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1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

There are no specialized labour courts in Florida. Employment disputes are resolved in the federal courts (United States District Courts), the Florida state courts (most often in the “circuit court”), in administrative proceedings before federal or state agencies (United States Equal Employment Opportunity Commission; Florida Commission on Human Relations) or in private dispute resolution proceedings (arbitration and/or mediation) agreed to by the employer and employees or by the employer and a labour union. The rules of procedures for resolving such disputes, and the applicable laws, vary from forum to forum.


The Main Sources Of Employment Law

Florida “employment law” arises from federal and Florida statutes and from common law principles. Federal and Florida statutes not only prohibit discrimination (including harassment) and retaliation (taking action against a person who complained of discrimination) against job applicants and employees but also establish requirements for wages and wage payments, workplace safety and health, unemployment and workers compensation, and labour-management relations. Federal and Florida common law principles of contract law also impact the employment relationship, particularly with non-competition/restrictive covenants, confidentiality/trade secrets and non-solicitation agreements.


National Law And Employees Working For Foreign Companies

The laws of the United States and the State of Florida generally apply to persons working in Florida.


National Law And Employees Of National Companies Working In Another Jurisdiction

Various federal laws (including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the American with Disabilities Act) apply to American citizens working in foreign jurisdictions for United States companies. Florida law applies when the employee is physically working in Florida or when the parties have agreed in writing to the application of the laws of Florida.


Data privacy

There is no comprehensive federal law that governs data privacy in the United States. There is no Florida data privacy law specifically directed at the employee – employer relationship. The Florida Information Protection Act of 2014 protects an individual’s personal information by ensuring that businesses take reasonable measures to protect personal information and report data breaches to affected consumers.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

There is no legal requirement in Florida that the terms and conditions of the employment relationship be set out in writing. However, any such agreement is subject to the usual non-discrimination and non-retaliation statutes and to common law contract principles and, to a lesser extent, particular statutory requirements as to certain types of agreements. For example, the scope and duration of “non-competition” agreements is limited by a specific Florida statute.


Mandatory Requirements
  • Trial Period

    • There is no legal obligation for employers to provide a “trial period” for new employees. However, many employers do have 60 - or 90-day probationary periods for new workers, but such employers ensure that the policies providing for any such probationary period do not impair any “at will” employment relationships (discussed under “Types of Agreement” below).

  • Hours Of Work

    • There is no limitation on the days or times of work, or on the weekly hours of work, for adult employees (workers over 18 years of age). However, federal law requires that overtime wages must be paid at 1.5 times the employee’s regular rate (as defined in the law) to certain employees who work more than 40 hours per week. Federal and Florida “child labour” laws restrict the work days and work hours for employees who are not 18 years of age (and those laws also restrict the tasks that minors can be given by limiting their involvement in dangerous duties).

  • Special Rules For Part-time Work

    • There are no special rules in Florida related to part time work. Employers may schedule an employee as needed for work.

  • Earnings

    • Certain employees are entitled to a minimum wage ($8.65 per hour in Florida as of January 1, 2021, which will increase to $10.00 per hour on September 1, 2021) that is subject to change annually (usually 1 January each year). Further, the federal Fair Labor Standards Act requires that overtime be paid at 1.5 times the employee’s regular rate (as defined in the law) to certain employees who work more than 40 hours per week and, further, that certain employees “exempt” from overtime wages (such as certain executives, administrators and professionals) be paid salaries of at least $684 per week. There are particular requirements for employees who regularly receive gratuities (“tips”).

  • Holidays/Rest Periods

    • There are no federal or Florida law requirements for employers to provide paid holiday or rest periods for adults. Federal and Florida “child labour” laws limit working hours and require certain rest periods for employees who are not 18 years old.

  • Minimum/Maximum Age

    • Federal and Florida laws prohibit employers from employing minors (persons under 18 years of age) in certain dangerous jobs, prohibit minors from working on certain days and at certain hours, and limit the total number of weekly hours they may work. There is no maximum age for employment. Employers generally cannot discriminate against employees because of age and, other than in rare circumstances involving very senior and highly compensated executives, employers cannot discharge employees because they have reached a specific age (that is, mandatory retirement at a specified age is almost always illegal).

