Even though it may be called a gratuity, this required amount is a service charge and not a tip. These charges become part of the employer’s gross receipts and are not counted as tips received, even when they are paid over to you by your boss. The money paid to you can go toward your employer’s obligation to pay you the minimum wage, but it is not counted when determining whether you receive enough money in tips to be considered a tipped employee under the Fair Labor Standards Act (FLSA).
Explore some of our most frequently asked questions by selecting a category or simply browse the questions by scrolling down.
Overtime & Unpaid Wages
My restaurant imposes an automatic 15% gratuity on parties of seven or more. Does that amount count as a tip?
My job description classifies me as an exempt employee. Does that make me exempt?
Not necessarily. What matters is whether the job duties which you actually perform meet the criteria for exemption from overtime. There are different tests that apply to the exemptions for executive, administrative and professional employees, outside salespeople, and workers in certain computer positions. Don’t rely on your job description or your boss’ assurances. If in doubt about your exempt status, contact our office for a free case review.
Does the FLSA require my employer to pay me for meal breaks and rest periods?
Unfortunately, the Fair Labor Standards does not require employers to provide meal breaks or rest breaks for employees. Additionally, the State of Florida doe not require employers to provide these reset breaks. However, if the employer provides rest periods of 20 minutes or less, then these are generally considered hours worked and the employee should be paid for these breaks.
Can my employer hold my last paycheck? When does my employer have to pay me my last paycheck?
There is no requirement under the FLSA for the employer to pay you your final paycheck within a specific number of days. However, the FLSA does require the employer to pay an employee their last paycheck at the normal payday interval when other employees should be paid for that time.
Additionally, we are routinely contacted by employees whose employers take monies from their last paycheck for various reasons. Assuming the employee did not sign an agreement allowing the employer to take money from the employee’s last paycheck, then the employer cannot take money from the paycheck if doing so would reduce the employees below the minimum wage.
If an employer improperly reduces the employee's paycheck below the minimum wage, then the employee may be entitled to the amount of the unpaid wages, liquidated damages, and attorneys fees and costs.
Can My Employer Fire or Punish Me if I Make a Claim for My Unpaid Wages?
The Fair Labor Standards Act includes an anti-retaliation provision that forbids employers from taking adverse action against employees who attempt to enforce their rights under the FLSA (formally or informally). This means that if an employee files a lawsuit, inquires about, or complains about not receiving unpaid wages, and the employer takes adverse action against the employee, then the employee may be entitled to lost wages and mental anguish damages.
Can My Employer Deduct the Credit Card Service Charge From My Tip When the Customer Pays With a Credit Card and Puts the Tip on
Yes. The law does allow the employer to make this deduction. So, for example, if the credit card company charges 3% of the total amount of the transaction, your boss can withhold 3% of the tip and only give you 97% of the tip amount.
What Is Minimum Wage? Does My Employer Have to Pay Me the Minimum Wage?
The Fair Labor Standards Act (FLSA) establishes a federal minimum wage requirement for all employees in the United States. Currently, the Federal Minimum Wage is $7.25 and applies to all employees employed by:
- Businesses with annual gross revenue of at least $500,000;
- Smaller businesses that are engaged in interstate commerce or production of goods for interstate commerce;
- Individual employees that are employed in jobs where the employee is engaged in interstate commerce;
- Employees of federal, state, or local government agencies, hospitals, schools, and domestic workers
However, please note that the State of Florida has its own minimum wage law, which is higher than the Federal Minimum Wage. Currently, the Florida Minimum wage is $8.25 per hour and increases yearly.
What Is “Chinese Overtime”?
Chinese overtime also referred to as the fluctuating workweek, is a method of paying overtime to an employee when the employee works over 40 hours a week, without destroying some of the benefits of having the employee be an “exempt employee.”
Under this method of paying overtime, the employer pays the employee a fixed salary for work up to 40 hours a week, but on the occasions when the employee works over 40 hours a week, the employer only has to pay half-time for the hours over 40 hours a week. To comply with the FLSA and qualify for “Chinese Overtime”, the employee’s hours must vary from week to week, that rate of pay used to calculate the employee’s half-time overtime rate must not fall under the federal minimum wage, and the employer and employee clearly understand that the salary will cover all hours worked in a workweek, even if only a small amount of time is worked. While this is a lawful pay practice if implemented correctly, mistakes and abuses that deny workers proper compensation are considered FLSA violations.
What Does It Mean to Be Exempt From Overtime Under the FLSA?
All employees are entitled to be paid overtime unless they fall within a specific overtime “exemption. Generally, there are three main exemptions – executive, professional, and administrative. If your position qualifies under one of these exemptions, then you are not entitled to overtime pay under the FLSA. However, it is not the job title that dictates whether the position is exempt from overtime and it does not matter if you agreed to work as a salaried employee. Instead, an evaluation of the job duties is necessary to determine if you are an exempt employee. This means that even if you agree to be a salaried employee, or if your job title sounds like it would be exempt, you may still be entitled to overtime as long as your job duties do not satisfy the exemption. Some other common exemptions are
- Commissioned salespeople who work in retail establishments
- Computer professionals earning at least $27.63 per hour
- Drivers, driver’s helpers, loaders, and mechanics employed by certain motor carriers
- Farm workers employed on small farms
- Automobile dealership mechanics, parts workers, and salespeople
- Salaried executive, administrative, professional, and outside sales employees
How Long Do I Have to File a Lawsuit for Unpaid Wages and Overtime?
