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Which issues would you most highlight to someone new to your state?
Nearly one-third of all federal wage and hour suits filed each year are filed in Florida. State law employment claims—including claims brought under the Florida Minimum Wage Act—are often tacked onto these suits. In light of the disproportionately high number of wage and hour suits filed in the state, employers doing business in Florida should be aware of their potential exposure and ensure that their pay practices meet both state and federal requirements.
What do you consider unique to those doing business in your state?
Employers doing business in Florida must account for the seasonal nature of many of the state’s industries and geographic regions, as this has a direct impact on employers’ business operations and workforce levels. Seasonal challenges can often lead employers to downsize or otherwise restructure their employees’ duties or hours, which in turn may create employment issues under a variety of state and federal laws.
Is there any general advice you would give in the labor/employment area?
Florida is an at-will state. As such, absent an employment contract, employees and employers can generally terminate the employment relationship for any reason, provided that the reason is not unlawful.
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
Employee privacy has recently emerged as a significant issue for employers. In July 2014 Florida introduced a more stringent data breach notification law that protects employees’ personal information and creates additional compliance concerns for employers (see Fla. Stat. § 501.171). Because the data breach notification law defines “personal information” broadly, virtually every employer possesses personal information on its employees. Employers now have an affirmative duty to safeguard this information and must follow a reporting framework should they experience a data breach.
Further, addressing cybersecurity issues and digital theft, Florida also passed the Computer Abuse and Data Recovery Act, effective October 2015 (Fla. Stat. §§ 668.801-805). The act provides employers with a new cause of action, which includes the right to attorneys’ fees, for aggrieved businesses that suffer harm from unauthorized computer access by an individual that does not have access or exceeds his or her access to the business’s computer systems. The act will have an impact on employee privacy and will allow employers a new cause of action to consider in certain trade secret and non-competition situations.
Proposals for reform
Are there any noteworthy proposals for reform in your state?
On November 4 2014 the Florida Right to Medical Marijuana Initiative was defeated, and did not gain the requisite 60% of the vote to pass (it gained 57.6% of the vote). The proposed amendment to Florida’s Constitution would have allowed for the creation of a medical marijuana program and made Florida the first southern state to legalize medical marijuana. Advocates for the amendment continued pursuing the issue and a medical marijuana expansion bill was passed by the Florida Legislature in March 2016. Once enacted, the bill will expand existing laws to provide patients with broader access to strains of marijuana. Advocates are continuing to pursue amendments that would legalize recreational marijuana use within the state.
What state-specific laws govern the employment relationship?
Chapters 435 through 452 and Chapter 760 of the Florida Statutes.
Who do these cover, including categories of workers?
Depending on the statute, these laws cover employees, contractors, licensees, interns, apprentices, and volunteers.
Are there state-specific rules regarding employee/contractor misclassification?
Yes. Section 440.02(d)(1)(a) of the Florida Statutes defines “independent contractor” and “employee.” There are tax, re-employment assistance, and workers’ compensation implications associated with the classification of individuals as employees or independent contractors. An employer can be penalized for misclassification under Florida Administrative Code Rule (69L-6.018).
There are also implications regarding unemployment compensation. Although not formally adopted, the Florida Supreme Court has applied the “employee test” in Section 220 of the Restatement (Second) of Agency to determine whether an employee-employer relationship exists (Cantor v. Cochran, 184 So. 2d 173 (Fla. 1966)).
Must an employment contract be in writing?
No, unless the term of employment will exceed one year.
Are any terms implied into employment contracts?
All contracts contain an implied covenant of good faith and fair dealing.
Are mandatory arbitration agreements enforceable?
Yes—normal contract principles apply. Employment itself suffices as consideration for an arbitration agreement; however, when ruling on a motion to compel arbitration, Florida courts apply the same analysis used under the Federal Arbitration Act.
How can employers make changes to existing employment agreements?
Basic contract principles govern modifications of at-will employment agreements. Employees must have notice of and accept modifications.
What are the requirements relating to advertising open positions?