  • Illness/Disability

    • Federal and Florida laws prohibit discrimination against qualified persons with disabilities and require that, under certain circumstances, employers make “reasonable accommodation” for such disabilities in order to allow the disabled employees to perform the essential functions of their jobs. The federal Family and Medical Leave Act requires that larger employers (those having more than 50 names on the payroll) provide eligible employees with up to 12 weeks of unpaid job-protected leave to care for their own serious health conditions, to care for a spouse, child or parent with a serious health condition or for the birth or placement of a child with the employee or arising from the employee’s (or certain family members’) military service. Certain unpaid leaves to care for family members injured in military service may be up to 26 weeks.

  • Location Of Work/Mobility

    • There are no federal or Florida laws limiting the employer’s or employees’ locations of work or the mobility of employees. Employees may be freely transferred to a different work location and can be required to travel as part of their jobs. However, federal and Florida laws require that employers provide work areas for employee free from recognized safety and health hazards and federal law requires that, under certain circumstances, certain employees must be paid for their travel times.

  • Pension Plans

    • There is no requirement that employers have pension plans but, if there is a plan, it is very likely to be governed by federal laws and regulations regarding employee eligibility, plan funding, use and distribution of plan assets, etc.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Federal and Florida laws prohibit discrimination based on pregnancy. The federal Family and Medical Leave Act law requires that certain employees of larger employers be given up to 12 weeks unpaid leave in conjunction with the birth of a child or adoption/foster placement of a child with that employee.

    The leave for birth or placement of a child is available both to male and female employees (that is, “paternity” leaves for male employees can be required under the same circumstances as maternity leaves).

  • Compulsory Terms

    • Employment agreements are not required. There are no compulsory terms that must be included in an employment agreement if one should be prepared.

  • Non-Compulsory Terms

    • Employers and employees are free to agree to any terms of employment provided that such terms are consistent with the applicable federal and Florida statutes (e.g., the parties cannot agree to discriminate based on sex/age/etc., cannot agree to pay wages below any minimums required by law, cannot agree to non-competition provisions that otherwise would violate the applicable Florida statute, etc.).


Types Of Agreement

Employment relationships in Florida are presumed to be for an indefinite term and thus to be “at will,” meaning that the employment relationship can be ended at any time by either party for any reason with or without notice. However, the parties by contract may agree to a definite term of employment and, thus, make the employment not “at will”; most employers prefer “at will” relationships.


Secrecy/Confidentiality

The Federal Defend Trade Secrets Act, Florida’s trade secret statute and the state’s common law limit an employee’s ability to divulge confidential non-public employer information. Employers and employees may also agree by contract to additional restraints on the use of and disclosures of such information or to waive the statutory limitations.


Ownership of Inventions/Other Intellectual Property (IP) Rights

Employers normally own any work created by the employee during the employment or created using the employer’s information, equipment or materials. Federal statutes also protect the ownership and use of such intellectual property.


Hiring Non-Nationals

There are detailed federal requirements for the employment of non-United States citizens (as discussed in more detail in the “USA-Federal” section, above). Employers must ensure that, at the time of hire, such persons are eligible to work in the United States. The requirements for hiring aliens may be different (and much more complex) depending on the alien’s work status, the nature of the employer’s business (whether it is a contractor or subcontractor to the United States Government), and the duration and nature of the potential employment.

 

Hiring Specified Categories Of Individuals

Federal and Florida “child labour” laws limit the duties, work days, and work hours of employees who are less than 18 years old. Federal and Florida laws also prohibit discrimination against job applicants because of race, sex, color, national origin/ethnicity, age, disability, etc. Florida law also generally prohibits discrimination based on marital status (that is, whether the applicant/employee is married, single, divorced, etc.). Federal law imposes requirements on an employer’s hiring of non- United States citizens. Finally, certain employers who contract (or subcontract) to the federal government are subject to “affirmative action” obligations with respect to minorities and military veterans.


Pre-Employment Considerations

N/A


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

There are no statutory restraints on outsourcing and/or sub-contracting or temporary agency work. Subcontractors, outsourced workers and temporary employees are not on the employer’s payroll and thus are not entitled to benefits and protections that must be given to “employees”; employers can be subject to substantial liability if it is determined that true employees were characterized as “subcontractors” in an employer attempt to avoid providing required benefits/protections. Depending on the level of control the employer has over a temporary employee, the temporary agency and the employer may be found to be “joint employers” of the temporary employee. However, limitations on outsourcing/use of subcontractors or temporary employees may be contained in a collective bargaining agreement specifically negotiated between the employer and a labour union (a relationship governed by federal law and discussed in “USA-Federal,” above).