The FLSA provides for a two-year statute of limitations for employees to seek payment for unpaid minimum wages and overtime pay (extended three years if the employer willfully violated the FLSA). This means that once the lawsuit is filed, the employee can “look back” for two (2) years (and up the three (3) years for willful actions).
The statute of limitations prevents the employee from recovering unpaid wages for the period greater than (2) years before the date that the Complaint was filed (and up the three (3) years for willful actions). As such, if your employer did not pay you at least the minimum wage for every hour that you worked or did not pay you overtime, you need to speak with a wage and hour attorney immediately to protect your rights.
Does my employer have to pay me overtime?
The FLSA requires that all “non-exempt” employees should be paid overtime for all hours worked in excess of 40 hours per work week.
If you are entitled to overtime, the FLSA requires employers to pay overtime at a rate of no less than one and one-half times the employee’s regular hourly rate. There are some exceptions for occupations such as law enforcement, firefighters, and health care workers.
Please note that the FLSA also allows exceptions for employees that are classified as exempt under the “Administrative Exemption”, “professional exemption”, and the “Executive exemption”/”management exemption.” To learn more, click here.
Can my employer make me work overtime?
Generally, an employer can require employees to work more than 40 hours in a workweek, and can even discipline or fire employees for refusing to work over 40 hours. The FLSA does not establish the number of hours that an employer can require employees to work in a given week or day. Instead, the FLSA only requires the employer to provide overtime pay for hours worked beyond 40 hours in a workweek.
Please note that under Florida law, there is a separate statute that entitles an employee to overtime if the employee is paid on a daily rate and the employee works over 10 hours in a work day (and is not otherwise exempt from overtime). In other words, if the employee, is paid a specific amount per day, and the employee works more than ten (10) hours in a workday, then the employee is entitled to overtime for all hours that they work over ten (10) hours in a work day.
Can I get overtime if I am paid a salary?
The decision of whether you are entitled to overtime is not solely based on whether you are paid a salary, but it depends on whether you meet the requirements of the specific overtime exemption (administrative, executive, professional, etc.).
Assuming that your job activities meet these exempts, then you still must be paid a salary of at least $23,600 annually or $455 per week. If your employer does not pay you at least $23,600 annually or $455 per week, then that may void their ability to claim that you are exempt from overtime, which would entitle the employee to overtime.
Am I exempt from the overtime requirements if I’m paid a salary instead of hourly?
Not necessarily. This is a common misconception held by employees and their employers. It is true that in order to fall under one of the white-collar exemptions as an executive, administrative or professional employee, you must be paid on a salary basis of at least $455 per week. However, there are other requirements in addition to the salary basis test. For each category of exemption, the employee must meet certain criteria to be exempt. See our page on Overtime Exemptions for more information.
Am I entitled to mileage for driving back and forth to the doctor?
If an employee has a valid workers’ compensation claim, they are entitled to be paid mileage to and from all medical appointments. However, the employee must keep a list of the dates that they went to the doctor and the number of miles which they traveled.
This information should be submitted to the insurance carrier or your attorney who will submit it to the carrier on a regular basis. While medical mileage may not add up to a lot of money, it does help compensate the employee for having to drive to the doctor. Additionally, it keeps your workers’ compensation claim open. Please note that if you do not have a vehicle or you’re not able to drive, then the insurance company is required to provide you transportation, you just have to request it.
Am I entitled to “double time” or “time and a half” for working on holidays?
The Fair Labor Standards Act does not require an employer to pay an employee “double time” or “time and a half” for working on holidays. Additionally, an employee is not entitled to additional pay under the FLSA for weekend or night work. However, an employer can separately contract with their employees to offer this additional pay.
Do I need to hire a personal injury lawyer after a car accident?
Short answer – yes! Longer answer – It is always a good idea to work with an attorney if you were injured in an accident. Generally, plaintiffs who hire personal injury lawyers to represent them have a higher likelihood of settlement, receive higher amounts, and are more satisfied (on average) than plaintiffs who attempt to negotiate or recover damages on their own. When you are injured, it is difficult to focus on healing and deal with insurance companies and medical bills at the same time.
The experienced car accident attorneys at the Law Office of J.J. Talbott can assist you in getting the medical care you need, help compile your medical records, compute your damages, and work to settle your case, all while you work on getting better.
What should I do immediately after a car accident?
The very first thing you should do in the event of a car accident is to contact law enforcement. Regardless of how you feel, or what the other parties suggest, we firmly believe that it is helpful to get an accident report and to have law enforcement investigate the accident.
Second, seek medical attention immediately. Often you may not feel hurt, as your adrenaline may be preventing you from feeling the full extent of your injuries. Additionally, some injuries can take days to present themselves. As such, we believe that it is important to have a full medical examination by a medical professional.
If you are able, take pictures of the accident scene, as this may be helpful later. You should never admit fault, even if you think that the accident was your fault. Quite simply, you may not be in a position to know all of the details of the accident at that time.
Finally, get the contact details and insurance information of anyone involved in the accident (law enforcement can help facilitate this). Then, contact a lawyer who can evaluate your claim and immediately devise a plan to protect your rights.
Another driver ran a stop sign and hit me. Can I still recover compensation from the negligent driver who hit me, even if I was
The answer to your questions depends on whether you are considered to have been negligent in your own driving and, if so, the laws of the state you live in. Florida follows the rule of pure comparative negligence, which means you can recover against the other driver, but your recovery is reduced by the percentage of blame assigned to you. Even if you are considered to have been more than 50% at fault in causing the accident, you could still recover. Alabama, on the other hand, follows the rule of pure contributory negligence, where the slightest blame on your part could keep you from recovering a single penny.
