Frequently Asked Questions

1)    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.

2)    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?

3)    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.

4)    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.

5)    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.

6)    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.

7)    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?

8)    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.

 

 

The information shared here is accurate at the time of posting, but may not reflect changes in the law.  Although intended for educational purposes, this content is not intended to be legal advice.  If you have any questions specific to your specific employment situation, you should contact an experienced employment attorney.