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

If the employment is “at will,” the employer is free to change an employee’s terms and conditions of employment at any time for any non-discriminatory, non-retaliatory reason. If the employment relationship is not “at will” (that is, the parties have agreed to employment for a definite duration), or if the parties have contracted for specific compensation/benefits, the employer’s ability to change the relationship will depend on the terms of the parties’ agreement.


Change In Ownership Of The Business

If there is a change in ownership with a “stock sale,” employees are presumed to continue in their employment relationship with the new owners on the same terms and conditions. If the change in ownership is the result of an “asset sale,” it may be necessary to obtain the employees’ agreement to the transfer of any employment contracts. In the absence of any agreements with individual employees or binding company policies to the contrary, there is no additional compensation (such as severance pay) owed to workers in conjunction with a change in the ownership of the business. However, a collective bargaining agreement with a labour union may require negotiations with the union about the effects of the transaction and that agreement may require certain sums to be paid to affected workers.


Social Security Contributions

Employers are required by federal law to contribute to the federal social security trust fund for employees. Employers are not required to provide paid “sick days” to employees (although it is a common practice in Florida) but the federal Family and Medical Leave Act requires that larger employers provide certain job protections (including job-protected unpaid leaves of absence) and other benefits to qualified workers in conjunction with their serious illnesses or the serious illnesses or military service of family members. Further, Florida law requires employers to provide workers’ compensation benefits for employees injured on the job (and prohibits retaliation against employees seeking such benefits).


Accidents At Work

Federal law requires employers to report certain workplace accidents to the federal Occupational Safety and Health Administration. Florida’s workers’ compensation statute requires most employers to obtain insurance coverage for workplace injuries/ illnesses and, through that coverage, to provide benefits to workers injured on the job.


Discipline And Grievance

There are no general statutory requirements concerning discipline of employees or their assertion of grievances. However, employers cannot consider an employee’s protected characteristics (race, sex, age, pregnancy, marital status, etc.) in making discipline decisions nor can they retaliate against employees who assert their rights under any of the applicable employment statutes or who complain about suspected employer misconduct or violations of law. Employers must comply with the procedural requirements of any collective bargaining agreement with a labour union. Although many employers have an “open door” policy allowing employees to assert grievances, or have internal complaint procedures, a grievance mechanism is typically only required under a collective bargaining agreement.


Harassment/Discrimination/Equal pay

Harassment and discrimination arising from an employee’s protected characteristics (race, sex, color, national origin, pregnancy, age, disability, etc.) is prohibited by federal and Florida laws. The discrimination laws apply to every aspect of the employment relationship (i.e., job application/hiring, wages, benefits, working conditions, etc.). Further, employers cannot retaliate against employees who complain about suspected discrimination, harassment or employer violations of law. In addition, certain contractors and subcontractors to the United States Government have affirmative action obligations with respect to minorities and military veterans (including requirements that the employer/contractor collect and maintain specific data about job applicants, hirings, promotions, etc.). Florida law also generally prohibits discrimination based on marital status (that is, whether the applicant/employee is married, single, divorced, etc.). Federal and Florida equal pay laws require that men and women be paid the same wages for work requiring equal skill, effort, responsibility and performed under similar working conditions. There are local laws in certain Florida counties which protect individuals from discrimination based on additional protected categories such as sexual orientation.


Compulsory Training Obligations

There are no general compulsory training obligations required by statute. However, the federal Occupational Safety and Health Administration requires that employees working in certain dangerous jobs or performing hazardous tasks be given training in the safe, healthful performance of those jobs/tasks.


Offsetting Earnings

Federal law generally permits an employer, with an employee’s actual or implied consent, to offset earnings against debts to the employer unless the offset reduces an employee’s net weekly wage below any mandatory minimum wage. Florida’s wage garnishment statute requires that, under certain conditions, employers withhold a portion of employees’ wages and pay them to the employees’ creditors.


Payments For Maternity And Disability Leave

The federal Family and Medical Leave Act (discussed in “USA-Federal, above) requires larger employers to provide job-protected but unpaid maternity, disability and child care leave to qualified employees. Florida employers customarily provide some paid sick leave for workers (though such payments are not required). The Florida workers’ compensation law provides specified benefits for covered employees injured on the job.