When representing injured clients in either state, our attorneys fight hard to make sure you are not unfairly saddled with any of the fault for an accident you did not cause.
The Insurance Company Offered Me Some Money Right After the Accident-Should I Accept It?
If the insurance company tries to offer you money immediately after the accident, they are NOT making this offer out of the kindness of their heart, but in an attempt to settle the claim quickly and to limit their exposure for full damages. The Pensacola accident lawyers at the Law Office of J.J. Talbott do not believe that you should accept an initial settlement offer without legal counsel — such an offer is likely to be well below the amount to which you are actually entitled and is likely not in your best interest.
Moreover, your medical condition could get worse. If you settle your case immediately after the accident, then you could be responsible for all future medical care and medical bills, and you may not be compensated for all of your damages. Be sure to talk to an attorney before you sign any documents or settle your case.
Are Dog Owners Liable Whenever Their Dog Bites a Person?
Florida law imposes strict liability on dog owners. This means the owners are liable whenever their dog bites another, regardless of whether the owner was being careful or negligent with the dog and whether the owner had any reason to believe the dog might be dangerous. The only exception is when the owner had a “Bad Dog” sign posted prominently in the yard and was not otherwise negligent, but this exception only applies if the victim of the attack was six years old or older.
Alabama dog bite law is a little more complex. Generally speaking, an owner who is careless with the animal, such as allowing it to roam free off-leash, can be liable for injuries caused. Even without negligence, an owner can still be held strictly liable in certain circumstances, but the amount of damages may be reduced if the owner had no knowledge that the animal may be dangerous.
What if I’m Not Happy With My Doctor?
Under the Florida Workers’ Compensation Law, the employer chooses all authorized treating physicians. However, if the employee is unhappy with their choice of treating physician, then they have a right to a one-time change in treating physician.
The employee must request this one-time change, usually in writing, and the employer has five days to select a new physician. If the employer selects the physician within five days, then the employer chooses the new physician. However, if the employer/carrier does not select a physician within five days, then the employee is entitled to select the treating physician.
Please note that you are only entitled to a change in treating physician for one time during the entire course of treatment. As such, at the Law Office of J.J. Talbott, we recommend that our clients do not select a change in treating physician early on in the case as it may be necessary to change doctors at a later date.
What if I Can’t Return to Work After I Reach Maximum Medical Improvement?
Under the Florida workers’ compensation law, once you reach maximum medical improvement, you are entitled to two types of benefits: impairment benefit or permanent total disability benefit.
Impairment benefits are a nominal amount of benefits, usually a few thousand dollars, which compensate you for your impairment based on the permanent impairment rating that the physician has provided you.
For example, if the physician gives you a 3% impairment to the body as a whole, you’re entitled to six weeks of impairment benefits. If you have returned to work and are making the same amount of money as you were at the time of the accident, then the impairment benefits are simply 50% of your average workers’ compensation check. If you have not returned to work or are not making the same as you were at the time of the accident, then the impairment benefits are 75% of the average compensation check.
Impairment benefits cease when you’ve been paid the specific number of weeks of impairment benefits. However, if an employee is unable to return to any type of gainful employment, then the employee could be entitled to permanent total disability benefits. It is very hard to prove entitlement to permanent total disability benefits so you need to talk to your attorney about whether you would qualify.
If an employee is permanently totally disabled, then they are entitled to two-thirds of their average weekly wage until approximately age 75 (with exceptions). The employee may also be entitled to a cost of living increase at the rate of 3% per year.
Unfortunately, if the employee is not permanently totally disabled, then they would only be entitled to impairment benefits. This leaves a significant gap for an injured worker who has a significant wage loss as the result of the injuries.
What does the law mean about “medically necessary treatment?”
A medically necessary treatment is any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to your diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. Such treatment should be widely accepted among healthcare providers and not be experimental in nature.
As you can see, terms like “medically necessary treatment” have both medical and legal components to them. See an approved doctor for your diagnosis and treatment, but see an experienced workers’ compensation attorney when filing your claim or appealing a denial of benefits.
Should I Quit My Employment?
Many employees indicate that they are treated differently once they file a workers’ compensation case or indicate that the employer makes them work with restrictions. As such, they indicate that they want to quit their job.
At the Law Office of J.J. Talbott, we do not recommend any employee quit their job. If you quit your employment, then the employer will have a defense that you voluntarily limited your income and this could prevent you from receiving any type of temporary partial disability benefits or permanent total disability benefits. Quitting your job could also reduce the value of your case. Instead, we recommend that the employee make sure that the employer provides work within the restrictions and not work outside of the restrictions.
If you think your employer is making you work outside of your restrictions, you need to speak to an attorney immediately, but do not quit your employment.
Do I Get Compensated for My Lost Wages While I’m Recovering From My Accident?
Under the Florida’s Workers’ Compensation Law, an injured employee does not receive “lost wages” while they’re recuperating from their injury, but instead they may be entitled to temporary total or temporary partial disability benefits.
Specifically, if you are taken totally off work by your treating physician, then you’re entitled to temporary total disability benefits. If you are returned to work with restrictions, then you may be entitled to temporary partial disability benefits.
