By: Kyle Jensen, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Acquiring an established and successful business may appear to be an attractive and low risk proposition for both experienced or novice entrepreneurs; however, there are numerous issues a prospective buyer should consider and pitfalls to avoid before purchasing a business. Asking the right questions and conducting proper due diligence can save the buyer significant time and money and put the buyer in a strong position to succeed once it purchases the business.

Generally, there are two basic ways businesses are sold. The first is the sale of the ownership interests of the business. The second is the sale of the assets of the business. Each avenue provides various benefits and detriments, and a prudent buyer will consider all factors before determining how it will acquire the business. For example, purchasing the ownership interests of the seller allows for a smooth transition of the business, but may also expose the buyer to significant liabilities. Further, purchasing the assets of the seller may, but not always, allow the buyer to avoid certain liabilities of the seller, but may also require the buyer to renegotiate advantageous contracts with the seller’s vendors and customers.

Regardless of whether the buyer is purchasing the seller’s ownership interests or the seller’s assets, the buyer should determine the potential liabilities the buyer may be exposed to after the purchase, such as whether there are any (i) outstanding lawsuits against the seller, (ii) outstanding taxes due, or (iii) security interests filed against the seller’s assets. It is vital that the buyer ascertain its exposure to potential liabilities and either adjust the purchase price of the business accordingly or walk away from the deal.

Other issues the buyer should consider relate to the operation of the business once purchased. For example, the buyer may want to obligate certain owners or employees of the seller to assist the buyer with the transition and operation of the business after closing. The buyer may also want to impose a non- compete on the seller and its owners, prohibiting them from competing with the buyer in its business. Lastly, if the seller is renting the premises where it operates, then the buyer should carefully review the lease to confirm the terms are agreeable to the buyer and that the seller can assign and the buyer can assume such lease. It is always prudent for the buyer to require the seller to obtain the landlord’s consent to such assignment.

The above items are just a few of the numerous issues a buyer must consider when purchasing a business. Accordingly, it is often in the best interest of a buyer to retain an experienced business attorney to assist them with purchasing a business.

Kyle Jensen is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Clark, Campbell, Lancaster & Munson, P.A.

Question: What information may an employer access from an employee’s employer-issued mobile device?

Answer: If proper procedures are followed, employers are entitled to recover any information an employee has stored on an employer-issued device.

Interception of Electronic Communications and the Cloud
As technology advances, sometimes the law is painfully slow in keeping up with it. While many people still don’t quite understand how “the cloud” works, it has been a way for people to store their information without having to plug a phone into a computer to keep it backed up. This process ensures users that should a phone become lost, damaged, or replaced, the cloud allows customers to easily access old information and provides a seamless transition to a different device that includes all of the messages, photos, contacts, and music that was on the previous device. While most people frequently use this type of technology with regards to cell phones, it is equally common to connect laptops and tablets to the cloud.

The cloud becomes complicated when it comes to employer-issued devices because the line between what is work and what is personal to the employee begins to blur. If an employee sets up a cloud account on an employer-issued device and receives personal text messages on that device, can an employer use that information in any future lawsuit stemming from the employer- employee relationship? If certain procedures are followed, then the answer is probably yes.

The federal government has enacted the Electronic Communications Privacy Act (commonly referred to as the “Wiretap Act”) which prohibits the unauthorized interception or access to electronic communications. The Wiretap Act imposes civil and criminal penalties on any potential offender. Similarly, the federal government has enacted the Stored Communications Act, which prohibits the unauthorized access of stored wire and electronic communications and transactional records held by third-party internet service providers (ISPs). The State of Florida has adopted provisions that mirror its federal counterparts.

Collectively, these laws would seem to hinder employers from accessing information that is received by, or is stored on, an employer-issued device. While the law is not fully up to date with regards to cloud technology, there two critical trends in the law that allow employers to access information on a employer-issued device.

