Florida Employment Law – A Clarification of the Issues
by: Donna M. Ballman
Donna M. Ballman, P.A.
5001 S. University Drive, Suite G
Ft. Lauderdale, FL 33328
As an attorney who has represented both companies and individuals in employment law for over 20 years, I have found that Florida employment law is sometimes confusing for both employers and employees. By writing this article, I hope to clear up some basic misconceptions. Here are the top five areas about which people are confused:
- Wrongful discharge/fired for no reason : There is no such thing as a "wrongful termination" suit in Florida. Unlike some other states, Florida is an at-will state, which means an employer may fire, demote, hire, promote and discipline employees for pretty much any reason, or no reason at all. However, employees do have some legal protections, such as discrimination, discriminatory harassment, illegal retaliation, worker’s compensation, family and medical leave, testimony under subpoena, and defamation.
- Harassment : General "harassment" is not illegal. The boss is allowed to be a jerk. Harassment because of the employee’s race, sex, age, religion, national origin, color (essentially, shade), pregnancy, disability, marital status, or, sometimes, sexual orientation, is illegal. It must be so severe or pervasive that it alters the conditions of employment. Single or occasional comments and actions are usually not considered harassment. If the employer has a harassment/ discrimination policy, the employee must report it and give the employer the opportunity to correct it before the employer is liable, unless the harassment results in a firing, demotion, or other "tangible" action.
- Discrimination : Employers with 15 or more employees (sometimes 5+) may not discriminate because of race, sex, age, religion, national origin, color (essentially, shade), pregnancy, disability, marital status, or, sometimes, sexual orientation. The employee must show they were treated differently under almost identical circumstances than those of a different category, or that bigoted comments were made. Suits must be based on actions that affect employees in the pocketbook ("tangible" actions), such as firing, suspension without pay, denial of promotion, demotion, or refusal to hire.
- Defamation : Generally, an employer is immune from suits based upon information given in references. That doesn’t mean that an employer may knowingly give false information. An employer may be sued for defamation if they make knowingly false statements, or with reckless disregard as to their truth, on matters such as theft, dishonesty, termination, criminal behavior, or discrimination.
- Retaliation and whistleblowing : An employee may not be retaliated against for opposing discrimination; filing a discrimination claim with EEOC or another agency; testifying, participating, or assisting in any manner regarding a discrimination case; reporting or threatening in writing to report illegal activity to a governmental agency; testifying before or providing information to, a governmental agency; or objecting to, or refusing to participate in, any illegal activity, policy, or practice of the employer.
If you believe you have a legal issue regarding an employment matter, the best course of action is to contact an attorney before taking action. Most good employment attorneys would be glad to speak with you before a problem gets out of hand. Addressing an employment problem early is the key to resolving it.