Florida Employment Law Attorneys
Rosenberg Law, P.A.’s team of employment law attorneys is well-versed in the broad scope of Florida employment law. We have extensive experience representing both sides of the employer / employee relationship. This can include issues such as hiring and firing, workplace safety, wages, discrimination, investigations, training, drafting of policies and procedures, litigation, agency representation at the EEOC and FCHR level, and much more. This experience gives us a unique perspective into the nuance of employment law cases. Employers and their current and prospective employees both have specific rights, protections, and obligations. Employees’ rights include the right not to be discriminated against based on a protected category, the right for reasonable accommodations for qualified individuals with a disability, and the right to be paid according to the strict wage and hour requirements of the federal Fair Labor Standards Act, as well as the Florida Minimum Wage Act. Employers must be diligent in keeping accurate records of hours worked, and ensuring current and prospective employees are not unlawfully discriminated against. These proactive steps will ultimately save your business from unnecessary lawsuits. In employment law, an ounce of prevention is often worth ten pounds of cure.
Generally speaking, the state of Florida is considered an employer-friendly state, and as such, state laws seldom reach beyond the minimum federal requirements. However, particular municipalities – Sarasota among them – have implemented ordinances that provide greater protections to certain employees than federal law. For instance, Sarasota protected sexual orientation long before Bostock v. Clayton County made such protection a federal requirement. Beyond that, while most federal employment laws don’t “kick in” until you have 15 or more employees, local ordinances might very well govern employers with as few as one (1) employee.
If this all sounds confusing, you’re not alone. The vast majority of employment law issues arise with employers having no idea they are in violation of the law. No matter how diligent your own research, there is simply no substitute for experienced counsel. You can rest easy knowing that Rosenberg Law P.A. is here for all your employment law needs.
What Power Does the Florida “At-Will” Law Give Employers?
Florida is an “at-will” employment state, giving employers a significant level of power in controlling employee’s compensation, privileges, and terms of employment. Absent an employment contract to the contrary, the at-will employment doctrine allows employers to terminate employees for any reason or no reason, with or without notice, and provides employees with the corresponding right to quit just as abruptly.
That said, employers may not discriminate against an employee on the basis of upon race; sex or gender (which also includes gender identity or identifying as gay, lesbian, homosexual, or transgender); religion (also meaning the request or receipt of an accommodation for a religious practice); national origin; disability (which also means a perceived disability or any need for accommodation of a disability); age; marital status; pregnancy or accommodations for pregnancy; veteran status; genetic information or make-up.
In addition, any employee who complains of harassment pertaining to any of the aforementioned categories is entitled to remedial action. If an employee makes such a complaint and the employer fails to act, the employer will almost certainly find themselves on the receiving end of a harassment / hostile work environment lawsuit. Rosenberg Law, P.A., can assist employers in taking appropriate remedial action to ensure that not only does your workplace remain free of harassment, but that you do not inadvertently expose yourself to an expensive cause of action.
What are the Most Common Types of Workplace Lawsuits and Grievances?
According to Pollack Peacebuilding Systems, in 2018 there were 76,418 workplace discrimination charges in the United States, with U.S. companies facing nearly a 12% chance of facing an employment lawsuit. According to a 2019 article in the Washington Post, more than 1,000,000 employment discrimination complaints have been filed since 2010. As you might guess, workplace discrimination is one of the most common reasons for an employee lawsuit, alongside:
- Hostile Work Environment,
- Wrongful Termination, and
The bar for an employee to claim discrimination, harassment, or retaliation is extremely low, so employers are wise to confer with counsel before taking any severe adverse workplace action, especially termination. If an employer terminates an employee falling into a protected category without compiling the appropriate documentation first, that employer might very well find themselves on the receiving end of a lawsuit that will cost just as much to fight as to settle.
What are the Ramifications of Wrongful Classification as a 1099 Independent Contractor in Florida?
