery disease provided by Section 112.18(1), Florida Statutes. Nevertheless, claimant had received full salary during his hospitalization and recovery. Preferred Governmental Solutions assumed the workers’ comp risk on October 1, 2000, after which claimant again suffered cardiac complications. The judge of compensation claims ruled that Preferred Governmental Solutions was not liable because claimant had been paid in full, and, therefore, was not disabled. The district court of appeal reversed: under Section 440.151(5), Florida Statutes, the carrier on risk at time of last injurious exposure shall alone be liable when compensation is payable for an occupational disease. In this case, claimant’s performance of his firefighting duties constituted the last injurious exposures before his periods of disablement in 2001 and 2003. “Disability” means incapacity, because of an injury, to earn in the same or any other employment the wages that the employee was receiving at time of injury. Determining whether a person is disabled for purposes of workers’ compensation turns upon the person’s capacity to earn income, not upon the employer’s decision to pay the injured person’s salary while he is incapacitated. There is no dispute that, during the periods in question, claimant was incapable of performing his duties as a firefighter and, thus, did not have actual capacity to earn his wages as a firefighter. City of Mary Esther v. McArtor, 30 Fla. L. Weekly D1413 (Fla. 1st DCA, June 7, 2005).
This case stems from a Qualified Domestic Relations Order entered in conjunction with a dissolution of marriage involving a husband who was a member of the Florida Retirement System. (Remember, FRS honors -- inappropriately, in our judgment -- QDROs. See Special Supplement to Cypen & Cypen Newsletter, February, 1997.) Prior to final hearing, the parties entered into a settlement agreement by which the wife was awarded “full ownership” of her percentage of the husband’s State of Florida retirement as stated in the QDRO. Subsequently, the wife sought to modify the QDRO, asking the court to conform it to the terms of the settlement agreement, which had described the retirement award in terms of equitable distribution, not alimony. Specifically, she challenged the wording contained in the QDRO that conditioned payment of her share of the husband’s retirement on contingencies that rendered the award more in the nature of alimony than equitable distribution. The trial judge granted summary judgment in favor of the husband, but on the wife’s appeal, the appellate court reversed. Although the wife’s motion was improperly styled as a motion to modify, the allegations directed the trial court’s attention to the issue of whether the QDRO properly carried out the terms of the agreement that was ratified and incorporated into the final judgment. A reading of the agreement led the higher court to conclude that the parties intended the distribution to include “full ownership”; thus, limitations regarding the wife’s marital status or the length of her life are not consistent with such full ownership. Where a party only seeks to receive what is contemplated by a property settlement agreement incorporated into a final dissolution judgment, the relief sought is enforcement rather than modification. Self v. Self, 30 Fla. L. Weekly D1467 (Fla. 2d DCA, June 10, 2005). (One problem may have been that the parties were not represented by attorneys at the time of settlement and dissolution of their marriage. In other words, the Selfs were self-represented. Couldn’t resist.)
In reviewing data in its annual study of retirement plans offered by S&P 500 companies, Mercer found some surprising results. Based on investment performance of plan assets, 2004 should have been a good year for pension plans and their sponsors. Investment returns were good for the second year in a row, following the dismal period from 2000-2002. But, curiously, plan costs did not decrease as one might have expected. Some specific findings are
Mercer believes that these data will make some private companies continue
to question whether a defined benefit plan is an appropriate retirement
vehicle. However, most companies will probably opt to continue their
defined benefit plans (or some modification thereof), recognizing the
significant value they deliver to the company and its employees. These
companies will also recognize that this value comes at a cost that
is independent of the investment results of plan assets. Their benefit
policy decisions will be based on the “true” economic cost
of the program, undistorted by the risk and rewards of bearing investment
risk on the plan assets.
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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.