The ADEA includes a broad ban against age discrimination and also specifically prohibits:
- Discrimination in hiring, promotions, wages, or termination of employment and layoffs.
- Statements or specifications in job notices or advertisements of age preference and limitations.
- Denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers.
- Since 1978 it has prohibited mandatory retirement in most sectors, with phased elimination of mandatory retirement for tenured workers, such as college professors, in 1993.
Mandatory retirement based on age is permitted for:
- Executives over age 65 in high policy-making positions who are entitled to a pension over a minimum yearly amount.
Americans With Disabilities Act (ADA)
What Is The Americans With Disabilities Act (ADA)?
The Americans with Disabilities Act (or “ADA”) makes it unlawful for employers to discriminate against an individual with a disability.
The truth of the matter is that persons with disabilities often perform their duties at a higher level then other coworkers. Disabled employees can be excellent resources for employers. However, at times, a supervisor allows a bias to get in the way by wrongly perceiving that a person with a disability is going to be a liability, will be unable to do the job, will need to go to the doctor, or worse.
Termination Because Of A Disability
Often, employers will terminate an employee with a disability because the employer believes the employee will be unable to perform the essential functions of the position. Likewise, employers may decline to hire a person with a disability. An employer may not lawfully terminate an employee because of a disability if the employee can perform the essential functions of the job either with or without accommodations.
What Is Employment Discrimination?
Employment discrimination is illegal. Both Federal law (Title VII) and Florida state laws (The Florida Civil Rights Act) prohibit the following types of discrimination in the workplace:
- Race Discrimination
- Age Discrimination
- Gender Discrimination or Sex Discrimination (including sexual harassment)
- Disability Discrimination (Americans with Disabilities Act (“ADA”))
- National Origin Discrimination
- Religious Discrimination
- Pregnancy Discrimination
- Examples Of Workplace Discrimination
Some specific examples of possible workplace discrimination include:
- Termination of employment based on discrimination
- Refusing to hire individuals of a protected class based on discrimination
- Harassment based on discrimination
- Retaliation against an individual for complaining about discrimination
- Racially insensitive or derogatory language that creates a Hostile Work Environment
- Posting signs or sending emails that have racially insensitive or derogatory language
What Is The Equal Employment Opportunity Commission (EEOC)?
The Equal Employment Opportunity Commission (“EEOC”) is a federal agency charged with the initial responsibility of investigating discrimination in employment.
Individuals who feel they have been discriminated against generally must first file a charge (or complaint) of discrimination with the EEOC. When a charge of discrimination is filed, the EEOC conducts an investigation to determine if there is reasonable cause to believe that discrimination has occurred.
At the conclusion of the investigation, the EEOC will issue its findings, at which time the complainant can file a lawsuit against the discriminating employer.
Employment contracts (also called Employment Agreements, Agreements or various other names), may come in different forms and be created under various circumstances.
Contracts Can Be Written Or Verbal, Formal Or Informal
- Verbal – Employer promises to hire landscaper and pay $100 for the day. Services are performed but Employer declines to pay. Employee can sue Employer for Breach of Verbal Contract
- Written – From offer letter to formal written agreements
What Is Breach Of Contract?
Every employee has a contract. Even at “At –Will” employee has a verbal contract to the affect that he will perform services for a sum of money. If the money or benefits are not tendered, the Employee can sue for breach of contract. Employment contracts may create a variety of rights or obligations on the part of employers and/or employees. When contracts are breached by either employees or employers, the non-breaching party may sue for breach of contract.
Family Medical Leave Act
The FMLA covers employees that:
- Are Employed by a company of 50 or more employees
- Have been employed for at least 12 months
- Have worked at least 1,250 hours during the 12 month period immediately preceding the absence
Under the FMLA, covered employees are:
- Eligible to take up to 12 weeks of medical leave in a one-year period.
The reasons for medical leave can include:
- The birth or adoption of a child.
- Caring for a spouse, parent, or minor child who cannot care for him or herself.
- A serious health condition that makes the employee unable to perform the essential functions of the job with or without reasonable accommodation.
The leave of absence can be unpaid. The FMLA has different methods of calculating the one-year period and requires the employer to have an FMLA policy.
Non-compete agreements generally provide for no competition during and after employment.
Some basic facts about non-compete agreements are:
- Non-compete agreements must be reasonable in geographic scope and duration.
- Non-compete agreements can be separate contracts or part of an overall employment agreement.
