Florida Law
Florida Employment Law
- Employment Law
Employment Law
Employment law covers a wide range of issues including hiring and termination procedures, workplace discrimination, harassment, safety, wages and salaries, workers' compensation, privacy, and unemployment compensation. Just as varied are the sources of employment law. A person in Florida faced with an employment question must look for guidance from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals, the Florida Supreme Court, federal administrative agencies such as the Occupational Safety and Health Administration, and state administrative agencies such as the Florida Department of Labor and Employment Security and the Florida Commission on Human Relations.
This chapter will survey some of the major areas of employment law with the exception of workers' compensation which is covered exclusively in the Workers' Compensation Law chapter.
The Employment Relationship
Inherent in any employment relationship are certain rights and responsibilities. Like the American workplace, however, the breadth of these rights and responsibilities has changed over time. What passed for acceptable behavior 20 years ago may today be an actionable offense. Yet certain fundamentals have remained constant and it is important that both workers and employers have at least a rudimentary understanding of their basic rights and duties within the employment relationship.
What Is an Employee?
Whether a worker is an employee or an independent contractor is an important question affecting the legal relationship between worker and employer. Employees are protected by state and federal wage and hour regulations, are entitled to workers' compensation and unemployment compensation, and are considered agents of the employer for purposes of liability. Independent contractors, on the other hand, are singular entities not covered by state and federal employment law; nor are employers liable for their actions. The extent of relationship between employer and independent contractor is the terms of their contract.
Occasionally, it is unclear into which category a worker falls. In such cases, courts look to the extent of control or power the employer has over the worker. If the employer controls the time, place and manner of the worker's efforts, then the worker is probably an employee. If the worker has the power to decide when and how the job will be done, he or she is most likely an independent contractor.
Employment at Will
Under Florida law, employment contracts which do not specify a definite term of employment are terminable "at will." In other words, an employee can quit or be fired at anytime for any reason, other than those proscribed by law (e.g., race, sex, handicap, age, etc.). Recently, some plaintiffs have challenged Florida's at will policy, arguing that the employer's personnel handbook laid out a termination procedure requiring good reason or cause. The courts, however, have largely resisted these arguments and continue to view most employment contracts without a definite term of employment as terminable by either party at their discretion.
Employment contracts which specify a definite term of employment are not terminable at will. Instead, both parties must abide by the terms of the agreement, otherwise they may be subject to a breach of contract lawsuit.
Trade Secrets and Non-Compete Agreements
Companies seeking to defend their competitive position in the marketplace will sometimes sue to prevent a former employee from divulging company trade secrets or may ask a worker to sign a non-compete agreement. A trade secret is any confidential information, machine, pattern, or process which may give its user an advantage over his or her business competitors. Trade secrets are the property of the employer and no one, including an ex-employee, is permitted to share or disclose a trade secret without authorization from the employer. Employers can seek an injunction to prevent the sharing or use of a trade secret, or sue for money damages if the trade secret has already been disclosed. The amount of money damages may be considerable depending on the value of the trade secret.
Under Florida law, a non-compete agreement limits an employee's or an independent contractor's right to compete with an employer in a given geographic area for a certain period of time. Usually employers will seek such agreements from highly valuable workers with specialized knowledge or unique abilities. Whatever limits the employer imposes must be reasonable and go only so far as is necessary to protect the employer from irreparable harm. For example, an employee may sign a non-compete agreement stating that should the employee leave, he or she must wait at least two years before working for the employer's arch competitor across town. Such a limitation would probably be reasonable since, after two years, whatever information or expertise the employee has would likely be too outdated to cause the employer irreparable harm.
Compensation
Compensation for work performed can be paid in a variety of ways. Wages, in the form of dollars per hour, are the most common means of paying compensation. Florida law does not set a minimum wage, but federal law requires employers to pay no less than $4.25 per hour. There are also salaries -- based on an annual rate -- bonuses, tips, profit sharing plans, stock options and commissions.
Florida law requires that an employer pay overtime after 10 hours of work in one day. The federal Fair Labor Standards Act limits the standard work week to 40 hours for most employees, excluding executives and professionals. Work beyond 40 hours per week requires overtime pay, which is defined as at least 11/2 times the regular hourly rate.
Anti-Discrimination Law
Under both state and federal law, employers are prohibited from discriminating on the basis of race, national origin, color, religion, sex, age, handicap, HIV or AIDS infection, marital status or sickle cell trait. An employer found to have unlawfully discriminated may be forced to reinstate or promote an employee, institute new non-discriminatory work procedures, and pay compensatory and punitive damages. Anti-discrimination law applies to most employers with 15 or more employees and covers all areas of employment, including hiring, hours, wages, promotion and termination.
