Donna M. Ballman, P.A. HomeFrequently Asked Questions by Donna Ballman
I get asked loads of questions about employment law. I get about 300 emails daily. You have to have a sense of humor to stay in this business over 25 years. If we didn’t laugh, we’d probably have to cry.
What would I really like to say? What’s the brutal, no-holds-barred truth about Florida employment law?
Here are some of the questions I get, and brief (sometimes funny, but always correct) answers. The answers aren’t intended to be legal advice, but just some brief guidance that may send you in the right direction and give you a little chuckle along the way.
If you’re too distraught to laugh right now, you probably want to email me instead. If you email me about your problem, I promise to give you a serious answer.
As always, getting legal advice from a lawyer who practices employment law in your state is best BEFORE you take action.
Should I quit my job?
I’m being harassed? Should I quit?
I wrote a long letter to the CEO complaining about my boss’s incompetence and lack of ethics. I got fired. Can I sue?
I spoke up in a meeting about all the problems with the company and I was fired. What about my free speech rights?
My boss told me in the meeting where I was fired that he thinks I stole money. I want to sue him for defamation of character.
My employer fired me because she didn’t like my shoes that day. Can she get away with that?
My boss called me the n-word and now I want to sue. Can you help?
I was raped at work. Can I sue?
My boss is such a bully that I’m on antidepressants and am thinking about suicide. Should I quit?
When I was fired I wrote a long letter to the company president telling her my whole story about how I was mistreated. She didn’t respond and now I want to sue.
My boss wants me to sign a non-compete agreement and says he’ll fire me if I don’t. But he says these things are unenforceable anyhow and not to worry. Should I sign?
Why won’t you take cases against government entities?
My supervisor and co-workers will back everything I’m saying.
I want to sue my boss personally.
I was fired because my boss wanted to hire his best friend or brother-in-law. Can I sue?
I’m going to tape record my coworker to prove she’s sexually harassing me. Do you want to hear the tape when it’s done?
I quit my job, then changed my mind. They wouldn’t let me retract my resignation. Can I sue?
Loss prevention is going to take me into a room and tell me I have to sign a statement admitting I stole inventory. They say I can’t go until I sign. I’m afraid if I don’t sign they’ll fire me. Should I sign?
My supervisor says he’s going to deny my unemployment. Can he?
I was fired after I demanded my fifteen minute work break. I know I’m legally entitled to regular work breaks. Can I sue?
I missed work to take care of a sick kid. Can I be fired?
The laws in Florida are terrible for employees. What can I do to get them changed?
I still have questions.
In this economy? What, are you nuts? That’s not really a legal question, but unless you have another job lined up, probably not.
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I’m being harassed? Should I quit?
See answer above. But now we’re getting closer to a legal question. In general, at least in Florida, harassment isn’t illegal. Bullying isn’t illegal. If you’re being harassed due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category, then, and only then, may the harassment be illegal. For discrimination, you’re only protected if the employer has 15 or more employees. For whistleblowing in Florida, they have to have at least 10 employees. For Family and Medical Leave, they must have at least 50 employees. So you need to be sure the law protects you. Think you’re protected?
Still, you should not quit.
What you should do is report the harassment to human resources or whoever is named in the company’s harassment policy. I recommend you report it in writing so they can’t deny that you did it. You have to give them time to investigate and take action to stop it.
If they don’t stop it, or if they fire you for reporting it, then contact an employment attorney to discuss your remedies.
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I wrote a long letter to the CEO complaining about my boss’s incompetence and lack of ethics. I got fired. Can I sue?
Probably not. What on earth made you write a letter like that? No, you don’t get to write emails, memoranda, letters, articles, or Facebook entries attacking your boss or the company unless you want to be fired.
Ethical violations and incompetence are not things you can complain about and be a whistleblower. If the ethical violations are also legal violations, you may be a whistleblower. However, if your boss is ripping the company off or going off on her own and breaking the law, you’re still probably not a whistleblower.
To be a whistleblower under Florida law, you have to object to or refuse to participate in an illegal practice or activity of the company. For instance, if you object to discrimination, mortgage fraud, Medicaid fraud, dumping of pollutants, something that is a violation of a law, government regulation or ordinance, that the company knows about and condones or allows, then you may be a whistleblower.
If you’re a Florida whistleblower and the company fires you or demotes you, then you should contact a Florida employment attorney about your rights.
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I spoke up in a meeting about all the problems with the company and I was fired. What about my free speech rights?
