Frequently Asked Employment Law Questions
Am I entitled to my personnel file?
Employees of private employers are not entitled to access or a copy of his or her personnel file. However, there are exceptions to this when the employer has a policy allowing access or there is a collective bargaining agreement that gives an employee the right to his or her personnel file. Public employees, such as those who work for a city, county or the state government, may obtain their personnel records if the governmental employer if subject to public record laws, which most are.
Is it illegal for my employer to give a negative job reference?
No. Many employees mistakenly believe that employers are only allowed to provide neutral information like their dates of employment and last position held when responding to reference checks. Unfortunately, this is not the law in Florida. Florida law provides a qualified protection to employers when they give out an employment reference. Meaning, employers are free to give bad references. However, if an employer has an illegal motive for giving out a bad reference, such as discrimination or retaliation, this may be unlawful and give rise to other claims. In some circumstances, it may constitute defamation. Learn more on our blog: References: Can my former employer talk bad about me to prospective employers?
Can an employer fire me if I don’t sign a non-compete?
An employer may terminate an employee who refuses to sign a non-compete agreement. In other words, an employer can require an employee to sign a non-compete as a condition of employment or continued employment.
Are non-compete agreements enforceable in Florida?
In Florida, a non-compete agreement is enforceable if it protects a legitimate business interest and is reasonable in scope. When determining the enforceability of a non-compete, the court will make an individual analysis of the employee’s job duties, training, exposure to confidential information or trade secrets, as well as the time and geographical scope of the restrictions. It is important to note that courts may be hesitant to completely void an overbroad non-compete agreement. Instead, when it is overbroad, the courts are permitted to modify or narrow the non-compete restrictions so that it is enforceable.
Does an employer have to pay severance?
There is no legal requirement that an employer pay severance to a departing employee. However, the employer may have to pay severance to eligible employees if it is required under an employee’s employment contract, a company policy or company severance plan (if one exists). To find out if your employer has a severance policy, check the handbook or make a written request to the employer for any severance plan or policy in place. Depending on the plan, the employer may have to provide the employee with the severance plan within 30 days of your written request.
Does an employer have to follow its disciplinary policy when terminating an employee?
In most situations, an employer is not required to follow its progressive disciplinary policies before terminating an employee. In fact, employers are not legally required to follow their own employment policies and procedures or to even consistently enforce their policies and procedures. But, if an employer is applying policies and procedures inconsistently for unlawful reasons, this may give rise to claims for discrimination or retaliation. Further, if the employer is subject to a collective bargaining agreement, an employer’s failure to follow the policies in the collective bargaining agreement can give rise to potential grievances. Likewise, when an employee has an employment contract, an employer not following the contract regarding discipline or termination may be a breach.
Is my employer required to pay me out for my accrued vacation when terminated?
A private employer typically is not required to pay out accrued vacation or PTO upon termination. There are exceptions, however. For example, if your employer has a policy or practice of paying out accrued vacation or it is required under a collective bargaining agreement or employment contract, then you may have a claim if it is not paid to you. Governmental (public) employees may have different rights to pay out of accrued time, depending on the employee’s length of employment, date of hire and the reason for separation. Learn more about pay out of accrued vacation on our blog: Are you entitled to payout of vacation time?
What is wrongful termination?
Wrongful termination really does not exist in Florida, especially since employees are employed at-will. However, there are several federal, state and local laws that protect employees from termination for illegal motives, such as discrimination or retaliation. Learn more on our blog: Examples of Wrongful Termination in Florida.
How long does my employer have to send me a COBRA notice?
Generally, you should receive COBRA notices within 44 days of your separation from employment. Pursuant to COBRA, when your employment ends from a covered employer, the covered employer has 30 days to notify the insurance administrator (i.e. the insurance carrier) about the termination of the employment relationship. The administrator then has 14 days to provide notice to you and your qualified beneficiaries (i.e. spouse, dependents, and etcetera) of the right to continue your health insurance, the costs for doing so and the deadline for when you must elect the coverage. When the employer is the administrator, the covered employer has a total of 44 days to provide you with the COBRA notice. If you do not receive your COBRA notice within this time frame, this may violate COBRA entitling you to damages to make you whole as well as a daily penalty, and sometimes even attorneys’ fees and costs. Learn more information on COBRA from the U.S. Department of Labor.
