Archive for April, 2008


Smokers Can Recover from $580 Million Dollar Trust Fund

April 24, 2008
A Florida Court has paved the way for sick smokers in Florida to recover damages for smoking illnesses they may have.  Smokers have until June 16, 2008 to file a claim for numerous smoking related illnesses which they have suffered due to long term exposure to smoking.
The settlement resulted from a 2000 in which Cigarette makers were hit with a $145 Billion Dollar Verdict.  The amount was later lowered to $709 million, of which $580 million dollars remains to satisfy smokers claims.
The Court anticipates that anywhere from 8,000 to 20,000 smokers will file claims against the Fund. 
The Judge presiding over the Fund has indicated that the Fund will be distributed on an equal basis depending on the actual number of claims.  Some of the people involved in the case from the beginning are unhappy that the judge decided to distribute the money equally rather than focusing on the original class.   Pompano Beach Attorney Joseph M. Maus says “there has to be consideration given to individual claims.  No two claims will be the same, and many claims will differ drastically depending on the level of illness which occurred to the individual, or whether a death occurred.”
Smokers must be able to prove they were Florida residents and had documented symptoms of a smoking-related disease before November 1996.   Once the smokers are cleared for a portion of the settlement, they will likely have to deal with Medicare, Medicaid, and the IRS, who may all have claim to any proceeds received.
For more information, log on to or call Attorney Maus toll free at (866) 556-5529  .

Crane Accident Law Fails To Pass

April 23, 2008

With the increase in Crane Accidents in Florida recently, it would seem that a state-wide law governing the safe operation of large cranes would be an idea the entire Florida Legislature would easily approve.  Recent crane accident in South Florida alone have caused two deaths and seven people to become seriously injured

For two years, state legislators have tried to pass a law regulating the use of the contraptions that tower above South Florida’s skyline.  It appears the law may gain approval from the Florida House of Representatives today, but will be defeated in the Florida Senate.

“They don’t care how many folks die,” charged state Rep. Greg Evers, R-Baker, the bill’s co-sponsor in the House. “So how many people are we going to allow to get hurt when we could have a statewide ordinance that would protect the people all across the state?”The proposed legislation would require crane operators in Florida to be certified, and set penalties for those who work without certification.

That approach is flawed, opponents say, because it would not let cities and counties implement stricter standards of their own. Of special concern are construction conditions in Miami-Dade County, where high winds that pose a risk to cranes can gain momentum as they barrel through high rise-lined corridors.

Attorney Joseph M. Maus currently represents the family of a man killed in a crane accident at the Southwest Florida International Airport.  Jebel Polanco Zuniga was killed when a crane operator used a defective hook, allowing a 1000lb conrcrete form to become unhooked, falling on Mr. Zuniga and another co-worker.  The co-worker, Gustavo Orozco, was paralyzed in the accident.  According to Attorney Maus, “a simple check of the crane hook prior to its use would have prevented this tragic accident.”

On April 9 the boom of a 190-foot crane fell onto the fourth floor of a downtown Fort Lauderdale apartment building in the 400 block of Northeast Fifth Avenue. The noon-time accident caused minimal damage and no injuries.  But in March, the collapse of a section of crane in downtown Miami killed two workers and injured five. Less than two weeks later, two more people were injured when a load a construction crane was hoisting fell onto an Aventura building.

As it stands now, no federal oversight governs crane operations. The Occupational Safety & Health Administration mandates periodic inspection of cranes, but relies on construction owners or private contractors to perform them.  In March, Miami-Dade County passed a measure stricter than the proposed state legislation that governs crane testing, inspections, operator certification and high-wind operations.  If it passed, the state law would void that measure.

“The [proposed state] standards are substandard,” said Sen. Rudy Garcia, R- Hialeah, who has prevented the bill from being heard by the Senate’s Committee on Community Affairs, which he chairs.  The House legislation is based on national standards set by the American Society of Mechanical Engineers and the National Commission for the Certification of Crane Operators, Evers said.  “It’s good enough for every place else in the country but not Miami,” Evers said.



April 1, 2008

The Fair Labor Standards Act requires that most employees in the United States be paid overtime pay at a rate of one and one half times their regular rate of pay for all hours worked over forty (40) in a work week. Many jobs have a pay system which makes it easy to calculate whether a person is entitled to overtime pay. For instance, when a person is paid by the hour, and works more than forty (40) hours per work week, overtime pay can be calculated by simply taking the hourly rate times 1.5, which will equal the overtime rate of pay.


However, the Fair Labor Standards Act contains many exemptions and exclusions which make it difficult for employers and employees to know whether a person is entitled to overtime pay. One such exemption is the exemption for executives, administrative employees, professional employees and outside sales employees contained in Section 13(a)(1) of the Fair Labor Standards Act. This provision has been the subject of many law suits filed recently on behalf of employees who were told by their employers that they were not entitled to overtime pay.


Nurses are one example of an employee that has traditionally been thought of as not being entitled to overtime pay. However, this traditional way of thinking is now getting some employers in hot water for violations of the Fair Labor Standards Act. One large hospital in Dallas, Texas, Parkland Health and Hospital System, was recently sued by a former nurse employee, who alleges that Parkland Health and Hospital System failed to pay her for her overtime work that she performed during a three (3) year period while she worked for the hospital system.


The case will most likely turn on whether the Plaintiff in the Parkland Hospital suit can be qualified as a “learned professional” which would fall under Section 13(a)(1) of the Fair Labor Standards Act. In order for an employer to not be required to pay its nurses overtime pay, an employer must be able to show:


1. That the employee was compensated on a salary or fee basis at a rate not less than $455.00 per week;


2. The nurses primary duty must be the performance of work requiring advance knowledge, predominately intellectual in character which requires the consistent exercise of discretion and judgment;


3. The advance knowledge must be in a field of Science or learning; and


4. The advance knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.


It is a very fine line at to whether certain nurses qualify to be paid overtime under this exemption. Registered Nurses who are paid on an hourly basis should most likely receive overtime pay. However, Registered Nurses who are registered by the appropriate State Examining Board generally fall under the Learned Professional Exemption as long as they are being paid on a salary basis of at least $455.00 per week.


On the other hand, licensed practical nurses and other similar employees of hospitals are genuinely required to be paid overtime pay for any hours over forty (40) hours per work week regardless of their work experience and training, because possession of a specialized advance academic degree is not a prerequisite for entry into such a position. As such, licensed practical nurses and similar health care employees would be entitled to overtime pay.


Information on overtime wage claims is easily obtainable through the Department of Labor’s website at Any employee that is not being paid one and one half times their regular rate of pay for their overtime hours should try to obtain as much information on overtime wage claims as possible. That employee may just find out that they have not been paid the full amount of their wages over the last several years. The Fair Labor Standards Act also allows for an employee to recover not just their overdue wages, but also an equal amount of their overdue wages known as liquidated damages. The Fair Labor Standards Act also allows a party that prevails in an overtime wage law suit to have their attorney paid by the employer. This means that an employee can recover the amount of their overdue wages, without having a portion of it go to pay their attorney.


If you have a question or need information on overtime wage claims, please log on to for additional information. The Law Office of Joseph M. Maus and Associates is an “AV” rated Florida law firm licensed to practice before the United States Supreme Court and Federal Court for the Southern and Middle Districts of Florida. Please call our offices for a free consultation or to obtain more information on overtime wage claims.


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