These benefits are not intended to totally compensate the employee for their lost wages, but intended to provide the employee some money while they’re recuperating.
Moreover, an injured worker is only entitled to receive temporary total disability benefits or temporary partial disability benefits up to the point that they reach maximum medical improvement. Once they’ve reached maximum medical improvement, the employee would then become eligible for either impairment benefits or permanent total disability benefits.
What Is Maximum Medical Improvement?
Maximum medical improvement (MMI) is simply a date, selected by your treating physician, where he indicates that you are “as good as you’re going to get”.
MMI does not mean that you are not having problems, that you are not having pain, or that you’re better. It just means that lasting improvement is not expected to occur within the next year.
Maximum medical improvement is important as it establishes the date for which temporary total disability benefits or/and temporary partial disability benefits cease. After the date of maximum medical improvement, the employee would be entitled to impairment benefits or permanent total disability benefits.
What Is a Managed Care Arrangement (MCA)?
Under the Florida Workers’ Compensation system, an insurance carrier can select to provide benefits under a managed care arrangement. If the carrier has elected to provide benefits under a managed care arrangement (MCA), then this provides the claimant additional rights, but greater duties in order to seek medical care.
Perhaps the most significant duty or obligation of the employee is that they have to exhaust the managed care agreement procedure prior to seeking assistance from the judge compelling medical care. Specifically, under most managed care arrangements, if the insurance carrier does not authorize care, then the employee has to request the medical care from the insurance adjuster, the medical care must be denied, then the employee must file a grievance, and the grievance procedure must be exhausted before the employee can seek help form the Court.
Unfortunately, this causes some delay in getting medical care authorized. On the other side, the MCA does provide additional benefits to an employee, which we feel are very helpful. For example, under most managed care arrangements, the employee is entitled to a change in treating physician, they are entitled to a second opinion, they’re entitled to an employer paid independent medical examiner (the employee actually gets to choose a doctor and have that physician issue an opinion concerning their need for medical care or treatment), and very importantly, the claimant is entitled to their choice of primary care physician.
A primary care physician is usually a general practitioner doctor, or family practitioner, and acts as a gatekeeper for the claimant during the entire course of care. Many insurance carriers imply that this would be the urgent care physician or the first physician that the claimant sees, but this is not necessarily so. Likewise, the claimant gets to choose their primary care physician. This provides the claimant some significant benefit in controlling their medical care.
What if My Benefits Are Denied?
You have the right to challenge that denial in an administrative hearing before an administrative law judge, and that decision can be further appealed to court. If you haven’t yet contacted an attorney to help you through the claims process, you will certainly want legal advice and representation to challenge or appeal a denial.
When Should I Report the Injury to My Employer?
Any time that you are injured in an accident, we suggest that you immediately report the injury to your employer. Under Florida workers’ compensation law, an employer has a defense to a workers’ compensation case if the employee does not report the injury within 30 days (90 days if it is an occupational exposure case).
While an employee may injure themselves and think that they will simply get better, not reporting the accident and not seeking medical care may act to invalidate the employee’s workers’ compensation claim and/or establish a defense or the carrier of late notice. Therefore, notify your employer of the accident immediately. If the employer refuses to provide medical care, then put it in writing, whether by email, fax or have someone witness you reporting the accident to your employer.
What Happens After I File a Claim?
You should receive information about the claims process from your employer’s insurance carrier that will tell you what to do. Your employer is required to inform the carrier about your claim within seven days after you report it. If you don’t hear from the insurance carrier or suspect that your employer did not notify them, you can contact them directly. Contact information for the company’s workers’ compensation insurance carrier should be posted in the break room or elsewhere in the workplace. If not, contact the Employee Assistance and Ombudsman Office or contact a workers’ compensation attorney for advice and assistance.
Why Are Florida Worker’s Compensation Claims Denied by the Insurance Company?
The number of denied Florida workers’ compensation claims has increased over the last 10 years and now exceeds 10%. If the insurance company is going to deny your claim, they are required to file a Notice of Denial with the Florida Division of Workers Compensation. You should receive a copy of the Notice of Denial. However, sometimes the insurance company may wait to deny your workers’ compensation claims: Florida Law allows them 120 days to pay and investigate your claim if they are uncertain of their responsibilities.
Some reasons that the insurance company may deny your claim include:
- The application for Compensation was late or incomplete
- Discrepancies between the accident report and the claimed injuries.
- The employee did not seek medical care from the employer’s doctor.
- The injury did not happen at work.
- The employer claims a pre-existing condition
- There were no witnesses to the accident
- The injury was caused by the employee or the use of drugs
- No Medical evidence that an injury occurred
The attorneys at Talbott & Lampert, PA are experienced workers’ compensation attorneys and will provide you a free consultation to discuss your case. Contact us today.
What Is the Average Weekly Wage in a Workers’ Comp Case?
The average weekly wage (AWW) is the claimant’s average weekly earnings during the 13 weeks prior to the on-the-job accident.
The AWW is important as this is the monetary amount for which the insurance company will calculate temporary total, temporary partial, permanent impairment, and permanent total disability benefits. Specifically, if the employee has worked for the employer for the entire 13 weeks prior to the accident, then the AWW will be equal to all the wages the employee earned during those 13 weeks and divided by 13. However, if the employee does not work the entire 13 weeks, then the carrier has to use other methods to obtain the average weekly wage.
What if the Medical Bills Are Not Paid by the Workers’ Compensation Insurance Company?