First, the Wiretap Act has an intentionality requirement that means it will not apply to many employers. This means that if an employee downloads his or her cloud account onto an employer-issued device, the employee is the one who caused that information to be stored on that device, not the employer. In a recent federal case, an employer sued a former employee for violating the employee’s contractual non-compete clause, using texts the employer had received on a work iPhone because the employee set up an Apple iCloud account. The court ruled that the employee was at fault for setting up the cloud account, and the employer did not violate the Wiretap Act because the employer did not intercept the communications intentionally.

Second, both the Wiretap Act and Stored Communications Act have consent provisions that exempt certain parties from the law. While most employees don’t realize it, employment policy handbooks or manuals that are given to new employees may contain a consent provision that allows an employer to store and monitor communications on an employer-issued device. Several courts have found that these consent provisions, with regards to using an employer-issued device, are enough to overcome liability that may be imposed by the Wiretap Act and Stored Communications Act.

Conclusion
Provisions in employer-issued employee manuals may address what information the employer is entitled to access and monitor on employer-owned devices. As long as the employer is not taking proactive steps to confiscate personal messages from an employee, it is unlikely that any criminal or civil liability will arise. The employer may be able to use information stored on an employer-issued device in a dispute should an employee or former employee decide to initiate litigation against them. In any case, consulting with an attorney is the best course of action before using any information on an employer-issued device.

Questions can be submitted to thelaw@cclmlaw.com.

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

The Family & Medical Leave Act (FMLA) is a federal law which seeks to balance the demands of the workplace with the needs of the family by entitling employees to take reasonable leave for medical reasons, birth or adoption of children, and to care for family members with a serious health condition.

Not all employers are subject to the requirements of the FMLA. For a private employer to be a covered employer under the FMLA the employer must employ 50 or more employees in 20 or more workweeks in the current or previous calendar year. Different requirements apply to public employers and schools.

For an employee to be eligible for leave under the FMLA the employee must (1) work for a covered employer, (2) have worked for the employer for at least 12 months as of the date that the employee is to take leave under the FMLA, (3) have worked at least 1,250 hours for the employer in the preceding 12-month period from the date the employee is to take leave under the FMLA, and (4) work at a location where the employer employs at least 50 people within 75 miles of the employee’s worksite.

Once it is determined that an employee is entitled to leave under the FMLA, an eligible employee may take up to 12 workweeks of leave within a 12-month period. An employee is entitled to take leave in the following situations: (1) the birth or adoption of child, (2) to care for a family member who has a serious health condition, (3) for an employee’s own serious health condition, and (4) for certain circumstances relating to a family members military service. In some circumstances, leave can be extended for military caregivers.

Important Considerations for Employers

• Covered employers are required to post and keep posted, in conspicuous places, a poster setting forth excerpts from, or summaries of, the pertinent parts of the FMLA. Additionally, a general notice regarding the FMLA must be included in employee handbooks or provided to new hires.
• If an employee requests leave under the FMLA the employer must provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA.
• If an employee’s leave is designated as FMLA leave the employer must provide to the employee a designation notice stating that the leave qualifies as FMLA leave, outline the requirements of the employee while on leave, and, if known, the amount of leave that will be deducted from the employee’s entitlement to FMLA leave.
• In certain situations, an employer is entitled to request a certification from the employee which supports the employee’s need for leave under the FMLA. The certification process allows the employer to obtain information regarding the employee’s request for leave.
• In certain situations, employers may require employee to take accrued paid leave like sick or vacation leave to cover the requested FMLA leave.
• Employers must maintain the employee’s coverage in group health plan when on FMLA leave in the same manner as when the employee was not on FMLA leave.
• When an employee returns from FMLA leave the employee must be put back in to the same position as when the leave commenced or be placed in an equivalent position with equivalent payments and benefits.
• Importantly, an employer can be liable for various damages, including wages, salary, employment benefits, costs, and attorney’s fees, if the employer interferes, restrains, or denies rights provided for under the FMLA.

If your company is facing an issue related to the FMLA or wants to ensure compliance with the standards set forth in the FMLA, contact an attorney immediately to protect your rights as the FMLA is a complex federal law with many nuances.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.