Advertisements may not indicate a preference, limitation, specification, or discrimination on the basis of race, color, religion, sex (including pregnancy), national origin, age, absence of disability (including immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus), sickle-cell trait, or marital status.
Florida’s Civil Rights Act still uses the term “handicap.” This chapter uses “disability” because the terms are construed the same and the term “handicap” is disfavored in the disability rights community. Employers can limit access to an employment or training program based on age if a law or regulation restricts the program to a particular age group.
Further, employers may preclude applications based on marital status if they have an anti-nepotism policy. Finally, employers can restrict access to a position on the basis of religion, sex, national origin, age, absence of a particular disability, or marital status, as long as the basis for restriction is a bona fide occupational qualification reasonably necessary for the performance of the particular employment for which the restriction is imposed.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Florida state law does not prohibit private employers from inquiring into an applicant’s or employee’s criminal history, although many municipalities impose restrictions for public employers and, to a lesser extent, private employers. However, Florida’s Civil Rights Act recognizes disparate impact discrimination and is construed similarly to Title VII of the 1964 Civil Rights Act. Thus, to the extent that an employer’s criminal background screening raises disparate impact liability under Title VII, it could also do so under Florida law.
Employers that are required by a state agency to conduct background screenings must comply with Chapter 435 of the Florida Statutes, including:
- submitting the employee packet to the Department of Law Enforcement within five days of receipt; and
- making an annual report (or report on renewal of license or registration) to the agency, demonstrating compliance with Chapter 435.
(b) Medical history
Florida permits physical and medical exams of applicants and employees to determine fitness for a position. However, Florida prohibits screening or testing for the sickle-cell trait. It also prohibits requiring an HIV-related test, unless the absence of HIV is a bona fide occupational qualification. Testing for AIDS, AIDS-related complex, or HIV must a requirement for all applicants of a position, not just those with actual or perceived conditions.
(c) Drug screening
Florida does not prohibit applicant drug screening. Employers can be eligible for discounts on workers’ compensation premiums and employer liability insurance if they comply with the Florida Drug Free Workplace Act, which requires notice, education, and certain procedures prescribed by Florida’s Agency for Healthcare Administration.
(d) Credit checks
Florida has no restrictions on credit checks during the hiring process beyond those within the federal Fair Credit Reporting Act; however, as with criminal background screenings, use of credit checks in hiring decisions can potentially raise disparate impact claims under the Florida Civil Rights Act.
(e) Immigration status
Pursuant to an executive order, contractors with state agencies that are under the governor’s direction must use the Department of Homeland Security’s E-Verify system to verify employment eligibility of any employee hired during the contract term and must require their subcontractors to do the same. Agencies not under the governor’s direction are encouraged to impose the same requirements.
(f) Social media
Florida does not generally prohibit access to social media in evaluating candidates for hire, but the limitations on discrimination based on protected characteristics (e.g., race) apply with respect to information obtained via social media. Florida also recognizes the common law tort of invasion of privacy; thus, if a social media account is private and accessed without permission as part of the hiring process, it could raise invasion of privacy questions.
Pursuant to Florida statute, employers may not condition employment on whether a prospective employee possesses a concealed weapons permit or on an agreement by the prospective employee not to keep a legal firearm locked inside a private motor vehicle in a parking lot when such firearm is kept for lawful purposes.
Wage and hour
What are the main sources of wage and hour laws in your state?
Yes—Section 448.110 of the Florida Statutes (also known as the Florida Minimum Wage Act) and Article X, Section 24 of the Florida Constitution.
What is the minimum hourly wage?
As of January 1 2015, the Florida minimum wage is $8.05 per hour. The minimum wage rate is recalculated annually on September 30, based on the consumer price index, but did not increase in 2016.
What are the rules applicable to final pay and deductions from wages?
No Florida law applicable to final pay exists. Employers should be mindful that several local governments have enacted anti-wage theft laws and other local governments have proposed anti-wage theft laws. These ordinances prohibit wage theft and provide administrative procedures and a private cause of action for employees working for private employers.