If you believe you have been discriminated against based upon any of the above factors, contact the Florida Commission on Human Relations (FCHR), the U.S. Equal Employment Opportunity Commission (EEOC) (see the Resources section below), or consult an attorney. What follows is a short description of some of the areas protected under anti-discrimination law.
Age Discrimination
The Age Discrimination Employment Act of 1967 (ADEA) is a federal law prohibiting age-based discrimination in employment. The ADEA covers both public and private employers, employment agencies, and labor organizations, and affects employees or applicants over 40 years of age. Among other things, the ADEA prevents most employers from enforcing mandatory retirement policies, except in specific circumstances where age is a particularly important qualification (e.g., firefighter, police officer, or airline pilot). As long as a person can satisfactorily perform the work required, he or she cannot be forced to retire. The Florida Civil Rights Act passed in 1992 also forbids discrimination on the basis of age.
Sex Discrimination and Sexual Harassment
Title VII of the U.S. Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex, as does the Florida Civil Rights Act. One situation in which a worker may be subject to sex discrimination is in matters of pregnancy. Employers who fire or refuse to hire a woman because she is pregnant, force her to take maternity leave, force her to take another job, or bar her from returning to work for a period of time after her pregnancy may be unlawfully discriminating against her. A pregnant woman's employment status can be changed only if her pregnancy interferes with her ability to perform her job.
Sexual harassment is also a form of sex discrimination. Sexual harassment is defined generally as any form of unwelcome sexual conduct, either verbal or physical, which creates an intimidating, hostile, or offensive working environment. Examples of prohibited conduct include:
- Demands for sexual favors in exchange for employment benefits
- Unwanted sexual propositions or flirtations
- Sexually graphic materials on display in the workplace
- Leering, whistling, or gestures of a sexual nature
- Graphic commentary about an individual's body, sexual prowess or abilities
- Physical contact of a sexual nature, such as pinching, grabbing, or unnecessarily brushing against another person's body
Employers should devise a sexual harassment policy if they do not have one already. The policy should state clearly that sexual harassment is illegal and will not be tolerated. The policy should be posted or otherwise communicated to employees and procedures should be developed in the event an employee reports a harassment incident.
Discrimination Based on Handicap
The federal Americans with Disabilities Act (ADA) and Florida's Civil Rights Act ban employment discrimination based on disability or handicap. Florida courts have defined a handicap or disability as a physical or mental impairment of a permanent nature that substantially limits one or more of the person's major life activities. By "life activities" the law is referring to tasks that the average person can perform with little or no difficulty, such as caring for oneself, walking, sleeping, speaking, seeing, hearing, understanding basic concepts, and breathing.
Federal and state law does not impede an employer's freedom to hire or promote employees with the skills necessary to perform a position's essential duties. But the law does prohibit employers from making employment decisions based upon an employee's physical or mental abilities not essential to performing the requisite work. Moreover, the ADA requires that employers make reasonable accommodations for physically or mentally disabled employees. A reasonable accommodation is not one which unduly burdens the employer, but enables the employee to better perform his or her job. Some examples include modifying stairways, doorways, drinking fountains, machinery, rearranging work schedules, and providing special training.
Discrimination Based on AIDS or HIV
Individuals with acquired immune deficiency syndrome (AIDS) or human immunodeficiency virus (HIV) are protected against employment discrimination under both state and federal law. For example, Florida law prohibits any person from:
- Requiring an individual to take an HIV test as a condition of hiring, promotion, or continued employment, unless the absence of HIV is a bona fide occupational qualification for the job in question
- Refusing or failing to hire, discharging, segregating, classifying or otherwise depriving an employee of employment opportunities because he or she may have HIV or AIDS
- Refusing or failing to hire, discharging, segregating, classifying or otherwise depriving an employee of employment opportunities because he or she is a licensed care professional or health care worker who treats or cares for HIV-infected persons
Anyone found in violation of Florida law may be required to pay the aggrieved party $5,000 in liquidated damages or actual damages, whichever is greater, in addition to attorneys' fees and whatever other relief the court deems appropriate.