Often, the workers’ compensation carrier delays paying medical bills for various reasons. In our practice, we have had employees communicate concerns that the carrier’s failing to pay the medical bills will affect their credit.
Under Florida Law, if the insurance carrier authorizes treatment, then the insurance carrier, and not the employee, is responsible for the payment of medical bill. If the carrier does not pay the medical bill, then the employee may be required to seek assistance from the Division of Administrative Hearing to get the medical bill paid.
At the Law Office of J.J. Talbott, we help our clients to get their medical bills paid by using other laws and statutes against the insurance company.
Insurance Company Denied My Workers’ Compensation Claim-What Do I Do Now?
Even if you are injured on the job, the insurance company can still deny your workers’ compensation claim. Sometimes they deny your claim for strategic reasons, like wanting to push you to settle, and sometimes they deny the claim as they may believe that they are not liable for the accident or injuries. It is important to know that the insurance company is not the final word.
Under Florida law, you have a right to have an Administrative Law Judge who is knowledgeable of the workers’ compensation system hear your case and determine if you are entitled to workers’ compensation benefits.
However, you should contact an experienced worker’s compensation attorney to handle your case and to guide you through the complicated law. The attorneys at Talbott & Lampert, PA are experienced workers’ compensation attorneys and will provide you a free consultation to discuss your case.
Do I Need an Attorney on My Workers’ Compensation Case?
The workers’ compensation laws in Florida and Alabama are very complex. While the law was initially drafted in order to provide the claimant medical care in a quick fashion, the insurance company usually takes every opportunity to prevent the employee from getting medical care or limit the amount that they have to provide the employee for medical and/or indemnity benefits.
That is why we recommend that you at least get a free consultation with a worker’s compensation attorney, like the attorneys at the Law Office of J.J. Talbott, as they can help the employee understand the workers’ compensation law, can provide quality advice and can assist you in obtaining all the benefits that you are entitled.
Do I Have to Let the Workers’ Compensation Nurse Case Manager Into the Room With Me When I See My Doctor?
Under the workers’ compensation law, the treating doctor must communicate with the insurance company about your medical care and need for treatment.
However, the nurse case manager does not have the right to go into the room with you when you are seeing the doctor. The employee has a right to control who attends the doctor appointments and has the right to keep the nurse case manager out of the room during the appointment. We suggest that our clients do not have the nurse case manager come into the room when the employee is seeing the doctor as this often interferes with the doctor/patient relationship and because the nurse case manager may try to persuade the doctor to limit the medical care that you are entitled to.
If you do not want the nurse case manager in the room with you, then simply advise them that you want to see the doctor without them in the room.
Can I Sue for Damages Instead of Filing a Workers’ Compensation Claim?
In most cases, filing a workers’ compensation claim is your exclusive recourse for an on-the-job injury. Although you cannot sue for damages such as pain and suffering, there is a benefit in not having to go to court and prove negligence or fault in order to recover, provided you have the help of an experienced workers’ compensation attorney to guide you through the process.
There are limited instances where you can sue, however. For instance, if your employer engaged in willful or intentional misconduct which could be said to lead with a virtual certainty to an employee injury or death, you may be able to sue for the injuries caused. You might also be able to sue if your employer does not have workers’ compensation insurance. Additionally, you may have a cause of action against a negligent third party if you were injured by a defective product, in a car accident, or on another’s dangerous property, even if you were working at the time.
Common Injuries With Construction Workers
Construction Worker Injuries in Florida
Construction sites are dangerous places. Not only is the work physical, but construction workers are often required to use heavy machinery, work around dangerous equipment, work in high places, and work on roadsides where automobile accidents occur. Unfortunately, because of the nature of this work, construction workers face a greater risk of injuries on the job.
If you are a construction worker who was injured on the job, you may be faced with serious medical problems, ongoing pain, and financial worries due to missed work and medical limitations. Florida law provides a number of protections for construction workers who are harmed at work. It is important that you understand your rights and make sure you receive the benefits that you are entitled to.
Call the Law Office of J.J. Talbott today for a free consultation and allow us to examine your case. We can also advise you whether you can file a third-party liability claim against the person who caused your injuries.
Simply call us today at (850) 695-8331">(850) 695-8331
Construction Site Injuries
There are many different hazards that construction workers face. According to the United States Occupational Safety & Health Administration (OSHA), the top causes of injuries on construction sites include:
- Falling from heights – A worker may fall from a roof, scaffolding, or fall off a piece of machinery to the ground. Workers can also fall into holes or ditches on construction sites.
- Trench collapse – When a trench collapses, a worker can be buried alive, the worker’s air supply can be cut off, and they can suffer crushing injuries.
- Collapsed scaffolding – OSHA has strict rules to ensure the safety and stability of scaffolding, but things can and often still go wrong, causing a worker to fall and sustain serious injury or death.
- Electric shock and or arc flash/blast – Working with generators, power tools, machinery, and electrical wiring all create potential hazards that put construction workers at risk of being electrocuted or suffering other electrical injuries such as burns.
- Failure to use appropriate protective gear – Hardhats, safety glasses, and other personal protective equipment (PPO) should always be worn on construction sites to prevent injury.
- Repetitive motion injuries – When the body is repeatedly asked to do the same things again and again, the muscles and soft tissues can become worn and damaged, limiting mobility and causing pain.
Additionally, workers on a construction site are hurt as a result of traffic accidents, such as being hit by another vehicle, ladder collapses, removed safety devices, malfunctioning tools or equipment, and errors made by other workers.
