Basics of At-Will Employment
The majority of employees in Florida are employed "at-will." At-will employment means that the employee and employer are not legally obligated to continue the relationship. In the employment context, this means that absent an employment contract, an employer may terminate an employee at any time, for any reason or no reason, and vice versa.
Although there is a long-held presumption of at-will employment in Florida, there are exceptions. Exceptions arise in employment contracts.
Employment contracts that contain specific language regarding termination may negate the presumption of employment-at-will. Additionally, specific disciplinary policies, procedures or guidelines expressed in an employee handbook or other policies related to employee discipline or discharge may also modify the employment-at-will relationship between employees and employers .
There are also exceptions that arise by statute, including terminations based on discrimination, whistle-blowing activities or employment contrary to public policy. Florida’s laws prohibit discrimination based on an employee’s race, color, sex, national origin, age, disability, marital status, pregnancy or religion.
Florida law also prohibits retaliatory termination based on union membership or activities, protection or enforcement of civil rights, certain types of legislation, right to re-employment after military duty, jury service, suspension from driving and certain public employee disclosures.
Protected Classes and Unlawful Discrimination
Protected Classes, Discrimination, and Wrongful Termination
Florida law prohibits discrimination based on characteristics such as race, gender, age, sexual orientation, disability status, ethnicity, and other categories. A "protected class" is a group of people that share one of these characteristics and for whom protections against discrimination or harassment is given by state or federal laws, such as the Fair Labor Standards Act (FLSA), Age Discrimination Employment Act (ADEA), Civil Rights Act of 1866, as amended in 42 U.S.C. §1981, Title VII of the Civil Rights Act of 1964, Americans With Disabilities Act of 1990, Equal Pay Act of 1963, Family Medical Leave Act (FMLA), Office of Federal Contract Compliance Programs (OFCCP), The Occupational Safety and Health Act of 1970 (OSHA), Title I of the Genetic Information Nondiscrimination Act of 2008, and Florida’s many discrimination laws. These laws prevent discrimination in the workplace by regulating who can be considered for employment, what types of questions can be asked, who can be terminated and even how an employee can be punished or rewarded. Some of Florida’s protected classes are: Age 40 and over; gender; race; religion; national origin (ethnic background); color; disability; marital status; effect of AIDS / HIV positive; and sexual orientation (gender identity, such as transgender or intersex).
Discrimination encompasses any acts taken by an employer or others under the employer’s direct control that may unfairly target employees for dismissal, demotion, or other punitive actions based on traits related to a protected class. Termination in connection with a protected class is sometimes referred to as "wrongful termination." For example, it may be considered wrongful termination for a company to fire an employee because of his or her age, if fired before age 40.
Notice and Severance Requirements
In general, there are no mandatory notice requirements or severance requirements under Florida law. Unlike the federal Worker Adjustment and Retraining Notification Act (the "WARN Act"), the Florida Plant Closings and Layoff Notification Act (the "Florida WARN Act") does not include a requirement to provide notice of termination to employees. However, employers with facilities in more than one location may need to consider the federal WARN Act if the threshold criteria are met.
The WARN Act requires employers to provide 60 days’ notice to any affected employee in the event of a plant closing, mass layoff, or major relocation which results in employment loss at a single site of employment of at least 50 employees. Note that while the federal WARN Act has 60-day notice requirements and requires notification to both employees and the state, Florida does not have such requirements. Therefore, the Florida WARN Act is simply a state-specific statute which is not triggered unless the federal WARN Act is also triggered.
In the event that an employer may potentially be subject to a notice requirement under the federal WARN Act, it would also need to consider what its collective bargaining agreements, employment agreements, personnel policies, employee handbooks state regarding required notice or severance pay, if any.
Wrongful Discharge Claims
Despite the general presumption of at-will employment, which allows either an employee or employee to end the relationship at any time for any reason, there are limits. The theory behind at-will employment is that if someone works for an employer, the employment relationship isn’t contractual, it’s purely voluntary. When employers act improperly in terminating employees, the courts have been willing to balance this policy against fairness to employees who’ve been terminated. There are generally three elements to a wrongful termination claim in Florida. They are:
Title VII of the 1964 Civil Rights Act prohibits discrimination based on race, color, religion, sex, and national origin. Federal laws (Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Fair Labor Standards Act, for example) prohibit employers from taking adverse employment actions based on a protected characteristic . Adverse employment actions include decisions relating to hiring, promotion, demotion, termination, pay, job assignments, and various other "tangible" changes in the terms and conditions of employment.
Florida law prohibits employers from terminating an employee’s employment for his or her refusal to violate the law. The retaliatory termination of a whistleblower for reporting alleged criminal activity is expressly prohibited under Fla. Stat. § 448.102. An employee is also protected under Fla. Stat. § 760.11 if he or she refuses to participate in or perform criminal activity.
Florida is one of those states where you can be terminated for any reason – or, in many cases, no reason at all. Of course, a wrongful termination claim may be brought in the event that the termination was based on a protected characteristic such as age, sex, race, religion, disability, or some other possibly unlawful reason. A fired employee may also initiate legal action if the decision to fire him or her violates a law or statute, or if the employee has an employment contract specifying reasons for termination.
Rights After Termination
Even though the employment-at-will doctrine gives employers the right to terminate employment without fears of retaliation from the employee, this does not mean the employee is without rights. The first thing most employees want to know after termination is whether they will receive unemployment compensation. Florida’s unemployment compensation applies to employees that lose their job through no fault of their own. Another right of termination that many do not know of deals with employment records. Employees have the right to request copies of their employment records, including evaluations, substantiated complaints against them, and any other record names of persons involved in the evaluation or analysis of conduct with respect to the employee. An employer must comply with this request until the employee has been given a written determination by an impartial panel that an error was made in the termination of the employee and the employee is eligible for employment or ninety (90) days from the date of termination.
Steps to Follow if You’re Wrongfully Fired
However the situation may have arisen, those who suspect they may have been the victims of wrongful termination are advised to take prompt action. Essentially, the terminated employee needs to quickly gather and retain all written communications from the employer , including any documentation regarding the employment contract, pay stubs, bills documenting any out of state travel, etc. They also need to review the nature of the employment contract or initial agreement, and detail any instances of employment discrimination to their attorney who will advise them on potential next steps.