What laws prohibit pregnancy discrimination?
Pregnancy discrimination is prohibited by the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, the federal law prohibiting sex discrimination and other protected characteristics. The Florida Civil Rights Act of 1992, as amended also prohibits pregnancy discrimination and it is viewed as discrimination based on sex.
Do I have first amendment protections to free speech and assembly at work?
Private Employer. If you work for a private employer, the answer is typically no. The First Amendment protects individuals from intrusion by a government actor in the exercise of the rights to free speech and assembly. Because a private employer is generally not a government actor, you do not have the right to free speech or assembly while at work. However, depending on the content of the speech and circumstances, there may be other federal or state laws that may protect your speech at work. Check out our related blog: Can I be fired for my social media posts?
Governmental employer. If you work for a governmental employer (i.e. federal, state or local government), you generally do have First Amendment protection to free speech and assembly as long as certain conditions are met. These conditions include that 1) the protected actions are outside the scope of the employee’s job duties; 2) the speech is a matter of public concern; and 3) the government’s interest in preventing the protected action does not outweigh the employee’s interests.
What laws protect whistleblowers in Florida?
There are many federal and state laws that protect whistleblowers in Florida. For example, Florida has whistleblower laws that protect both private employees as well as government employees. Check out our blog 10 Common Whistleblower Claims which discusses the different types of whistleblower retaliation laws and the time frames for bringing those claims and see if you are protected.
What should I expect from my consultation?
At the consultation, you will meet with a qualified employment law lawyer who will go over your employment situation and provide you with legal advice on your rights as applicable to your workplace dispute. We will also suggest a plan of action and/or possible options to achieve your individual goals. In addition, we will explain the time period or deadline to bring any legal claims you may have, your options on how to proceed, and the costs and risks associated with attempting to accomplish your goals.
Why do you charge for a consultation?
We charge for a consultation because we dedicate up to an hour of time for you to meet with a qualified employment lawyer to discuss your specific circumstances and concerns. During this dedicated time, we listen as you share what is going on, so we evaluate your circumstances for pertinent facts, as well as listen for additional issues and claims and important deadlines of which you may not be aware. The lawyer will also discuss your potential remedies, and share advice on a strategy to resolve your employment situation in a way that is in your best interests. In fact, many times employees who receive a consultation from us get all of their questions answered at that time and don’t need to retain an attorney. We believe this sets us apart from the rest. Although we charge a consultation fee, we are sensitive to the fact that everyone has a different financial situation so we offer our consultations at a reduced rate from our normal hourly rates.
Do your lawyers review and negotiate severance agreements?
Yes. At Sass Law Firm, we have reviewed thousands of severance agreements and are experienced at advising employees regarding these agreements as well as providing sound advice on their impact on an employee’s future. When we represent you and advise you regarding your severance agreement, we will explain your rights and obligations contained in the severance agreement and discuss potential revisions to the terms of the agreement as well as additional language to request be included in the agreement that can benefit you. We also understand the likelihood of an employer negotiating about the severance agreement and its particular terms. We will explain the reasons why your employer may or may not negotiate or modify the agreement and the risks and costs associated with trying to negotiate for more severance or for more favorable terms, especially in relation to any legal claims you may have. This is designed to make sure that you are fully informed so that you can make a careful decision on whether or not to sign the severance agreement.
If I hire the firm, how am I kept informed of the status of my case?
At Sass Law Firm, we work as a complete team to ensure our clients’ questions are timely answered and every client is advised throughout the representation about the possible outcomes, costs and risks of proceeding. Our lawyers work individually with the client each step of the way and consistently have direct interaction, whether in person, by phone or in written communication to ensure you are fully informed and involved in the process.
Does your firm litigate cases?
Yes. Our firm’s mission is to provide employees with representation as to their employment law issues so they can try to accomplish their ultimate goals. In some circumstances, the only way to achieve that goal is to file a lawsuit. We aggressively handle employment lawsuits in federal and state courts as well as in arbitration.