At the Law Office of JJ Talbott, we represent construction workers who have suffered a variety of serious injuries, including:
- Eye injury, including vision impairment or blindness
- Broken bones
- Knee injuries
- Foot and ankle injuries
- Shoulder injuries
- Neck or back injury
- Spinal cord injuries,
- Illnesses caused by toxic chemical exposure
- Head injuries and/or brain injuries.
How We Can Help You!
If you or a loved one was hurt while performing work in a construction job, a workers’ compensation lawyer from the Law Office of JJ Talbott can provide you with comprehensive legal representation concerning your case. We can help:
- File a workers’ compensation claim.
- Determine whether you have a third-party liability claim.
- Force the insurance company to pay the medical bills for work-related accidents,
- Force the insurance company to provide appropriate medical care,
- Collect unpaid indemnity or money benefits,
- Make sure the insurance company is paying you at the proper average weekly wage,
- Gather and preserve evidence to prove your eligibility for compensation
- Keep your claim moving forward
- Fight a workers’ compensation claim denial
- Negotiate a settlement if there is a dispute over benefits
- File a third-party lawsuit in court and/or negotiate a settlement with a responsible third party
These are just some of the many services that our lawyers provide to clients across the State of Florida and Alabama. For more information about how we can assist you after your construction accident, give us a call today to schedule a free consultation. You will pay no attorney fees unless we secure benefits for you.
Can I see my own doctor for treatment?
Initially, you are required to see a doctor designated by your employer, or more specifically, by your employer’s workers’ comp insurance carrier. If unhappy with the doctor, in Florida you are allowed to make a written request for a different doctor, but you can only do this one time. If the carrier doesn’t respond to your request within five days, you can choose your own lawyer to treat you. In Alabama, if unhappy with your doctor, you can select another doctor from a panel of four doctors provided to you.
When the doctor you see is chosen by and works for the insurance company, you may feel like they are biased, and this may be so to a certain extent. You are not prohibited from getting a second opinion from a doctor you trust. This will be at your own expense, but it may help you in your case to receive benefits and the proper treatment. Ask your attorney if unsure of what to do.
Can I Choose My Own Pharmacy to Get My Prescriptions Filled?
Many insurance companies like for the employee to use the insurance company’s mail-order pharmacy or local discount pharmacies, as it saves the insurance company money. However, this often causes issues with the employee getting the prescription filled or delays authorization for the prescription.
The employee does not have to use the insurance company’s pharmacy and is entitled to select the pharmacy that they want to use. At the Law Office of J.J. Talbott, we also recommend using companies such as Injured Workers Pharmacy as they provide significant help to injured employees.
Social Security Disability
What if I Cannot Afford an Attorney?
Attorneys’ fees are both approved and regulated by Social Security. Many attorneys work on a contingency fee. This means that you do not have to pay attorneys fees if you do not recover. Contingency fee percentages are capped at 25 percent of the “past due” benefits with a cap not to exceed $6000.00. Social Security will pay the attorneys’ fees amount to your attorney at the conclusion of your case out of your past-due lump-sum benefits. At that time, you may also have to pay your attorney for any out-of-pocket expenses such as ordering medical records; copies, and postage.
What Happens When I Reach Retirement Age?
Once you reach age 62, your disability benefits will be automatically converted to retirement benefits by Social Security.
If I Can’t Work Because of My Medical Condition, Does That Mean I Am Eligible for Disability?
Qualifying for Social Security Disability is as much a legal question as it is a medical one. Social Security laws require more than having your doctor tell you that you are disabled. Instead, we look at your medical condition, your physical and work restrictions, and the effects that these facts have on your ability to work. This is a complicated evaluation that often requires an attorney’s assistance.
How Much Money Will I Receive on Disability?
Disability payments under SSD are determined by your earnings record. Social Security uses your Primary Insurance Amount (PIA) which can be found on your Earnings Record with Social Security. SSDI payments are based upon lifetime earnings, not the severity of your disability. It is also important to note that SSDI benefits are reduced if you receive Workers Compensation payments. If you are entitled to benefits under SSDI, then the most that you could receive is $2,639 for 2016.
What Happens if My Claim Is Denied?
If your claim is denied, the next step will be to file for reconsideration. At reconsideration, the claim is evaluated by a different examiner and state agency physician. If the claim is denied at reconsideration, you may request a hearing before an administrative law judge. Please note there are strict time deadlines to appeal decisions or file for reconsideration, and if you file late, then you have no recourse and have to start over. Usually, this is the point at which you will want to hire an attorney. Many claims are denied by Social Security in the initial stages. However, a majority are then approved at the hearing level. You have a good chance of winning at hearing level so it is important not to give up.
Will I Get Health Insurance Coverage Under Social Security?
Pursuant to 42 U.S.C. sec. 426(b), you are entitled to be covered by Medicare within 24 months of being approved to receive disability benefits under SSDI. Please note that there is a 5-month waiting period from the onset of the disability to entitlement. However, under SSI, you should be able to get Medicaid coverage which is administered by the State.
When Do I Need to Get an Attorney to Help With My Social Security Disability Claim?
Applying for Social Security benefits involves more than completing an application, and it is helpful to have someone who will work for you from the beginning. The Law Office of J.J. Talbott accepts claims at the initial application stage and would be happy to evaluate your case, answer your questions, and file your application with Social Security. Although you can complete your application without an attorney’s assistance, consulting an attorney early in the process, before you apply or shortly after, can be extremely beneficial. An experienced Social Security Disability attorney can help put your claim on the best footing from the outset. Let our team of attorneys fight for your Social Security benefits today!
