Basics of Employee Rights Legislation
Three main federal laws are responsible for many of the workplace rights enjoyed by employees in Florida and the United States. The Fair Labor Standards Act (“FLSA”) mainly governs issues regarding employee wages and overtime hours. The Family Medical Leave Act (“FMLA”) provides employee rights with certain protections if the employee must temporarily leave his or her job because of certain health-related issues. The Occupational Safety and Health Act (“OSHA”) is designed to ensure that employees’ work environments are safe and free from dangerous conditions.
These three main federal laws, combined with other federal laws and state laws, provide employees with a number of rights and protections. Whenever both federal and state employment laws cover the same issue, the law that grants the employee greater protections will apply. For instance, where the federal law guarantees a certain minimum wage, and state law provides for a higher minimum wage, the employee will be entitled to the higher minimum wage.
Employment in Florida
Many employees believe that their job is protected unless they break the rules, do a bad job, or commit some other type of wrongdoing. Unfortunately, this is not usually the case. In terms of employee “rights,” Florida sucks.
Florida is an “at-will” employment state, meaning that either you or your employer can terminate your employment at any time and without any advance warning. In other words, “at-will” employees can leave employment at any time. Likewise, employers can fire at-will employee for seemingly arbitrary reasons, so long as those reasons are not unlawful.
Do Not Assume You are an “At-will” Employee
You should not assume you are an “at-will” employee, look at your employment agreement and any employee handbooks if there are any. You should always keep copies of any employment agreement and employee handbooks your employer gives you. Ask your employer for copies, if you forgot to do so or cannot find your copies.
Look at whatever company documents you have (handbooks, memos, emails, etc.) and see what standards the company has laid out regarding discipline. We are happy to review your documents for free if you are not sure what they mean. For example, if the policy states that you have to be warned verbally, or in writing, and you have not been through the steps, you need to be prepared to explain this to your supervisor or human resources.
You also want to look at what the company’s standards are for the performance issue being claimed. However, many, if not most, employees in Florida are “at-will” employees which means that, absent something in writing spelling out specific grounds for termination (a “for cause” provision), you can be fired for any reason, whether it is a good reason, a bad/stupid/mean/unfair reason, or a made up reason.
Wrongful Termination in Florida
Even if your employment is “at-will,” your employer cannot terminate you for an illegal reason. In Florida, if you are an “at-will” employee, the only legally recognized “wrongful termination” is if your termination was based on your race, religion, national origin, age, gender, sexual orientation, health condition or disability, pregnancy, and maybe a few others. If you are a whistle-blower or have been subjected to sexual harassment and are terminated, you might have claims even if you were “at-will” employees. Also, in certain instances if you are a government employee or part of a union, who may have greater rights.
Unless you do have something in writing that says you can only be fired “for cause” (meaning for specific reasons usually stated in an employee handbook) or that you are not “at-will” (usually in an employment agreement, keep in mind it might not use the exact term “at-will”) and you are disciplined or fired for anything other than the illegal/discriminatory reasons above, it is extremely unlikely that you have a claim for wrongful termination.
Our Two–Cents
It is not fair and it is unjust but it is currently the law. Many States do have expansive rights for employees but Florida is not one of them. Big businesses stuff the pockets of politicians and politicians pass laws that greatly benefit the financial interests of big businesses.
Even worse, by falsely assuming the choice is binary, the big businesses and politicians present these laws to us as protecting the employees “right to work” or “right to work where/when they want.” The false assumption is that mandating “for cause” termination would lead employees to being forced to work at jobs they do not want to.
What Employees Should Do Before or After Being Fired
Find out what the reason or reasons are for your termination. Ask your boss or supervisor, even if you think you know why and even if you were already fired. Of course, your employer may lie or the reason may be a cover excuse, but find the reason—Did you blow a sales call? Argue with co-workers? Come in late? Ideally, you would do this in writing (email or text) but a verbal explanation is better than no explanation.
Take notes for yourself about what is happening, including dates and times. Write down names, contact numbers, and emails of co-employees or witnesses to particular events so, in the event of litigation, you know where and how to reach these people.
Collect evidence to support your claims. Make copies of unfair evaluations, emails that were inappropriate or discriminatory/harassing, documents showing that the discipline you received was unfair and untrue, and ask for a copy of your personnel file. If your employer will not give you a copy, ask to review it and take notes about what it contains.
You can take pictures with your cell phone of offensive things in the workplace or what is in your personnel file to preserve the evidence. If there are emails that support your claims, forward them to your personal email. Do not take confidential documents containing your employer’s trade secrets, or customers lists, or sensitive documents not pertaining to you, because that could wind you up in a lawsuit for taking that type of information.