An independent contractor provides goods or services under the terms of a contract that, while dictating the outcome of the work, allows the contractor to accomplish that outcome more or less autonomously. Whether a given individual is an employee or an independent contractor is a legal question; employee / independent contractor status cannot be conferred by mutual agreement, and no contract can turn an employee into an independent contractor, or vice-versa. The overwhelming majority of “independent contractors” are, in fact, simply misclassified employees under the law.
There are numerous financial incentives for employers to misclassify employees as independent contractors. An employer has no obligation to provide benefits to a putative independent contractor, and, perhaps more importantly, the employer is not required to pay minimum wage, overtime, healthcare, retirement, social security, worker’s compensation, income / Medicare tax, or unemployment insurance for independent contractors. These savings can easily add up to reduce labor costs by 20 – 40%.
However, while numbers like these can make misclassification seem like a worthwhile risk, attorneys can smell misclassification from a mile away, and the cost of being caught engaging in misclassification – even unintentional misclassification – vastly outweigh the short-term gains.
Penalties for misclassification include, at a minimum:
- Monetary penalty equal to 0.5% of the unpaid tax liability for every month, up to 25% of the total tax liability.
- An additional 40% of FICA taxes that were not withheld from paychecks.
- Interest assessed daily from the date FICA taxes were to be collected, plus an additional 100% of matching FICA taxes.
- All unpaid minimum wage and overtime wages, plus an additional 100% of that amount as “liquidated damages” (i.e. penalty) paid to the misclassified employee.
- All attorneys’ fees and costs the employee spent in suing you for misclassification.
And this is assuming only one instance of misclassification. Much more typically, a misclassification suit will quickly turn into a class action, multiplying these damages exponentially. It is thus extremely prudent to consult with a qualified employment law attorney – like Rosenberg Law, P.A. – prior to classifying any individual who will be performing work on your behalf as an independent contractor.
Are Florida Employers Required to Pay Overtime to Employees?
Under both the federal Fair Labor Standards Act and the Florida Minimum Wage Act, employees in the State of Florida are entitled to overtime wages equal to 1.5 times their regular hourly wage for ever hour in excess of 40 that they work in any given week. Note also that, despite some enterprising employers’ best efforts, overtime cannot be “waived” by mutual agreement. However, overtime is not required where an employee falls under an “exemption” to the Fair Labor Standards Act. These exemptions, while enticing, often present even more problems to employers than misclassification.
Taking Google at its word, employers can find an exemption for almost any given employee. However, these exemptions are, without exception, significantly more complicated than they appear. For instance, what is a “retail establishment” under the law? What constitutes a “managerial,” “administrative,” or “learned professional” employee? These terms each have different – and extremely specific, often convoluted – definitions under the law than they do in common usage, definitions which often have highly technical requirements seemingly designed to promote misunderstanding; many a well-meaning employer has committed an extremely expensive error in simply declaring “well, John Doe is a manager, so Google says he’s exempt.” And, exactly as with employee /independent contractor classification, exemption is a legal status that cannot be altered by mutual agreement.
There is no “good faith” defense to classifying a non-exempt employee as exempt. Once the fact of wrongful exemption is established, the case is simply a matter of arithmetic. Failure to pay owed minimum wage or overtime will cost an employer double the unpaid wages, as well as 100% of the plaintiff’s attorneys’ fees, which often meet or exceed the cost of the unpaid wages themselves. Thus, as with classifying an independent contractor, employers should think twice – and ideally consult with experienced counsel like Rosenberg Law, P.A. – before simply declaring any given employee exempt from minimum wage or overtime.
How Rosenberg Law, P.A. Can Help Florida Residents with Employment Issues
Whether you are an employee or employer seeking solutions regarding wage and hour law, discrimination, harassment, retaliation, misclassification, exempt v. non-exempt status, workplace safety, training, or policies and procedures, Rosenberg Law, P.A. is here to help. Our Florida labor and employment lawyers have significant experience helping employers and employees alike find equitable solutions. Let Rosenberg Law, P.A. assist you with your Florida labor and employment issues. Contact us today!