- Under Florida law, non-compete agreements must contain certain very specific requirements in order to be enforceable, and;
- There is a Florida Statute governing the enforceability of such contracts.
The Fair Labor Standards Act (“FLSA”) is a Federal law that requires employers to pay most employees overtime pay according to the following rule:
- Time and one half their regular pay rate for all hours worked over 40 in a workweek
(Example: $10 per hour should be $15.00 per hr for each our over 40 hrs)
What Amount Of Money Can I Recover?
Under the FLSA, eligible employees not paid overtime in the past may be entitled to:
- “Back Wages” for the full amount of overtime pay owed by the employer (Example:, plus;
- “Liquidated Damages” or double damages in the same amount as the past overtime wages (Example: Recover $10,000 in overtime then recover an addition $10,000 in Liquidated Damages).
- “Attorneys Fees & Costs” – The FLSA requires employers to pay the employee’s fees & costs if the employer loses the lawsuit. We handle cases on a contingency fee basis and seek attorney’s fees and costs from the employer.
OVERTIME MYTH: An employee who is paid a salary is exempt from FLSA overtime
This is false. Just because your employer pays you a salary does not mean that you are not entitled to overtime. While there are some overtime exemptions under the FLSA when an employee is paid a salary, employers often misuse the exemptions and improperly misclassify the employee as “salaried exempt”.
Salaried employees almost never legally pursue their unpaid overtime because they assume that if they are paid a salary, they are not entitled to overtime. If you were paid a salary, but still worked more than 40 hours in any week, you should contact our office for a free overtime consultation. We can quickly analyze your duties to determine if you were misclassified.
Common Overtime Violations
There is no substitution for paying employees overtime pay. Often times, Florida employers attempt to avoid paying proper overtime by providing alternate methods of compensation or using accounting tricks to avoid proper compensation. Common overtime violations of the FLSA include:
- Employer refuses to pay employees any overtime as a company policy.
- Improperly classifying employees as “salary exempt”, when, in fact, they should be paid for working overtime.
- Paying “straight time” pay (or continuation of the regular pay rate) instead of time and one half the employee’s regular rate.
- Not compensating employees for “prep time” spent setting up, or time spent finishing up a work day.
- Not compensating employees for “drive time”, or time spent driving to or from the workplace to a job site or from a job site to the workplace.
- Improperly classifying an employee as an “independent contractor” to avoid paying overtime.
- Allowing employees to accumulate additional paid time off, such as vacation time or “Comp time” in place of paying proper overtime.
- Telling employees to clock out of work to avoid exceeding forty hours.
- Substituting periodic bonuses in exchange for paying proper overtime.
OVERTIME MYTH: An employee does not track time cannot recover overtime because it is impossible to determine the number of overtime hours worked
This is FALSE! The FLSA puts the obligation on the employer to track and maintain time. if no time records are kept, then the law permits the employee to estimate the number of overtime hours worked. This most often occurs when an employer improperly designates an employee as salaried exempt and no time records are kept.
Our Florida Employment Attorneys often represent and assist employees who need to recreate their time. Our Florida Discrimination Lawyers can do this with a number of tools, including work schedules, emails, and the employees own testimony.
The Department of Labor requires that all employers maintain accurate records for overtime eligible employees as follow:
- Employee’s full name, address, DOB, gender and occupation
- Time and day of week when employee’s workweek begins
- Hours worked each day
- Total hours worked each workweek
- Method by which employee wages are paid (hourly rate, salary amount, commission)
- Regular hourly rate
- Total weekly straight-time earnings
- Total weekly overtime earnings.
- All additions to or deductions from wages
- Total wages paid each pay period
- Date of payment and the pay period covered by the payment.
If I am Currently Employed, Can My Employer Terminate Me For Seeking Overtime?
NO!! It is illegal for an employer to retaliate against any employee for:
- Complaining or protesting to a boss or supervisor because the individual is not being paid proper overtime; or
- Filing lawsuit for unpaid overtime against an employer.
How Long Do I Have To File An Overtime Claim Against My Part Employer?
The FLSA allows an employee to go back as many as 3 years to recover Overtime. Florida employment law sometimes as claims available where an employee can seek wages beyond the 3 year period.
Examples Of Pregnancy Discrimination Prohibited By Federal And Florida State Law:
- Employers cannot terminate women due to pregnancy
- Employers cannot refuse to promote women due to pregnancy
- Employers cannot hire women due to pregnancy
- Employers must permit pregnant women to work so as long as they can perform the essential functions of their job
- Employers must hold open the position of a pregnant on leave equally as they would for similarly situated employees who are not pregnant.