Should I Apply for Social Security Disability Benefits?
At the Law Office of J.J. Talbott, we encourage our clients to file for social security disability benefits if there is a possibility that the employee would qualify for SSD. Unfortunately, most people are denied social security disability benefits the first time they apply and it takes approximately eighteen (18) months to two years to get to a formal hearing with the Social Security Administration after you request a hearing.
While many attorneys might encourage you to wait to file social security disability benefits – it is our belief that applying for social security disability benefits sooner may be better for the employee and may limit the time for which the employee waits for some income after they reach maximum medical improvement.
Specifically, if the employee waits to apply for social security disability benefits after reaching maximum medical improvement, and the insurance carrier does not accept the employee as permanently totally disabled then the claimant may have to wait 18 – 24 months without any income. This is a tremendous hardship that many employees cannot handle. Therefore, applying earlier helps the employee receive the monetary SSD benefits quicker.
How Long Does It Take Social Security to Make a Decision on My Claim?
A significant part of the claim process involves obtaining your medical records, which can be a time-consuming process as the Social Security Administration has to get your records from many medical providers. Also, if Social Security has medical questions, they send you to a doctor for an evaluation. A disability examiner will work with a state agency doctor to make the initial decision on your claim. As such, the period for the initial evaluation may take between 3-5 months.
How Does the Social Security Administration Define “Disability”?
“Disability” is defined by the Social Security Administration as an “… inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment [or combination of impairments] which can be expected to last for a continuous period of not less than twelve [consecutive months] … taking into account the individual’s age, education, and work history.” 42 U.S.C. sec 423 et al; 20 C.F.R. 404 (emphasis added).
How Do I Apply for Social Security Disability?
The fastest way to apply for SSDI disability is to apply online at https://www.ssa.gov/. However, if that is not feasible, then you may contact Social Security at their toll-free number 1-800-772-1213 and apply over the telephone. Of course, you can go to any Social Security office near you to apply.
Can I work and still collect Social Security Disability?
You cannot be engaged in “substantial gainful activity.” 20 C.F.R. 404.1571. In 2016 there is a presumption that a claimant earning $1010.00 a month is engaged in “substantial gainful activity.” This means that if you are paid more than this for work in one month despite a disabling condition, your claim will be denied. However, an attorney can help you determine if this work constituted an “unsuccessful work attempt” or whether the actual earnings should be reduced due to “impairment-related work expenses” or whether it was really “subsidized work.”
Are Children Entitled to Receive Social Security Disability?
An adult child becomes disabled before the age of 22 may be entitled to draw SSDI benefits based upon the Social Security eligibility of his or her mother or father. The parent must be deceased or drawing SSDI disability or retirement benefits. It is not necessary for the adult child to have an earnings record with Social Security as the adult child can utilize the parent’s earning record. However, the disabled adult child cannot be engaged in substantial gainful employment. Children under the age of 18 may be entitled to receive SSI benefits if they meet the criteria for being disabled and their family income and assets meet the eligibility requirements.
Should I Settle My Case Pre-suit, or Should We Go to Court?
The decision of whether to settle a personal injury case pre-suit or whether to file a complaint should not be decided quickly but should be based on an evaluation of numerous factors. Some attorneys may tell you that you can get a larger total settlement if they file suit but is it really in your best interest to file suit?
For example, in a personal injury case, if you file a suit:
1) The attorney’s fee increases after you file suit to 40%.
2) Your cost increases after you file suit (filing fee, depositions, mediations, etc).
3) After you file a suit, you will have to sit for a deposition. This will require you to take off from work in order to attend as they typically run several hours long;
4) You will have to continue to go to the doctor to substantiate any claims for future medicals (which will increase doctor liens or subrogation amounts claimed by your health insurance company).
5) Your case will continue unsettled for a year or more.
6) The insurance company will thoroughly examine your medical and employment background.
7) You could always settle and end up with less money. At the Law Office of JJ Talbott, we aggressively fight for our clients both pre-suit and once a suit has been filed.
When Should I Settle a Personal Injury Case?
We believe that the decision of whether to file suit should be based on an evaluation of many factors and not just whether you can settle for more money. If you have questions about your case, call the personal injury attorneys at the Law Office of J.J. Talbott for your free consultation.
Should I Provide a Statement to an Insurance Company Without Legal Help?
The attorneys at the Law Office of J.J. Talbott believe that you should NEVER make any sort of statement to an insurance company before you consult an attorney.
Often, the insurance company will contact you soon after the accident to ask you questions about the accident and your injuries. While you may think that the issues are straightforward, the issues may not be apparent. The insurance company may be seeking information so that they can deny or limit your claim.
Speaking with a personal injury lawyer at the Law Office of J.J. Talbott before you give a recorded statement can help protect your rights as we have the experience to identify the relevant issues in your case and help prepare you for the recorded statement. Additionally, we will be there by your side during the recorded statement to help assure that the insurance company does not ask any inappropriate questions.
Do You Take Cases on a Contingency Fee Basis?
Yes. If we represent you in your personal injury case, we do not charge any fee upfront. You only pay us if we obtain a settlement or verdict for you. Our fee is a percentage of the amount you receive, so you don’t have to worry about being able to afford quality legal representation when you are injured. Also, we can advance the costs of the lawsuit, such as court filing fees and expert witness fees, so it doesn’t cost you anything out of your pocket to pursue your claim. Our costs are reimbursed from the settlement or verdict we obtain for you.
