A Primer of Florida Employment Law
Florida employment laws, like many other areas of law, can be complicated. Just like the rest of the country, states have control over many aspects of the employer-employee relationship including, among others: the hiring process, employee terms and conditions and the termination process. However, there are state-specific provisions that impact employers and employees throughout Florida.
As a general matter, it is important to understand that current employment law ignores the idea of "at will" employment. This means that if you negotiate specific terms into your employment with your employer, or you are subject to a collective bargaining agreement that alters your terms of employment, your employer must follow the agreements it entered into regardless of those agreements being more or less favorable than the general law.
The Fair Labor Standards Act (FLSA) sets minimum wage levels, Child Labor standards and overtime requirements. Like other states in the United States, businesses in Florida must pay employees at least the minimum wage set forth in the FLSA’s minimum wage regulations. Federal minimum wage rates can fluctuate yearly. FLSA also restricts child labor to ensure that minors do not work under conditions harmful to their health and well-being.
The Occupational Safety and Health Act imposes legal requirements on employers to maintain a safe workplace for their employees. The Occupational Safety and Health Administration (OSHA) has the duty to inspect and investigate working conditions and practices throughout the United States. OSHA has the ability to issue fines and citations to employers who violate safety requirements.
Federal employment regulations do not allow businesses to discriminate or deprive employees of rights because of the employee’s membership in a protected class. As for Florida employment law , Florida is an "at will" employment state, which means that an employee of a business can be terminated without notice. However, employers can be held liable for employment discrimination under Florida’s Civil Rights Act. State law also prohibits employers from retaliating against employees who: file a complaint, report a suspected criminal offense, testify or participate in an investigation. Retaliation is further described below in the limitations period compilation.
According to Title VII of the Civil Rights Act of 1964, it is illegal for an employer with 15 or more employees to discriminate based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act prohibits employment discrimination against those 40 years of age or older. Both Title VII and the Age Discrimination Act are applicable to Florida employers.
Under the Florida Whistleblower Protection Act, whistleblower protections are extended to private or public employees who report any legal violation or suspected misconduct to an appropriate government authority. The Florida Whistleblower Protection Act specifies that employees are protected from any retaliatory action taken by the employer.
The Florida Minimum Wage Act sets minimum wage levels for state employees.
The Florida Workers’ Compensation Act is the statute that provides guidance and direction to employers and employees who wish to make use of workers’ compensation claims. The Florida workers’ compensation program requires that all Florida employers pay into the program so that employees who become injured on the job can receive insurance benefits.
The Minimum Wage and Overtime Pay Regulations
Hourly paid employees who work for Florida companies must be paid no less than the federal or state minimum wage depending on whichever is higher. As of December 2013, the state minimum wage is $7.93 increasing to $8.05 beginning January 1, 2015. Those working in the Tampa Bay area and other counties in Florida, like Pinellas, Hillsborough, Pasco, and Hernando as well as in Miami-Dade, conditions are often better. In many parts of Florida, including Tampa, the minimum wage is higher than the federal rate. In the Tampa-St Petersburg-Clearwater metro area, the minimum wage is $10.08 for employers with 10 or fewer employees. Other Florida counties follow suit. So while the federal minimum wage remains at $7.25 per hour, Tampa Bay area counties remain better off economically than other areas in the country. When it comes to overtime rules, they mimic federal regulations such as being required to pay time-and-a-half after 40 hours of work in one week. The similarity of overtime regulations at the federal/state level will make the transition easy for time keepers in Tampa Bay and throughout all of Florida as those regulations remain unchanged.
Employment At Will and Exceptions
Most new employees in the state of Florida will sign an "at-will" employment agreement. This means that unless part of a labor union in a collective bargaining agreement, their employer is free to terminate them at any time, for any reason. However, there are many laws in place to protect employees from being terminated for certain reasons. For example, if an employer ends a worker’s employment because of their race, national origin, age, religion, sex, or for any disability, the employee may be able to file a lawsuit for wrongful termination.
Florida law protects employees from discrimination and retaliation. Shelly v. Martin, 627 So. 2d 24 (Fla. 2d DCA 1993). Other federal laws, such as Title VII, also prohibit employers from discriminating based on race, color, sex, national origin, age, and religion. The Age Discrimination in Employment Act (ADEA) further protects those who are over 40 years old, also barring employers from discriminating against them.