Compulsory Insurance

Florida law requires most employers to have workers compensation insurance to benefit employees injured on the job. Florida also requires employers to make contributions to the state’s unemployment compensation system to fund employment compensation benefits to unemployed former employees.


Absence For Military Or Public Service Duties

Federal law requires employers to provide unpaid leave to employees called for military duty and to reinstate those workers to their prior positions when they return from military service. Federal law also requires that unpaid leave be given to certain employees who are related to persons called for active military duty or who have returned from such duty but require care/assistance. There are no statutory requirements for absences in connection with other “public services.” Florida law requires that employers having more than 50 employees also must provide 3 days’ unpaid leave for employees subject to domestic violence (and, in certain cases, to employees whose family members are subject to domestic violence). There are local laws in certain Florida counties requiring additional domestic violence leave. Federal and Florida disability discrimination laws also may require unpaid leaves of absence as a “reasonable accommodation” for disabled employees.


Works Councils or Trade Unions

There is extensive regulation of collective bargaining rights and the relationship between labour unions and employers (discussed in “USA-Federal,” above).


Employees’ Right To Strike

Employees in the private sector have the right to strike. Their collective bargaining rights and strikes are discussed in “USA-Federal,” above.


Employees On Strike

Private sector employees on strike may be replaced under certain circumstances. Their strike rights are discussed in “USA-Federal,” above.


Employers’ Responsibility For Actions Of Their Employees

Employers are generally responsible for the actions of their employees unless the worker is acting outside the course and scope of employment.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

There are no statutorily required procedures for dismissing employees. However, a collective bargaining agreement with a labour union may impose requirements on employers and, of course, employers must follow any termination procedure in any employment agreements with individual employees. Any procedures used to dismiss employees must be applied in a non-discriminatory and nonretaliatory manner. An employee’s complaint about suspected employer misconduct (such as discrimination or harassment) cannot be a factor in the dismissal decision or in the protocol used for discharging workers.


Instant Dismissal

Unless there is a collective bargaining agreement with a labour union, or a “notice” requirement promised by the employer’s policies or contained in an agreement with an employee, there is no advance notice required for dismissal of individual employees. Florida law allows persons employed for an indefinite term (that is, “at will” employees) to be discharged at any time without prior notice for any non-discriminatory, non- retaliatory reason. Any employment contract with an employee for a definite term of employment may limit the employer’s right to “instant dismissal” if the parties have agreed to such limitation. However, federal law provides that employers having more than 100 employees (the “WARN” law, discussed in “USA-Federal, above) have to provide certain affected employees with sixty days’ notice of certain “plant closures” and “mass layoffs” as defined in that law.


Employee's Resignation

Unless there is a collective bargaining agreement with a labour union, employees are not required to provide advance notice of resignation. Florida law allows employees employed for an indefinite term (that is, “at will” employees) to resign at any time for any reason with or without prior notice. However, an employment contract with an employee for a definite term of employment may limit the employee’s right to resign.


Termination On Notice

Unless there is a collective bargaining agreement with a labour union, there is no advance notice required for dismissal of an individual employee. However, federal law (the “WARN” statute, discussed in “USA-Federal, above) requires that employers having more than 100 employees give sixty days’ notice (or sixty days’ wages) to workers affected by certain “plant closures” or “mass layoffs” (as defined in the WARN law).


Termination By Reason Of The Employee's Age

Federal and Florida law prohibits the dismissal of an employee because of age except in very limited and unusual circumstances involving highly-compensated and very senior executives, that is, mandatory retirement based on age is almost always illegal.


Automatic Termination In Cases Of Force Majeure

Employment relationships may be terminated automatically in cases of force majeure unless otherwise restricted by a specific contract with the individual employee or by a collective bargaining agreement between the employer and a labour union (which relationship is governed by federal law).


Collective Dismissals

Larger companies (with more than 100 employees) may have to comply with the federal plant closures and mass layoff statute (the “WARN” statute, discussed in “USA-Federal, above) in conjunction with reductions-in-force of personnel in “plant closures” or “mass layoffs” (as defined in the WARN law).


Termination By Parties’ Agreement

Florida law allows persons employed “at will” (that is, for an indefinite term of employment) to be discharged or to resign, without notice, at any time for any non-discriminatory and non-retaliatory reason and, in such circumstances, the employer or the employee need not justify the reason for the separation. Employers and employees may agree by contract to certain terms and conditions which will trigger a termination of the relationship.


