Employment Law Attorneys

What Power Does the Florida “At-Will” Law Give Employers?

Florida is an “at-will” employment state, giving employers a significant level of power in controlling employee’s compensation, privileges, and terms of employment. The at-will doctrine allows employers to terminate employees for any reason or no reason at all, with or without notice, and provides employees with the corresponding right to quit without a reason and without notice as well.

Employers may not discriminate against an employee or prospective employee on the basis of race, religion, sex – which includes marital status, LGBTQ status, and gender identity – or national origin under Title VII of the federal Civil Rights Act of 1964. In addition to Title VII, the alphabet soup of employment laws includes the ADA, the Americans with Disabilities Act, the PDA, the Pregnancy Discrimination Act, the ADEA, the Age Discrimination in Employment Act, the EPA, the Equal Pay Act, the Rehabilitation Act of 1973, GINA, the Genetic Information Non-Discrimination Act, and USERRA, the Uniformed Services Employment and Reemployment Rights Act, among others, all of which protect employees and job applicants from discrimination, harassment, and retaliation based upon their membership in a protected category.

What are the Most Common Types of Workplace Lawsuits and Grievances?

Employers and employees alike both stand to benefit from a working knowledge of Employment Law and risk abatement strategies.

According to Pollack Peacebuilding Systems, in 2018, there were 76,418 workplace discrimination charges in the United States, with U.S. companies facing nearly a 12 percent chance of facing an employment lawsuit. According to a 2019 article in the Washington Post, more than one million employment discrimination complaints have been filed since 2010. As you might guess, workplace discrimination is one of the most common reasons for an employee lawsuit, alongside:

• Hostile Work Environment,
• Wrongful Termination, and
• Retaliation.

While the above are the most common reasons for the filing of a lawsuit, when employees were asked about their primary workplace grievances, they raised additional issues regarding Pay, Benefits, Bullying, and Workplace Safety.

Independent Contractors and Misclassification of Employees as Independent Contractors

An independent contractor provides goods or services under the terms of a contract that, while dictating the outcome of the work, allows the contractor to retain control over how the good or service is provided, with the potential for profit and loss based on their personal performance. An independent contractor is not under the employer’s control or guidance, other than what is specified in the agreement in place between the two. In short, independent contractors treat their employers like clients, usually have multiple clients, and are self-employed.

There are financial and other motivations to misuse independent contractor classification on the part of employers. An employer has no obligation to provide benefits to an independent contractor, and perhaps more importantly, the employer is not required to pay Social Security and unemployment insurance for independent contractors. These tax savings, in addition to savings on income and Medicare employee taxes, can easily save an employer between 20 and 40 percent on labor costs. Additional risks to employees, should they be misclassified, include:

• No minimum wage or hour laws,
• Some EEOC laws that protect civil rights of employees do not apply,
• No requirement to obtain and pay for workers compensation coverage,
• No access to union organizing,
• No requirement for health or pension plans, and
• No requirement to verify employee citizenship.

One extremely common misunderstanding is believing that independent contractor classification is something that can be obtained by the mutual consent of the employer and employee. This is an extremely common, and often extremely expensive, error; independent contractor status is a legal status that cannot be conferred by agreement. A worker is either an employee or independent contractor under the law, and no amount of contracts or job titles can alter that status. Consequently, an alarming number of purported “independent contractors” are, in fact, simply misclassified employees under the law. If you cannot articulate exactly why a given worker qualifies as an independent contractor, as opposed to a regular employee, you are taking a very expensive risk.

Of course, any number of misclassifications are entirely accidental or the result of a flawed process. Even if the misclassification is not intentional, however, employers could still face stiff penalties including:

• Monetary penalty equal to 0.5 percent of the unpaid tax liability for every month—no more than 25 percent of the total tax liability,
• 40 percent of FICA taxes that were not withheld from paychecks,
• Interest assessed daily from the date FICA taxes were to be collected, and 100 percent of matching FICA taxes, and
• 5 percent of the employee’s wages.

Are Florida Employers Required to Pay Overtime to Employees?

In the state of Florida, both federal and state laws determine when and how much employees must be paid. Employers must pay their employees the highest minimum wage applicable, whether that is federal, state, or local. As of 2021, Florida minimum wage is $8.65 per hour. Failure to pay overtime is among the most common wage violations by employers in the state of Florida.  Florida employers are subject to federal overtime standards, meaning that non-exempt employees have the right to overtime pay. This means that non-exempt employees must be paid overtime wages totaling 1.5 times their regular hourly wage for any hours worked over 40 in any given workweek. Other categories of employees may be exempt, such as executive or administrative employees. However, employers should perform their due diligence before declaring an employee exempt from overtime pay, as terms like “executive” and “administrative” have extremely strict, specific meanings under the law; a managerial employee is not necessarily an executive, and a clerical employee is not necessarily an administrator. Employees cannot “waive” overtime, nor consent to being classified as exempt; entitlement to overtime wages is a legal requirement that cannot be conferred by agreement. There is no such thing as “comp time” in the private sector.

If an employee is entitled to overtime pay, yet the employer has failed to pay the time-and-a-half rate, the employee may file a lawsuit to receive their earned overtime pay. Federal and state law also gives employees the right to collect penalties in addition to the wages they should have been paid if they are successful in their claim. For unpaid overtime, employees are entitled to liquidated damages under the Fair Labor Standards Act in an amount equal to the employee’s unpaid overtime. In plain English, that means that the employee is awarded double the amount of their unpaid wages.

As an example, if unpaid overtime equaled $2,000.00, then the employee could seek another $2,000.00 in liquidated damage, for a total of $4,000 total from the employer. In addition, the Fair Labor Standards Act requires an employer who violated the law to pay for the attorney’s fees incurred by an employee who successfully seeks payment of unpaid wages, including overtime. Such fees often exceed the amount of unpaid wages altogether. It is thus extremely important to speak with an experienced Florida employment lawyer if you suspect wage discrepancies.

How Should Harassment, Discrimination and Retaliation in the Workplace Be Addressed?

The “at-will” status of Florida employees means “general” workplace harassment and discrimination claims can be difficult to advance under the law. However, workplace harassment and discrimination are actionable if such conduct is based on an employee’s “protected category.” The law prohibits harassment, discrimination and retaliation based on the protected categories of race, sex/gender identity, national origin, religion, age, disability, pregnancy, military, and genetic information status. This means that if workplace harassment or discrimination is due to any of the above, or any other protected category, the employer will be subject to a Charge of Discrimination at the EEOC/federal level, or at the FCHR/state level.

Additionally, a “hostile work environment” claim can also be made in addition to a discrimination and harassment claim.  Federal and state laws make it unlawful for an employer to subject an employee to a hostile work environment based on their membership in any protected classes. Further, an employee who makes a claim of harassment or discrimination cannot be retaliated against for making such complaints in good faith, even if the employer disagrees that any harassment or discrimination actually occurred.

How Rosenberg Law Can Help Floridians with Employment Issues

Whether you are an employee or employer seeking solutions regarding wage and hour law, discrimination, harassment, retaliation, employee misclassification, workplace safety, contracts, offer letters, handbooks and manuals, training, or policies and procedures, Rosenberg Law, P.A. can help.

Our Florida labor and employment lawyers have years of experience helping employers and employees alike find equitable solutions. Let Rosenberg Law, P.A help you with your Florida labor and employment issues, so you can rest easy. Contact us today!