Along with this, Florida employment law also prohibits retaliatory employment termination. The Florida Whistleblower Act and other statutes prevent employers from terminating employees after they’ve complained of a public policy or violation of a law.
Anti-discrimination Laws
In Florida, anti-discriminiation measures begin on the federal level and extend all the way to the state level. Federal anti-discrimination laws dictate that it is illegal for employers to discriminate against employees based on age, sex, gender, race, pregnancy, disability, or national origin. Beyond these protections, Florida law additionally prohibits discrimination based on marital status or religion. Therefore, any employee who is discriminated against for any of these reasons can contact the Florida Commission on Human Relations (FCHR).
It is important for employees to document their claims of discrimination, keep records of relevant conversations, and make sure to get all agreements in writing. Equal Employment Opportunity Commission (EEOC) charges for discrimination need to be filed within 300 days if both federal and state laws apply. The FCHR investigates all charges of discrimination against employers, landlords, and businesses, and will make a determination as to whether discrimination occurred. If it did, then a lawsuit may be filed under the Florida Civil Rights Act. If it did not, then employees have 90 days to file suit and claim violations of federal discrimination laws still.
Employee Leave Protections
Sick leave, parental leave, family and medical leave, pregnancy leave, volunteer emergency responder leave, and military leave are all types of leave Florida employees are entitled to. While this all may sound overwhelming, it may already be more than what you think.
Florida Sick Leave Requirements
Florida does not require employers to provide sick leave. However, if you provide sick leave, you must follow the Florida Sick Pay Act. If an employer provides the opportunity to earn sick leave, the employer must allow employees to use any accrued sick leave for a temporary illness or injury to the employee or their immediate family, and may not discriminate against employees for taking sick leave.
Florida Parental Leave Requirements
Florida law also does not require employers to provide parental leave. However, under Florida law, if an employer provides the opportunity to earn parental leave, the employer must allow their employees to use any accrued and unused sick and vacation leave and may not discriminate against employees for taking this leave.
Florida Family and Medical Leave
Florida does not have a general family and medical leave law. However, the Family and Medical Leave Act (FMLA), a federal law, may provide similar leave for some employees. The FMLA requires employers with 50 or more employees who meet other qualifications to provide up to 12 weeks of job protected, unpaid leave per year to employees for certain medical or family reasons that include: If the FMLA does not apply , Florida employees are generally entitled to use up to five paid days of earned sick leave, personal leave, or vacation leave for personal or family medical needs. Florida law does not require employers to provide sick, personal, or vacation leave.
Florida Pregnancy Leave Requirements
Florida does not have a specific pregnancy leave law. However, the federal Pregnancy Discrimination Act offers protection to pregnant employees under federal law. Under the act, pregnant employees cannot be treated differently from other employees who may have a temporary disability such as a back injury. If a woman is temporarily disabled due to pregnancy she must be treated just as another temporarily disabled employee would be.
Florida Volunteer Emergency Responder Leave Requirements
Under the Florida Volunteer Emergency Responders Protection Act, you may not discriminate against an employee who is a volunteer firefighter, law enforcement officer, or rescue worker because of absences from work due to emergency responder duties. You must allow the employee to take at least 15 days of unpaid emergency responder leave per calendar year. However, you do not have to provide paid leave for emergency responder duties.
Florida Military Leave Requirements
Florida law does not require employers to provide military leave to employees. However, the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) has certain requirements for military leave. Under USERRA, employees who are absent from civilian employment because of military service are entitled to:
Workplace Safety and Health Regulations
Maintaining a safe workplace not only promotes employee well-being but also reduces the likelihood of legal actions stemming from work-related incidents. In Florida, the primary authority managing workplace safety and health is the Florida Division of Safety and Health (DOSH), which operates under the purview of state-run occupational safety and health regulations. It is fully authorized by the Occupational Safety and Health Administration (OSHA) to oversee all federal OSHA regulations.
The federal Occupational Safety and Health Act (OSH Act) was enacted in 1970 to ensure safe and healthy working conditions for employees in both the public and private sectors. OSHA mandates that employers comply with workplace safety and health standards, absolutely and with reasonable care, and requires that employees follow safety rules and standards as well.
