|MITCHELL LAW GROUP|
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Tampa, Florida 33602
HR and Tax Newsletter-June 2003
A plan that provided that an employee could receive up to 52 weeks of salary for injury or
disability was not an ERISA plan. Because benefits were paid out of the employer's general
assets and because the employee received his normal compensation, the Eleventh Circuit
concluded that the plan fell within the payroll plan exemption to ERISA.
Stern v. International Business Machine (11th Cir.)
The Florida Supreme Court has ruled that for covenants to compete entered into on or prior to
July 1, 1996, a successor corporation can enforce non-compete agreements made by predecessor
corporations even if the non-compete agreements did not expressly authorize assignments and in
fact were not assigned. This rule applies if 100% of the predecessor company's stock is sold or
the prior corporation was merged into the successor corporation.
Corporate Express Office Products v. Phillips.
The Supreme Court has held that six factors apply for purposes of determining whether
shareholder/directors count as employees in determining whether the 15 employee threshold under
the Americans with Disabilities Act is reached. The mere fact that the employer is a corporation
does not mean that the shareholder/directors automatically count as employees. The relevant
factors are : (1) whether the organization can hire or fire the individual or set the rules and
regulations of the individual's work; (2) whether, and to the extent the organization supervises the
individual; (3) whether the individual reports to someone higher in the organization; (4) whether,
and if so, the extent the individual is able to influence the organization; (5) whether the parties
intended that the individual be an employee, as expressed in written agreements and contractors,
and (6) whether the individual shares in the profits, losses, and liabilities of the organization.
Clackamas Gastroenterology Associates P.C. v. Wells.