Unless you work for government, guess what? You have no free speech rights. You can’t say whatever you want and expect not to be fired. There is no First Amendment in corporate America.
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My boss told me in the meeting where I was fired that he thinks I stole money. I want to sue him for defamation of character.
Good luck with that. Unless your company is making a false statement of fact about you to someone other than you, it’s not defamation. They can say whatever they want to you about you. If they make a false statement of fact, such as saying you stole money, to a potential employer, then that may well be defamation. If that happens, contact an employment attorney to discuss your rights. However, unless that false statement cost you the job, you may be best off having a lawyer send a cease and desist letter, since you might not have damages worth pursuing.
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My employer fired me because she didn’t like my shoes that day. Can she get away with that?
Yep. Well, probably.
Florida is an at-will state, which means they can fire you for any reason or no reason at all, including bad footwear. However, if they didn’t like your footwear because it’s orthopedic and medically required, then you might have a disability discrimination case. If they say it’s because they didn’t like your footwear but your colleague wore identical shoes and they are of a different race, age, sex, religion, pregnancy, national origin, marital status, or color then you may have a discrimination claim.
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My boss called me the n-word and now I want to sue. Can you help?
Probably not, unless it’s happened more than once, and you’ve reported it to human resources already and they failed to stop it. For a company to be liable for race-based or any other type of harassment it has to be so severe or so frequent or widespread that it alters the terms and conditions of your employment. And you MUST report it first. Not my rule. The Supreme Court’s rule. I recommend you report it in writing so they can’t deny that you did it.
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I was raped at work. Can I sue?
Sadly, the answer is only maybe.
First of all, do whatever you need to do to keep yourself safe. That’s not legal advice, and if it means you ultimately have to quit it may actually hurt your case, but don’t put yourself in danger. No case is worth it.
What I’d suggest is call the police and report it. Then go to the hospital and get treatment. Then call human resources and report it. Follow up with a report in detail in writing.
Hopefully the company will fire the rapist and you can go back to work in safety. Hopefully that happens before you quit. But if the company is going to put you to work alone with the rapist, do what’s right to keep yourself safe and ignore the legal advice. The possibility of a lawsuit is not worth risking your safety.
If the company was already on notice that the rapist was a sexual harasser, or worse, that he was prone to physical attacks on females, they might be liable. If he was your direct supervisor who had power to fire you, they might be liable. But there’s a host of horrid case law that tells me any case like this is not a slam dunk.
Truthfully, most employers will be mortified and will do anything they can to get rid of the harasser under these circumstances and make your job safe. So you should report it and give them a chance. If they do that, you can’t sue them but you will have a job. They may even offer you counseling and medical treatment. Take advantage of their resources if they have them.
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My boss is such a bully that I’m on antidepressants and am thinking about suicide. Should I quit?
Heck yes. But that’s not legal advice. No case is worth putting your mental health at risk. I’d suggest looking for another job first, unless you really think you might harm yourself if you stay one minute longer, but at some point you have to get out of there. Still, bullying is not illegal. You may not have a lawsuit, but you’ll feel much better when you leave. You will want to contact an employment lawyer to see if you have any potential claims.
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When I was fired I wrote a long letter to the company president telling her my whole story about how I was mistreated. She didn’t respond and now I want to sue.
I really wish you hadn’t done that. You should talk to an employment lawyer before you write anything. I see too many letters where an employee admits they did something wrong, or worse, admits that the firing was due to favoritism and not discrimination or something illegal. You’re hurt and frustrated. Write the letter and don’t send it. Write it and take it to an employment attorney. But don’t send it until you figure out whether you might be wiping out potential legal claims.
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My boss wants me to sign a non-compete agreement and says he’ll fire me if I don’t. But he says these things are unenforceable anyhow and not to worry. Should I sign?
Continued employment is valid consideration for a non-competition agreement in Florida. They can fire you for not signing, and signing under the threat of termination is not duress that will get you out of the agreement. Don’t believe anyone when they tell you not to worry about signing one. Get legal advice before you sign.
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Why won’t you take cases against government entities?
Because I prefer to keep my sanity and to actually make money. The less snarky answer is that government has infinite time and money to spend on dragging you through the courts for 10 or more years and has little motivation to settle. They are a pain in the neck to deal with and will appeal until you are dead, broke, or just plain exhausted.
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My supervisor and co-workers will back everything I’m saying.
