Employment Law

The employer – employee relationship is dynamic. In any relationship, there are problems, misunderstandings and disputes which can lead to legal problems. The relationship begins before a person is hired. It starts with the job application process.

Think of the relationship as a basket of rights and duties through a “contract” between the two parties (the boss & you). Many of the terms and conditions of the contract are implied by federal and State of Florida statutes (laws) and through many centuries of court interpretations (which is known as the common law). In Florida, the law allow for employment “at will”. This means that the employer is able to terminate an employee for any reason, as long as the reason is not an illegal reason.

Employment-at-Will

Beginning in the 1980s, employment-at-will came under challenge in some states. Employees had grown increasingly dissatisfied with the rule for a variety of reasons. For one thing, a decline in the number of self-employed individuals meant that most persons worked for someone else. For another, a typical worker who was discharged currently lost more than in the past in terms of pensions, medical insurance, and other fringe benefits.

As a result, a greater number of discharged workers brought suits alleging wrongful discharge from employment.  In some successful cases, the courts have created exceptions to the employment-at-will practice. These exceptions have fallen into three broad categories: breach of contract by the employer, breach of an implied covenant of good faith and fair dealing, and violation of public policy by the employer. Employers as well as law makers have responded in a variety of ways to this push back.

Minimum Wage

One of the most common employment laws incorporated into the fabric of our society is the minimum wage law. The minimum wage is the lowest wage an employee can be paid and is determined by the forces of supply and demand in a free market. This acts as a price floor.

Wage & Hours

Another common employment law concerns working time. This governs the amount of time an adult as well as a child is allowed to work.

The Wages and Hours Act of 1938 set the maximum standard work week to 44 hours and in 1950, this was reduced to 40 hours. Despite this law, there are some jobs that require more than 40 hours to complete the tasks of the job. For example, if you are a farm worker, you can work over 72 hours a week, if you want to. However, you cannot be required to do so.

The federal Fair Labor Standards Act regulates the treatment of hours worked. There are specific recordkeeping duties to insure that hourly paid employees receive the proper calculation of time worked and that the employee is paid overtime properly. Also, employers must classify employees correctly as to being “on salary” to be paid a flat income amount regardless of time worked. On the other hand, hourly paid employees must be paid for each & every hour worked.

Working Terms & Conditions

There are many laws protecting the employer – employee relationship. Worker misclassification is the number one issue for small businesses. This problem is triggered by person running out of work & applying for Unemployment Compensation. The state Unemployment Compensation application process can lead to uncovering misclassification as a non-employee. Federal or state agency review shows a lack of taxes paid by the employer.  This can be due to the employer making a person an independent contractor or making a person an unpaid intern. Also, if an employer makes a person a volunteer in a for-profit company, this can create serious violations of either or both federal labor laws and state labor laws.

Non-compete Agreements

Non-compete agreements can arise in a variety of circumstances. Typical scenarios are an employment relationships, stockholder agreements and in a business sale. The enforceability of the non-compete provision will depend on a variety of circumstances, particularly the state in which the restriction is to be enforced. Some states favor non-competes, others do not.

With certain exceptions, Florida law prohibits restraints on trade. One of the exceptions is a non-compete agreement (executed in 1996 or later) that meets the requirements of Florida law as provided for specifically in the statute. These requirements can be summarized as three provisions: The non-compete must be reasonable in time, area, and line of business.  Legitimate business interests must exist that justify the restrictive covenant. And, the non-compete must be reasonably necessary to protect the legitimate business interests.

These provisions are best interpreted by a skilled attorney. The ALG Law Group can review with you  how a court would likely analyze enforcement of the agreement.

Fair Employment Practices & Discrimination

There are many laws, at both federal & state levels, covering employer treatment of all applicants and employees in a fair way. These laws are complex. Some of the major laws deal with gender equality, regulations about medical leave of absences (with or without pay), age discrimination, sexual harassment, and claims involving sexual orientation and ethnicity.

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