Permissible Forms of Discrimination
In limited situations, discrimination based on age, sex, or some other protected factor is permissible if the employer can demonstrate a truly compelling reason to discriminate. For example, a religious organization may refuse to hire or promote someone not embracing the same religious beliefs; an employer can refuse to hire a man as an attendant in a women's locker room; or a person with an extremely heavy accent, originally from a non-English speaking country, can be denied a job requiring excellent English communication skills. Employers are advised, however, that courts are reluctant to permit such forms of discrimination.
Enforcement of Anti-Discrimination Law
A person with a discrimination complaint must first seek relief through either the Florida Commission on Human Relations (FCHR) or the federal Equal Employment Opportunity Commission (EEOC) before considering a lawsuit. Due to the common jurisdiction of the two agencies, a complaint can be filed with either the FCHR or EEOC. If required, the agency taking the complaint will forward all documentation to the other agency. There is, however, a difference between the two agencies in the time period permitted for filing a complaint. The FCHR requires a complaint to be filed within 365 days of the date of the alleged discriminatory incident; the EEOC requires a complaint to be filed within 300 days.
Both agencies have the authority to conduct an investigation. If, after the investigation, the agency finds probable cause to believe that discrimination did occur, the complainant has the option of either pursing the matter through the agency (in which case an administrative hearing will be held) or of taking the matter to civil court. A complainant can also go directly to court if the agency makes no finding within six months. Both the FCHR and EEOC can award various forms of relief, including hiring, reinstatement, promotion, back pay, and limited money damages. A court can award the same relief and is not bound by limitations on the amount of money damages; consequently, complainants tend to receive larger damage awards from courts.
Federal law prohibits an employer from retaliating against an employee who has made a discrimination charge, or who has testified, assisted, or otherwise participated in any discrimination complaint proceeding.
Other Workplace Rights and Responsibilities
Drugs in the Workplace
Under Florida law, both public and private employers with four or more employees can require testing for drug or alcohol abuse. Job applicants can be tested, as can employees reasonably suspected of drug or alcohol abuse. Employers can also test employees as part of a routine fitness-for-duty medical examination or as a follow-up after employees complete an employee assistance program for drug-related problems. All testing must be done according to procedures set by the Florida legislature and the results are strictly confidential.
Prior to any tests, the employer must give job applicants and employees written notice explaining their testing policy. If an employee or job applicant tests positive for drugs or alcohol, the employer can fire or refuse to hire the person. Moreover, testing positive jeopardizes an employee's right to workers' compensation benefits.
Safety and Health Standards
Workplace safety and health standards are governed by the federal Occupational Safety and Health Act (OSHA), Florida's Workers' Compensation Act, and Florida common law. Generally, employers have a duty to provide a reasonably safe work environment, including conditions and methods of sanitation and hygiene. Employees have a duty to take reasonable care while on the job and follow safety procedures. All places of employment are subject to inspection for compliance with the applicable safety and health standards. Fines and criminal penalties can be assessed for non-compliance.
Smoking in the Workplace
The Florida Clean Air Act makes it unlawful to smoke in a public place, except in designated smoking areas. Places of employment are included in the definition of a "public place," as are government buildings, courthouses, mass transit vehicles and stations, libraries, museums, theaters, grocery stores, and restaurants seating more than 50 people. Areas designated for smoking must be clearly marked and no more than half the floor space of an enclosed indoor area can be designated for smoking. All employees working in a designated smoking area must agree with the designation. If a single worker objects, an area cannot become a designated smoking area.
Employment of Migrant Labor
Because of abuses in the past, both the federal and state governments have put in place laws aimed at protecting migrant or seasonal farm laborers. Farm labor contractors -- anyone who hires, transports, recruits, or supervises farm workers -- are required to register annually with both federal and state authorities. The law mandates that farm labor contractors must show their registration certification when hiring anyone for farm labor; must distribute or pay all money entrusted to them; must provide workers a written statement itemizing all deductions from wages; must prominently display at the worksite a written statement (in English and Spanish) showing the rate of compensation he or she receives from the grower and the rate of compensation he or she is paying the workers; and other requirements.
Violations of either state or federal law are punishable by fines of up to $1,000 per violation and a year in prison. Knowingly recruiting or hiring illegal aliens is punishable by a fine of up to $10,000 and three years in prison.
Whistleblower Protection
"Whistleblower" is the term used to describe employees or other workers who report criminal or civil violations committed by employers. Generally, employers are prohibited from retaliating in any way against an employee, applicant, or other person disclosing information about an employer's wrong-doing. The procedure for dealing with employer retaliation differs between the public and private sector. State employees must bring their complaint to either the Executive Office of the Governor, the Attorney General, or the Office of Public Counsel. Local government employees will have to follow whatever procedure the local government has adopted by ordinance. Private employees can sue their employer directly. The available forms of relief include an injunction against further retaliation, reinstatement, lost wages compensation, or any other compensatory damages.