For most adult workers, no Florida law applicable to deductions from wages exists; thus, federal law applies.
Hours and overtime
What are the requirements for meal and rest breaks?
Florida does not require meal and rest breaks for adult workers and thus federal law applies for meal and rest breaks. However, Florida has child labor laws relevant to meal and rest breaks (see Fla. Stat. § 450.081). Specifically, minors who are 17 years of age or younger cannot work for more than four consecutive hours without at least a 30-minute meal period. For the purposes of the law, no period of less than 30 minutes is deemed to interrupt a continuous period of work (Fla. Stat. § 450.081(4)).
What are the maximum hour rules?
For most adult workers, there are no limits on daily work hours, as long as minimum wage and overtime laws are observed. However, for day laborers, 10 hours of labor is a legal day’s work. Further, day laborers who perform manual labor are entitled to extra pay for all work performed in excess of 10 hours per day, unless a written contract has been signed by the employee and employer (see Fla. Stat. § 448.01 and Fla. Stat. Ch. 448.20, et seq. (Florida Labor Pool Act)). There are limitations on the hours minors (employees under 18) can work (see Fla. Stat. Ch. 450).
How should overtime be calculated?
Generally, Florida law requires non-exempt employees to be paid one-and-one-half times their regular rate of pay for any time worked over 40 hours in a working week (seven consecutive days). However, laborers who perform manual labor are entitled to extra pay for all work performed in excess of 10 hours per day, unless a written contract between the employee and employer provides otherwise (see Fla. Stat. § 448.01 and Fla. Stat. Ch. 448.20, et seq. (Florida Labor Pool Act)).
What exemptions are there from overtime?
Section 448.110(3) of the Florida Statutes incorporates the exemptions to overtime found within Sections 213 and 214 of the Fair Labor Standards Act. Florida has no state-specific exemptions from overtime.
What payroll and payment records must be maintained?
Employers must maintain accurate time and payroll records. Actions to enforce Article X, Section 24 of the Florida Constitution are subject to a four-year statute of limitations and a five-year statute of limitations for willful violations (Fla. Const. art. X, § 24(e)). Thus, employers should consider retaining all time and payroll records for at least five years.
Discrimination, harassment and family leave
What is the state law in relation to:
Under Florida law, it is unlawful to discriminate against an individual because of his or her age if the employee is at least 40 years of age.
Under Florida law, it is unlawful to discriminate against an individual because of his or her race.
Under Florida law, it is unlawful to discriminate against an individual because of his or her “handicap,” which Florida courts have interpreted to have the same meaning as the term “disability” under federal law.
Under Florida law, it is unlawful to discriminate against an individual because of his or her gender.
(e) Sexual orientation?
Florida’s state anti-discrimination law does not address discrimination against an individual because of his or her sexual orientation, but a number of county and city ordinances in Florida do expressly prohibit discrimination on the basis of sexual orientation.
Under Florida law, it is unlawful to discriminate against an individual because of his or her religion.
Florida’s anti-discrimination statute has been interpreted—consistent with the Americans with Disabilities Act—to prohibit employers from conducting medical examinations or making inquiries of job applicants regarding the existence or nature of any disability or handicap; however, certain inquiries into an applicant’s ability to perform job-related functions may be permitted.
Other protected classes under Florida law include marital status and national origin (including ancestry).
What is the state law in relation to harassment?
Harassment based on the state-protected classifications addressed above is unlawful.
Family and medical leave
What is the state law in relation to family and medical leave?
Florida has no state law equivalent to the Family and Medical Leave Act with regard to private employers. However, under certain circumstances, Florida law requires private employers to provide employees with up to three working days of leave during any 12-month period where the employee or a family or household member of the employee is a victim of domestic or sexual violence.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The Florida Constitution expressly recognizes a right to privacy that is broader than the federal Constitution; however, it is limited to government action and applies to public-sector employment only. Additionally, Florida courts recognize three separate invasion of privacy claims:
- public disclosure of private facts;
- appropriation of a name or likeness; and
- intrusion on solitude or seclusion.
