Employment/Wrongful Termination

INTRODUCTION

Many employees who have moved to Florida from other states are often surprised that
Florida does not afford quite as many protections for employees in the workplace as in
their former states. In fact, Florida is among the few remaining states that adhere to the
"employment at will" doctrine.

EMPLOYMENT AT WILL DOCTRINE

The "employment at will" doctrine basically states that the relationship between the
employer and the employee may be terminated by either party at any time for good
reason, bad reason or even no reason at all, with certain few exceptions. Many employees
feel that employers should be held liable for terminations that are in violation of their
own policies. However, employment policies, employment handbooks or personnel
manuals are not considered to be binding contracts in Florida, and therefore are not
enforceable. Thus, an employee who believes he or she has been wrongly terminated
generally may not sue the employer for breach of contract unless there exists a written
agreement between the employer and the employee as to the terms, conditions, and
duration of employment.

PROHIBITIONS AGAINST DISCRIMINATION

As there is no real common law cause of action for wrongful termination in Florida, a
terminated employee must usually be able to show that his or her termination would be
actionable under one or more of the exceptions to the "employment at will" doctrine. In
Florida, those exceptions generally have been created by statute. Many of these statutes
provide remedies for an employee who has been terminated in violation of the law, such
as the right to file an action against the employer in civil court, and to seek damages, such
as back pay, reinstatement, compensatory damages for emotional distress, and even
punitive damages in the case of willful violations.

As most people are aware by now, there are laws which make it illegal to discriminate
against an employee in the workplace based on certain protected categories. In Florida,
an employer may not discriminate against an employee on the basis of the employee's
race, color, sex, religion, national origin, age, disability, political affiliation, and marital
status. The federal and state anti-discrimination laws prohibit discrimination based on the
above categories in any term, condition or privilege of employment, including pay rate,
promotions, and hiring and firing, to name a few. It should be noted that the federal and
state anti-discrimination statutes apply only to employers with 15 or more employees.
However, Dade County has enacted an anti-discrimination ordinance which applies to
employers with 5 or more employees.

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Florida also has laws making it illegal to discriminate against an employee who has or is
perceived as having AIDS or any AIDS related complexes. As such, employers may not
require employees or job applicants to take an AIDS test as a condition of hiring or
continued employment, with the exception of certain jobs in which there is a bona fide
occupational qualification that the employee be disease-free. It is important to note that
the laws prohibiting AIDS discrimination apply to all Florida employers, regardless of
how many employees they have.

Employees may also have certain protections based on other disabilities or medical
conditions. An employer may not discriminate against an employee because she is
pregnant. If an employer offers time off for medical leave, the pregnant employee must
be allowed at least as much time as the employer normally offers for medical leave. In
addition, there is a federal law known as the Family and Medical Leave Act of 1993, that
provides up to 90 days of unpaid medical leave where an employee or some one in their
immediate family has a serious medical condition which requires that the employee be
given time off from work. Anyone who feels their termination was in violation of the
Family and Medical Leave Act should be aware that the Act only applies to employers
with 50 or more employees within a 75 mile radius of the workplace, and that other
restrictions and requirements apply. However, affected employers are required to keep
notices posted regarding the Family and Medical Leave Act requirements, and employees
seeking information about the Act should contact their employer's Human Resources or
personnel office.

TIME LIMITS AND ADMINISTRATIVE REQUIREMENTS

The anti-discrimination laws, like most laws creating remedies for wronged employees,
impose statutes of limitation, which require that any claims be filed within a specific time
period. In Florida, a person wishing to file a claim of discrimination must first file a
charge of discrimination with the appropriate administrative agency within the specified
time period.

Most claims of discrimination are brought under the federal anti-discrimination law
known as Title VII of the Civil Rights Act of 1964. Title VII requires that any charge of
discrimination be filed with the Equal Employment Opportunity Commission (EEOC)
within 300 days of the date of discrimination.

The Florida anti-discrimination law, which is known as the Florida Civil Rights Act of
1992, provides slightly more time within which to file a charge. Under the Florida Civil
Rights Act, a charge of discrimination must be filed with the Florida Commission on
Human Relations (FCHR) within 365 days of the date of discrimination.

PROHIBITIONS AGAINST RETALIATION

The anti-discrimination laws also prohibit retaliation against any employees for opposing
illegal discriminatory practices or participating in another employee's charge of
discrimination. An employee who was fired in retaliation for complaining about or
actively opposing illegal discrimination has the same rights as an employee who was

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subjected to illegal discrimination. Thus, a person wishing to bring a claim of retaliation
under one or more of the anti-discrimination laws must meet the same administrative
requirements as a person bringing a claim of discrimination under those laws.

In addition, Florida has passed other anti-retaliation laws designed to prohibit actions
taken against an employee on the basis of that employee's exercise of legal rights. For
example, it is unlawful for an employer to intimidate, coerce or retaliate against an
employee because that employee has made a valid claim for workers compensation
benefits, or even because that employee has attempted to claim workers compensation
benefits.

It is also unlawful for an employer to take retaliatory action against an employee because
that employee has "blown the whistle" on his or her employer. These "whistle-blower"
laws apply to government employees and private sector employees as well. They are
intended to provide remedies for employees who have suffered retaliation because they
have refused to participate in any illegal policy, practice, or activity of the employer, or
because the employee has disclosed or threatened to disclose the employer's illegal
policy, practice or activity to the authorities. These laws generally provide that it is illegal
to retaliate against an employee who testifies or participates in an investigation or
proceeding concerning any violation of law by the employer.

Finally, employers in Florida are also prohibited from terminating an employee because
that employee was performing a legal duty, e.g., jury duty. There are also federal and
state laws regarding employees' right to unionize, as well as rights regarding pension
benefits, safety in the workplace, and other issues.

CONCLUSION

Remember, the best way to avoid having to make a claim for wrongful termination is to
keep your job. An employer is always entitled to terminate an employee for just cause,
and therefore, the best way to avoid being terminated is to do your job the best you can,
and always keep the employer's interests in mind.

The federal government now maintains a website with small business and worker's
employment information at: ELAWS - Employment Laws Assistance for Workers and
Small Businesses.

The EEOC (Equal Employment Opportunity Commission) maintains a district office in

Miami. Its telephone number is (305) 536-4491. The FCHR (Florida Commission on
Human Relations) is located in Tallahassee. The FCHR can be reached at (904) 488-
7082, or 1-800-342-8170.

Used with permission and created by Joseph R. Fazio, III, Esq., Fazio, Dawson,
DiSalvo, Cannon, Abers Podrecca, & Fazio, Fort Lauderdale, FL Areas of practice
include: employment discrimination, labor law, and employment law