Directors Or Other Senior Officers

There are no special requirements regarding the termination of a director or other senior officer’s employment (but certain notices may have to be provided to the federal government in conjunction with the termination of such persons by public companies).


Special Rules For Categories Of Employee

There are no special rules for discharging categories of employees but, of course, an employee cannot be discharged because of his/her protected characteristics (race, sex, age, disability, pregnancy, marital status, etc.) or because the employee has complained about suspected employer misconduct (including discrimination or harassment) or suspected employer violation of law. A collective bargaining agreement with a labour union may require special consideration of certain employees (typically employees with long tenure) as provided by the agreement.


Whistleblower Laws

Florida’s whistleblower law prohibits adverse employment action against an employee because (a) he/she has disclosed or threatened to disclose to a government agency any suspected employer conduct that violates a law or (b) he/she gave information to or testified in a government investigation of the employer or (c) he/she objected to or refused to participate in any employer activity, policy or practice which violates a law. Whistleblowing employees subjected to retaliation by the employer may sue for compensatory damages (such as loss of wages) and attorneys’ fees.


Specific Rules For Companies in Financial Difficulties

There are no special requirements for discharging employees applicable to companies in financial difficulties. However, larger companies (with more than 100 employees) may have to comply with the federal plant closures and mass layoff statute (the “WARN” statute, discussed in “USA-Federal, above) in conjunction with reductions-in-force of personnel in “plant closures” or “mass layoffs” (as defined in the WARN law).


Special Rules For Garden Leave

Garden leave is not required by federal or Florida law. The parties may agree to garden leave in an employment contract.


Restricting Future Activities

Florida allows employers to require employees to sign non-competition agreements limiting their post-employment activities, including employment by a competitor, use/dissemination of confidential information, and non-solicitation of customers or co-workers. A Florida statute requires that such “non-competition” agreements be reasonable in both scope and duration. Employees can be required to enter into such an agreement before or during the employment (and, if the applicant/ employee refuses to sign, the job can be denied or the worker discharged). If a non- competition agreement is sought at the end of employment, the employer will have to compensate the employee for it (though not necessarily for the period of non-competition) and, even then, the departing employee cannot be required to sign.


Severance Payments

Severance payments are not required by federal or Florida law although they are customary in many industries and in many companies. Of course, if severance payments are offered, they must be provided in a non-discriminatory and non- retaliatory manner. Employers often require that the employee sign a waiver of claims against the employer as a condition of receiving the severance.


Special Tax Provisions And Severance Payments

Severance pay is usually taxed as ordinary income (wages) of the employee and may be treated as a business expense by the employer.


Allowances Payable To Employees After Termination

Florida employers are required to contribute to an unemployment compensation trust fund. Discharged employees may seek benefits from that fund through Florida’s Department of Economic Opportunity.


Time Limits For Claims Following Termination

Federal and Florida laws provides their own specific deadlines for the assertion of employment-related claims. The federal deadline for discrimination and retaliation claims is 300 days; the Florida deadline for such claims is 365 days. Employees are allowed two years (and, under certain circumstances, three years) to assert claims for unpaid minimum/overtime wages under federal law and for the denial of leaves required by law. Various other applicable employment laws have individual statutes of limitations for the assertion of claims.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Florida employers who adopt a drug-free workplace program in compliance with the Florida’s workers’ compensation statute can qualify for special workers’ compensation insurance rates and for additional defenses to employees’ claims for workers compensation benefits.

Florida’s “guns at work” law permits employees lawfully in possession of a firearm to keep them locked in private vehicles on the employer’s parking lot. (The law does not require employers to permit workers to bring firearms into buildings.)

Florida’s Clean Air Act prohibits smoking in most enclosed indoor workplaces. Florida provides a presumption against “negligent hiring” to employers who carefully screen job applicants. In other words, an employer who properly screens an applicant (who later is hired) is entitled to a presumption, in any subsequent lawsuit arising out of the employee’s improper acts that injure co-workers, customers, or the general public that it acted prudently in deciding to hire that person.

Florida’s domestic violence leave law requires that certain employers provide up to three days of job-protected leave for workers who are subjected to domestic violence or who have family members subjected to such misconduct.



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Christine F. Gay
Holland & Knight LLP
United States


Disclaimer:

© 2021, Holland & Knight LLP. All rights reserved by Holland & Knight LLP as author and the owner of the copyright in this chapter. Holland & Knight LLP has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021