Monitoring employees in Florida creates invasion of privacy considerations and requires employers to balance employees’ privacy interests with the need for monitoring. Florida has also implemented a wiretap statute that prohibits the interception of any private wire, oral, or electronic communication when none of the parties to the communication have consented to the interception.
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Florida has no law relating to employers’ right to access social media. In 2013 a bill was proposed to make it unlawful for employers to compel applicants or employees to provide access to their protected personal social media accounts. The proposed bill died in committee and was not enacted.
Bring your own device
What is the latest position in relation to bring your own device?
Florida law is silent on the issue of bring your own device.
To what extent can employers regulate off-duty conduct?
Florida prohibits employers from asking employees whether they have a gun in their vehicle and further prohibits employers from searching an employee’s private vehicle to determine whether it contains a gun. An employer is also limited by Florida’s recognition of invasion of privacy claims. An employer’s interest in monitoring an employee’s off-duty conduct will generally be viewed with more scrutiny than on-duty conduct and will require a compelling justification.
Are there state rules protecting gun rights in the employment context?
Yes. Florida law permits employees with proper permits to keep guns locked in their vehicles while at work. The law creates an exception to at-will employment and prevents an employer from terminating or otherwise discriminating against an employee because he or she possesses a firearm inside his or her locked, privately owned vehicle while on company property.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Florida follows federal law regarding IP rights created by employees (e.g., see EMSA Ltd. Partnership v. Lincoln, 691 So. 2d 547, 549 (Fla. 4th DCA 1997)).
What types of restrictive covenants are recognized and enforceable?
Florida has two statutes governing restrictive covenants. Section 542.335 of the Florida Statutes governs the enforceability of restrictive covenants entered into on or after July 1 1996. Section 542.33 of the Florida Statutes governs restrictive covenants entered into before July 1 1996. Section 542.335 provides that restrictive covenants must be set forth in a written document, signed by the person against whom enforcement is sought, and must be “reasonable in time, area, and line of business.” The party seeking enforcement of a restrictive covenant must “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” A non-exclusive list of legitimate business interests is stated in Section 542.335(1)(b). The party seeking enforcement must also “plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” A court may modify a restraint that is “overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests.” The statute also provides a range of rebuttable presumptive timeframes for the enforceable duration of restrictive covenants, with respect to each of the following categories of persons against whom enforcement may be sought:
- former employees, agents, and independent contractors;
- former distributors, dealers, franchisees, and licensees; and
- sellers of a business or professional practice (see Section 542.335(1)(d)).
Are there any special rules on non-competes for particular classes of employee?
All non-competes must observe the statutory provisions regarding restrictive covenants. Certain restrictions on the enforcement of non-compete covenants within the legal profession are imposed by Rule 4-5.6 of the Rules of Professional Conduct. In addition, Rule 10.680 of the Florida Rules for Certified and Court-appointed Mediators provides the following:
“With the exception of an agreement conferring benefits upon retirement, a mediator shall not restrict or limit another mediator’s practice following termination of a professional relationship.”
No other profession or occupation is governed by special rules.
Right to work
Is the state a “right to work” state?
Yes, Florida is a right to work state (see Fla. Const. art. I, § 6).
Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
No, Florida is not a heavily unionized state. According to US Bureau of Labor statistics, in 2015, 6.8% of the Florida workforce belonged to a union.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
Florida has no mini Worker Adjustment and Retraining Notification Act or any state law regarding notice for plant closures and mass layoffs; thus, federal law applies.
Discipline and termination
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
At-will or notice
At-will status and/or notice period?
With the exception of an explicit contract stating otherwise, employees in Florida are at-will employees.
What restrictions apply to the above?
Florida follows all federal protections of employees. Florida also has its own Florida Civil Rights Act, which prevents employers from discharging employees on the basis of race, color, religion, sex, national origin, age, handicap, or marital status. Florida employees also have the right to join labor unions without fear of termination.
Are there state-specific rules on when final paychecks are due after termination?