How Much Does It Cost to Hire a Personal Injury Lawyer?
The cost to hire a personal injury lawyer can vary between cases and firms. Many Personal Injury attorneys charge different amounts based on location and the firms’ history.
However, many lawyers, like the Law Office of J.J. Talbott, charge on a contingency fee basis. What this means is that there are no fees or costs to hire a personal injury lawyer unless you recover a settlement. Then, the attorney fee is based on a percentage of that settlement. In Florida, the maximum contingency fee in a personal injury case is 1/3 of the recovery, pre-suit. If a lawsuit is filed, then the fee increases to 40% of the recovery amount.
How Long Do I Have to File a Personal Injury Lawsuit?
In most cases, the statute of limitations requires that you file your lawsuit within two years of the date of the injury, or else you can be prohibited from recovering from the negligent party. However, this deadline may be longer or shorter depending upon a variety of factors, such as the type of negligence (medical malpractice, birth injury, product defect), the age of the victim (minor, adult), and the status of the defendant (public entity, private person).
Two years may seem like a long time, but it can pass by quickly while you are busy with the aftermath of a serious personal injury, such as concentrating on your physical recovery; dealing with insurance forms, doctor and hospital bills, and other paperwork; and getting back to work or collecting disability. If you are talking to the insurance company about a settlement, these negotiations can drag on past the deadline for you to file a lawsuit if you are not careful, which can be disastrous to your case.
Contacting an attorney soon after the accident will help ensure that the statute of limitations will not be overlooked, as well as handling other important matters such as notifying your insurance company in a timely fashion. Also, your lawyer will get started right away gathering important evidence and preparing your case for the best result either through settlement or verdict.
How Do I Know if I Have a Personal Injury Case?
Simply being injured in an accident does not mean that you have a personal injury case. The experienced personal injury attorneys at the Law Office of J.J. Talbott are able to tell you whether or not you have a claim.
So, How do I Know If I Have an Injury Case?
However, generally, you must be able to prove three things to establish a case:
(1) that another party was negligent,
(2) that their negligence caused your injury, and
(3) that the injury resulted in your damages.
Depending on the facts of your case, proving negligence and causation may be complex, so it is important to consult with an attorney before making any assumptions about your injury case.
Do I Need to Hire a Personal Injury Lawyer?
Short answer – yes!
Longer answer – It is always a good idea to work with an attorney if you were injured in an accident. Generally, plaintiffs who hire personal injury lawyers to represent them have a higher likelihood of settlement, receive higher amounts and are more satisfied (on average) than plaintiffs who attempt to negotiate or recover damages on their own. When you are injured, it is difficult to focus on healing and deal with insurance companies and medical bills at the same time.
The experienced personal injury attorneys at the Law Office Of J.J. Talbott can assist you in getting the medical care you need, help compile your medical records, compute your damages, and work to settle your case, all while you work on getting better. Give a call today to explore your case options at (850) 695-8331">(850) 695-8331.
Why Would I Need an Attorney to Figure How Much Child Support Is Owed?
Child support is calculated according to a statutory formula, but it can be more complicated than simply plugging in numbers. The formula can quickly become confusing when both parents are wage earners, or when one parent is self-employed or owns a business. Some individuals may also try to hide assets in order to pay less in child support or alimony or to take advantage of the other in the property settlement. Finally, even though child support is established according to statutory guidelines, the judge has the authority to deviate from these guidelines in appropriate cases. Having an attorney on your side can help make sure you are fairly represented throughout the process and that neither you nor your children are taken advantage of.
My Spouse Makes All the Money, and I Don’t Know How I Will Live if I File for Divorce.
If you need to get out of the marriage, do not let worries like this prevent you from filing for divorce. Early in the divorce process, the judge normally issues temporary orders which require the parties to maintain the status quo regarding bank accounts, credit cards, etc. This way neither party can freeze the other out of the joint finances or gain an edge by selling a car or home or making a major purchase. The judge can also make temporary orders for child custody and spousal support and topics such as who can use the family home while the divorce is pending. Share your concerns with your family law attorney to make sure the appropriate court orders get put in place.
How long does a divorce take?
The soonest a divorce can be finalized after a petition is filed is 20 days in Florida or 30 days in Alabama. However, if the divorce is contested, the process will likely take longer. If the issues to be resolved are particularly challenging to work out, such as a high-conflict child custody battle or a dispute over complex marital property issues, a trial may be necessary to resolve the matter, and it normally takes several months to properly prepare a case for trial.
Although you may simply want to get through the process as quickly as possible, it is more important to do it right than to do it fast. A divorce decree can impact your finances and your relationship with your children for years to come, so don’t let your desire to be done with the divorce interfere with your long-term best interests.
Do I Have to Keep Paying Alimony or Child Support if I Lose My Job? What if My Ex-spouse Remarries?
Although divorce decrees are final, it is possible to go back to court and ask the judge to modify them when a change in circumstances justifies a modification. For instance, the judge could increase, decrease or terminate a spousal support obligation or child support award in response to an increase or decrease in either party’s income or needs. The child custody and visitation arrangement could also be modified in the event one parent needs to relocate far away or out of state. Changes to child support or custody are only made if the judge determines a modification would be in the child’s best interest. Legal advice and representation are highly recommended when seeking or challenging a post-divorce modification.