No they won’t. They’ll lie to save their jobs, or “forget.” In all my years of law practice, very few people have been willing to risk their jobs for the sake of justice. Be prepared to have everyone who used to be your work friends turn on you, even shun you, if you rock the boat.
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I want to sue my boss personally.
You probably can’t. Individuals aren’t liable for discrimination, sexual harassment, whistleblower retaliation, or Family and Medical Leave Act retaliation. She might be personally liable ifshe fails to pay your overtime, or if she commits an intentional tort like battery. In any event, why bother? Unless she’s rich, you’ll probably end up with an uncollectable judgment.
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I was fired because my boss wanted to hire his best friend or brother-in-law. Can I sue?
Not unless you were singled out for replacement due to race, age, sex, pregnancy, national origin, disability, etc. Or if he decided to hire a friendly face because you are a whistleblower, made a worker’s comp claim, took FMLA leave, or some other protected status. There is absolutely nothing illegal about favoritism or nepotism, with the exception of some government entities that have ordinances or laws prohibiting this.
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I’m going to tape record my coworker to prove she’s sexually harassing me. Do you want to hear the tape when it’s done?
No. Because taping someone without their consent in Florida is a crime. The tape won’t be admissible in court and may well land you in jail. Don’t do it.
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I quit my job, then changed my mind. They wouldn’t let me retract my resignation. Can I sue?
No. They don’t have to let you take it back, which is why you shouldn’t quit when you’re upset. That being said, if you fit into one of the legally protected categories you may still have a claim. For instance, if they let people of a different race retract resignations, then you might be able to claim discrimination. You will probably want to contact a Florida employment attorney to discuss whether you have potential claims.
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Loss prevention is going to take me into a room and tell me I have to sign a statement admitting I stole inventory. They say I can’t go until I sign. I’m afraid if I don’t sign they’ll fire me. Should I sign?
No. No. No. Call an attorney immediately. You’ll get fired if you admit to a crime. So you’re already gone. The only question is whether you’ll also end up in jail or with a big judgment against you. If they tell you that you can’t leave, stand up and open the door and go anyhow. If they block the way, pull out your cell phone or pick up the phone in the room and call 911. If you don’t have a phone and they block your way, demand to be allowed out. If they still won’t let you go, scream at the top of your lungs for help. Eventually you will be allowed out of the room, and you should call 911 the second you leave the premises and tell the police what happened. Then call an employment attorney and get advice. But whatever you do, don’t sign something admitting to a crime. Ever.
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My supervisor says he’s going to deny my unemployment. Can he?
Not unless he’s the Agency for Workforce Innovation. The state of Florida can deny unemployment, not your employer. Your employer can challenge your right to unemployment, but it’s the state that decides. And you can appeal if the state denies your right.
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I was fired after I demanded my fifteen minute work break. I know I’m legally entitled to regular work breaks. Can I sue?
Florida law does not require work breaks. Not for lunch. Not for rest. Not for coffee. Zero. Zip. Not for bathroom. Can’t hold it? You can be fired. Is this any way to treat employees? No. But employers can be big jerks and get away with it in Florida.
However, if you need breaks as an accommodation due to a disability then the employer may have to grant them.
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I missed work to take care of a sick kid. Can I be fired?
Yes, unless the illness was serious enough to qualify for Family and Medical Leave, and unless you work for an employer big enough and long enough to qualify.
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The laws in Florida are terrible for employees. What can I do to get them changed?
Write, email, call and meet with your legislators. Vote wisely. Ask candidates and elected officials where they stand on these issues. Don’t vote based upon what certain fear-mongering networks are telling you, and I don’t need to identify them here because you know in your heart who they are. Check your facts and if legislators won’t support reform of the horrid employment laws in Florida, vote against them. Start a petition drive to put legal change on the ballot. There’s nothing to say you can’t change things. Hey, if you’re unemployed you have time on your hands, right? Even if you have a job, every voice in favor of change can help.
A couple of changes that would make a huge difference:
- a law saying employees can only be fired for just cause (other states have done this and their economies did not crash, despite what naysayers claimed);
- substantial changes to the non-compete laws, such as saying that non-compete agreements can’t be signed based on a threat of being fired, that they can’t prevent customers from following without being solicited, that they can only be used to protect real trade secrets, and allowing employees to seek emergency relief to get an injunction stopping an employer from writing potential employers to get them fired, the same as employers can get against employees who steal trade secrets.
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Email me . I’ll be glad to try to answer if it’s about Florida employment law, and I promise I’ll be serious.
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