Florida recognizes its safety history as that of a "pioneer in safety and health." To this end, DOSH offers an extensive compilation of local safety codes and regulations, all designed specifically for Florida employers. The Construction Industry Safety Act and the Workers’ Compensation Act, the two most significant laws in Florida’s Safety and Health history, both became effective in 1935. The Workers’ Compensation Act served as an example for other states and served as a model for the OSHA Act.
Under a plan approved by OSHA, Florida acts as a state plan wherein the state monitors its Own Safety and Health laws rather than submitting to federal OSHA jurisdiction over them. The Department of Labor and Employment Security administers the DOSH Division, which receives certification from OSHA every three to five years.
DOSH enforces the same standards as OSHA but may impose more stringent regulations than those of OSHA. Therefore, while Florida companies are also subject to OSHA regulations, they must also comply with any additional Florida-specific regulations.
DOSH conducts inspections to ensure companies are providing a safe and healthful workplace to employees. DOSH staff inspect for compliance with all standards, rules and orders pertinent to the workplace. State law authorizes the Department of Labor and Employment Security to cite violations of safety and health standards. OSHA and DOSH maintain a state-federal agreement to promote efficiency in case management and to avoid duplication of inspections. As a result, OSHA will not inspect unless specifically requested by DOSH or in tandem with a DOSH inspection.
Termination and Wrongful Termination Laws
In Florida, employees are generally considered to be employed under the doctrine of "employment at will," which means employers can terminate their employment relationship "at-will" as long as it doesn’t violate public policy considerations or other exceptions recognized by statute or in equity. For example, an employee may not be terminated on the basis of their race, sex, nationality, disabilities, age, religion or genetic information.. Hence, an employee can bring a wrongful termination lawsuit against his/her employer with the filing of a charge with the EEOC or the Florida Commission on Human Relations. After an employee receives a "right to sue" letter from the EEOC or FCHR, an employee may file a lawsuit in state or federal courts for wrongful termination.
Temp and other non-traditional employees have certain protections that may apply. If you are a temp or a non-traditional employee, it is important to understand your employment status with regard to the company. Regardless, sometimes an employer may terminate employees for reasons not necessarily listed in the Florida Civil Rights Act or other employment statutes. An employee not covered by the civil rights law or other employment statutes, such as an employee who is employed under an at-will arrangement, may bring a wrongful termination lawsuit against his/her employer if the termination violates public policy considerations or constitutional rights. Generally, if the termination was based on the employer’s violation of the public policy goals embodied in some constitutional, statutory or decisional law provisions, employees may have any available remedies. McCabe v. Sharrets, 53 So. 3d 1072 (Fla. Dist. Ct. App. 4th Dist. 2010). In McKenzie v. Time Warner Entertainment/Advance/Newhouse Partnership, 779 So. 2d 267 (Fla. 1st DCA 2000), the court found that it may be just as important to use the wrong procedures or the wrong reasons for discharging the company’s employees as it is to discharge employees for the wrong reasons.
Employee Benefit and Compensation Laws
The types and amounts of compensation and benefits employers provide to employees vary significantly among businesses. Florida law requires certain types of compensation and benefits that virtually every employer must provide. It is typically in the employer’s best interest to provide additional benefits and compensation beyond what is required by law to try to attract and retain quality employees.
These benefits and compensation include:
Time Off Florida law does not require an employer to provide paid time off to employees. However, for employers that do provide paid time off, such as vacations, they must follow the particular policies and plans that they maintain.
Retirement Plans The federal ERISA statute requires that plans that provide retirement or deferred compensation benefits, such as a 401(k) plan, be administered in accordance with the plan documents. Florida law does not govern, or provide additional benefits. However, if an employer provides a retirement benefit, there are various federal laws, including the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code, that govern how those plans must be administered . These laws are generally determined by reference to federal law, rather than Florida law.
Insurance Benefits Employers that provide retirement plans are generally also required to obtain and provide insurance protection under the federal ERISA statute. Additionally, if an employer maintains a group health plan, it may be subject to an array of federal laws that establish minimum requirements, including health care continuation coverage (COBRA), pre-existing conditions limitations, self-funding, guaranteed issue, etc. Florida law also protects individuals against discrimination in employment on the basis of health insurance coverage, and establishments of improper group health premium rates.
Other Benefits Florida law does not require employers to provide any other type of benefits, such as employee stock ownership plans. The federal tax code grants favorable tax treatment to certain employee stock ownership plans by allowing tax deferral to shareholders and certain others.