Parental, Family and Medical Leave
Under Florida law, private employers are not required to provide leave of any kind. The legislature concluded that these matters are best determined by the employer/employee contract. The federal Family and Medical Leave Act (FMLA), however, allows qualified employees to take up to 12 weeks of unpaid leave to attend to family or medical matters, including birth or adoption of a child, care for an immediate family member, or care for the employee's own health. Both men and women are covered under the FMLA; thus, a father can take paternity leave.
To qualify under the FMLA, a worker must be a full-time employee of a company with at least 50 employees and have worked for the company for no less than 12 months. In addition, the employee must have worked at the company for at least 1250 hours during the preceding 12 months.
During an unpaid leave, an employer must maintain an employee's health benefits at the same level as prior to the leave. When the employee returns from a leave, the employee is entitled to the same position he or she held earlier. If the same position is not available, the employee must be placed in an equivalent position, with equivalent compensation, benefits, duties and responsibilities.
Privacy
An employee's right to privacy at the workplace is a hotly debated issue today as increasing numbers of employers turn to searches, surveillance, and eavesdropping to better monitor employee activities. Some employers use hidden cameras, unannounced searches, even wiretaps to keep tabs on employees. This area of law is still largely unsettled, but it is fair to say that an employee does surrender some of his or her rights to privacy upon entering the workplace. The number of employees challenging employer practices, however, is growing, and as their cases move through the courts, a clearer picture will develop of what privacy rights an employee can expect at the workplace.
Veterans' Reemployment Rights
Certain veterans returning from active duty are entitled to be reemployed by their previous employer under the Veterans' Reemployment Rights Act. To qualify, a veteran must have done all of the following:
- Held an "other than temporary" (not necessarily permanent) civilian job
- Left the civilian job for the purpose of going on active duty
- Not remained on active duty longer than four years, unless the period beyond four years was "at the request and for the convenience of the federal government"
- Been discharged or released from active duty "under honorable conditions"
- Applied for reemployment with his or her previous employer within 90 days of separation from active duty
Reinstatement must occur within a reasonable period of time and to a position of similar status, responsibility, and pay. In addition, the veteran's seniority level must be at the level it would have been had the veteran kept the position continuously during military service.
Unemployment Compensation
Unemployment compensation in Florida is an employer-funded program entitling eligible employees to benefits in the event they become unemployed through no fault of their own. To be eligible for benefits, an employee must:
- Be totally or partially unemployed
- Register for work and file a claim at the Jobs and Benefits Office
- Have sufficient employment and wages (as defined by the Division of Unemployment Compensation)
- Be able and available for work
Independent contractors and some types of employees are specifically exempt from receiving unemployment benefits. These employees include elected officials, judges, children under 18 performing work for a parent, enrolled students working for a school or university, and employees of foreign governments.
Persons are not eligible for benefits if they are fired for misconduct, strike, are laid off, refuse acceptable work, fail to seek new work, or quit without good cause. "Good cause" has been defined by the courts as meaning any event that would compel the average, reasonable person to leave his or her job. This would probably include leaving due to harassment or an employer's breach of the employment contract. Leaving because you simply do not like the work or the employer, however, is not good cause. Persons forced to leave because of personal illness or disability are entitled to benefits.
Filing a Claim for Benefits
A claim for unemployment benefits is made at the local claims office of the Division of Unemployment Compensation. The division has offices located throughout the state. Check your local telephone directory for the office nearest you. You must be unemployed for one full work week before filing and can receive benefits for no more than 26 weeks. The amount of benefits you receive depends upon what your average weekly wages were before termination. You can receive up to $250 per week.
If a person is unsatisfied with the amount of benefits he or she receives or wants to appeal a denied claim, a request for reconsideration can be filed at the Unemployment Compensation Claims Office. Appeals are heard by impartial appeal referees. The decision of an appeal referee can be appealed to the Unemployment Appeals Commission, which, in turn, can be appealed to a district court of appeals for judicial review.
Anyone who knowingly makes a false statement or conceals a material fact on their claim for unemployment compensation faces fines of up to $5,000 and imprisonment of up to five years.
Resources
If you have any questions regarding workplace safety and health standards, call the local Occupational Safety and Health Office of the U.S. Department of Labor or the Florida Department of Labor and Employment Security at (904) 488-3044.