Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on race, color, religion, gender / sex, and national origin. The Florida Civil Rights Act (modeled after Title VII) prohibits discrimination on those bases, and additionally prohibits employment discrimination on the basis of age, marital status and handicap. On the Federal level, the Americans with Disabilities Act (“ADA”) prohibits disability discrimination and the Age Discrimination in Employment Act (“ADEA”) prohibits age discrimination. The federal law does not have “marital status” anti-discrimination protection like the State of Florida has in its Civil Rights Act. There are also other federal civil rights laws, such as 42 USC §1981, that prohibit racial discrimination and can be applied to protect employees’ rights. For public sector employees, civil rights laws such as 42 USC §1983 can provide legal recourse for employees when their governmental employer violates their constitutional rights under “color of law.”
Each of the anti-discrimination statutes has a specific scope of coverage, and statutes of limitations also apply. Many of the statutes contain administrative filing prerequisites with short deadlines to which employees must adhere in order to preserve their legal claims. Prior court rulings and statutory exceptions apply to each of the anti-discrimination laws, making these cases complex, demanding and challenging to pursue.
Employment Contracts and Agreements
Florida Employment Contracts, Non-Compete Agreements and Severance Agreements are often written in a manner that benefits the employer and may limit an employee’s rights. Before signing an employment contract or employment-related agreement, employees should have such agreements reviewed by an employment lawyer so that the employee learns and understands the effect such contract / agreement will have upon the employee and his or her legal rights. Employers typically have lawyers who look out for and protect the best interest of their client – the employer. Employees may want to seek out legal counsel during the decision-making process rather than waiting until a crisis occurs. More and more executives, managers, salespersons, professionals and other employees are becoming sophisticated in their pre-employment and post-employment contract negotiations, and obtaining solid employment contract footing for themselves prior to the employment, during employment and at the conclusion of employment. Often prior to employment, employers who need the services of a particular person will agree in writing to a particular severance pay / severance package in the event that the employment later terminates. Such pre-planning can yield great benefit and solace to employees when unexpected termination later occurs.
Non-Competition agreements are enforceable in Florida when they comply with the requirements of the applicable Florida Statutes. Employees should not sign non-competition agreements under the “belief” that those agreements will later be ignored, invalid or not enforced. Many employees sign non-competition agreements without seeking legal counsel, and later learn that their beliefs about enforceability were incorrect. There is a great deal of incorrect information about non-compete agreements passed around in co-worker communications. Each non-competition agreement is unique and should be analyzed in light of the particular facts and circumstances of the employment, events, and industry in question.
No one should endure being the victim of sexual harassment in the workplace. In recent years, sexual harassment has been one of the most highly publicized areas of employment law. Even after the implementation of workplace sensitivity training, as well as, “zero tolerance” policies, sexual harassment still exists in businesses throughout Florida and Georgia.
Not everyone is covered by Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. But those employers who are governed by these laws are prohibited from engaging in employment discrimination on the basis of gender or sex. Through court rulings over the course of many years, sexual harassment has been found to be a type of gender discrimination. Therefore, when an employee complains or sues based upon sexual harassment, he or she is actually complaining of sexual or gender discrimination. Sometimes the sexual harassment also crosses over into behavior that is a civil tort or criminal violation (such as assault and battery, for example). In any form, sexual harassment typically leaves the victim feeling violated, humiliated and powerless. Sexual harassment at work can affect a victim’s mental health, home life and general well-being, in addition to harming work-enjoyment, work-performance and overall morale.
Sexual harassment law covers both men and women. Men are protected from sexual harassment in the same manner as women. The Supreme Court has also ruled that sexual harassment can be found to occur even in a single-gender workplace. The case law has developed a complex and fact-specific set of rules and standards that apply to the analysis of whether particular facts and circumstances will or will not constitute actionable “sexual harassment” in court.
A person who feels that sexual harassment is occurring or has occurred in his/her workplace should consult legal counsel for guidance as to how to handle the situation. People often do not seek legal counsel until late in the process, when they have already made errors in the way that they handled the situation. Experienced legal counsel can advise and guide a person regarding how to best protect his or her rights in the situation.
Generally speaking, Sexual harassment is described as any unwelcome sexual behavior in the workplace. Such behavior can take many forms such as:
- Physical Sexual Harassment: unwelcome physical embraces, kissing, groping, grabbing, touching personal areas, brushing against or patting;
- Verbal Sexual Harassment: sexual innuendos, sexual questions, descriptions of sexual acts, ‘come-ons’, sexual propositions, derogatory sexual comments, statements about intimate body parts, and crude or “dirty” jokes;
- Visual Sexual Harassment: pictures of naked men or women or sexually suggestive pictures, posters, signs, cartoons, or drawings.
Legal counsel will consider and evaluate the total facts and circumstances to determine whether unlawful sexual harassment has occurred. Experienced and knowledgeable legal counsel should be consulted on this issue.
People who properly object to illegal harassment in the workplace have certain legal protections against retaliation. Even people complaining on behalf of of others are entitled to legal protection from retaliation.
It is important to note that sexual harassment also occurs in the non-workplace context, such as when a doctor, therapist, teacher, counselor, minister or pastor abuses his/her power in the relationship and takes sexual advantage of a patient, client or congregation-member. The power imbalance in such situations is akin to the power imbalance in workplace sexual harassment situations. Those in positions of power or authority do not have the right to take sexual advantage of their subjects.
Wage Hour and Overtime Pay
Employment law includes cases involving unpaid wages and unpaid overtime premium. Many times, employees are either intentionally or unintentionally denied pay to which they are legally entitled. Some unpaid wage claims are a matter of contract, and others constitute a violation under the Fair Labor Standards Act (FLSA), which governs minimum wage and overtime pay for covered employees.
The Fair Labor Standards Act requires that covered employers pay at least minimum wage, and also overtime premium (typically 1.5 times the employee’s average hourly rate for the workweek) for each hour over 40 hours worked in a workweek. There are many exemptions and classification issues that make FLSA issues complex and fact-intensive. Generally speaking, employees who are “exempt” from overtime based upon their salary and their actual job duties are not entitled to overtime pay. However, employees who do not fit within a particular exemption are entitled to overtime pay. Sometimes employers misclassify employees, causing non-payment of overtime premium to those who are actually entitled to it. Some employers misclassify or under-pay employees intentionally, while others do it unintentionally. Nonetheless, non-exempt employees covered by the FLSA are entitled to overtime premium pay.
Florida’s Unemployment Compensation Law provides benefits for most employees who are terminated from their employment. Unemployment Compensation benefits can be denied only in very limited circumstances such as when the employee is terminated for actual “misconduct” as narrowly defined by statute or when the employee voluntarily quits work without good cause attributable to the employer. Employees who file for Unemployment Compensation benefits and are denied their claims can appeal the decision.
Employers often contest Unemployment Compensation benefits in circumstances where the employee is in fact entitled to benefits. These benefits are intended to be a safety net, and may not be denied based upon mere poor work performance. Employees who are denied benefits or whose former employer appeals the benefits award should seek legal counsel so that they can become knowledgeable in the legal standards to argue in their Unemployment Compensation Benefits Appeals. Some employees consult counsel and then handle the hearings on their own, while other employees retain attorneys to represent them in their Unemployment Compensation Benefits hearings.
Florida and Local Government Employees
Employees of local and state governments have their own unique set of employment laws / constitutional protections and political/legal dynamics to consider. Police officers, firefighters, city managers, city and county employees at all levels, State of Florida employees at all levels and government contractors have employment-law related issues that apply only to government employment. The landscape of constitutional law as well as administrative procedural options, combined with overriding political forces, can make navigating public sector employment law issues uniquely challenging and complex.
Other areas of Employment Law include:
- Medical Professionals
- Executive Employment
- Shareholder Employees
- Severance Agreements / Severance Packages
- Employment Termination Issues
- Wrongful Termination
- Qui Tam – Whistleblower
- Hostile Work Environment
- Employee Discipline Issues
- Workplace Violence Cases