Many state and federal statutes, such as Title VII and the Florida Civil Rights Act, make it unlawful to retaliate against an employee for engaging in what is legally referred to as “protected activity”.
Anti-retaliation laws make it unlawful for an employer to terminate an employee in retaliation for:
- The employee complaining in good faith about discrimination.
- The employee complaining in good faith about harassment.
- The employee disclosing violations of the law.
- The employee cooperating or providing information to a government agency conducting an investigation.
- The employee refusing to follow a policy or order that is discriminatory.
- It is also unlawful under Florida law to terminate an employee in retaliation for filing a workers’ compensation claim.
Retaliation can also occur after an employee has been terminated when the employer attempts to interfere with an employee’s prospects for future employment. Examples of post –termination retaliation include:
- Negative job reference to a prospective employer with retaliatory motive.
- Not providing a job reference to a prospective employer.
- Disclosing the protected activity in which the employee engaged.
Often, an employer will provide an employee with a “Severance Agreement” or “Separation Agreement” when an employee is:
- Laid-off, or
- The job position is eliminated.
These agreements generally provide the employee with:
- Monetary compensation, which can vary, and/or
In exchange, the employee signs a general release, discharging the employer from any and all legal obligations.
Sexual harassment in the workplace is illegal! Sexual harassment is unlawful under both Federal sexual harassment law (Title VII of the Civil Rights Act) and Florida sexual harassment law (The Florida Civil Rights Act).
Sex harassment usually comes in two forms:
- Hostile Work Environment (verbal sexual remarks, innuendos or touching)
- Quid pro Quo (Requests for Sexual Favors)
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
Facts About Sexual Harassment
- The victim may be a woman or a man.
- The harasser may be a man or woman.
- The victim does not have to be of the opposite sex. Same sex sexual harassment is illegal.
- The harasser can be the victim’s supervisor, a supervisor in another area, an owner, a co-worker, or even a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Sexual Harassment often goes unreported for fear of retaliation.
- It is illegal to fire or retaliate against an employee who reports sexual harassment.
- Even if a victim has consensual sex with a supervisor or owner they may have a sex harassment claim.
- The victims of sexual harassment often are unsure of how to exercise their rights because their harasser is often somebody who is in a position of power.
Our sexual harassment law firm and discrimination lawyers can confidentially advise you regarding these sensitive and difficult workplace harassment issues.
Examples of Sexually Harassing Behavior
Specific examples of sexually harassing behavior include:
- Unwanted sexual advances or attention.
- Unwanted physical contact, including:
- Grabbing, or
- Blocking, interfering, or inhibiting free movement in the workplace.
- Obscene or inappropriate invitations, either written or by e-mail, received at work or at home.
- Repeated face-to-face, telephone or email invitations of a sexual nature after being refused.
- Verbal abuse, including:
- Graphic comments regarding an individual’s body.
- Frequently discussing graphic details of sexual acts and exploits.
- Verbal sexual advances or propositions.
- Inappropriate comments, epithets, slurs and jokes.
- Passing over qualified employees for promotion in favor of an employee who is having a sexual relationship with the boss.
Unpaid Wages (Including Commisions)
A claim to recover unpaid wages can potentially be brought under the Fair Labor Standards Act or “FLSA” (a federal law) as well as the Florida Minimum Wage Act (Florida law).
There are a variety of potential claims for unpaid wages in Florida, the most common claims for unpaid wages include:
- Failure to pay minimum wage ($7.25 per hour as of July, 2009);
- Unpaid commissions;
- Unpaid Bonuses;
- Final Paycheck;
- Failure to compensate employees for vacation time earned.
What Amount of Money Can I Recover?
Employees who are owed unpaid wages in the past may be entitled to:
- “Back Wages” for the full amount of unpaid wages owed by the employer (Example:, plus;
- “Attorneys Fees & Costs”. The FLSA requires employers to the employee’s fees & costs. We handle cases on a contingency fee basis and seek attorney’s fees and costs from the employer.
By legal definition “Whistle blowing” generally refers to an employee engaging in “blowing the whistle” on some type of illegal activity. Examples include:
- Objecting, or
- Protesting illegal activities in the workplace
It may be unlawful for an employer to discharge an employee because that employee has:
- Reported or objected to alleged illegalities by the employer.
- Provided information to a government agency conducting an investigation.
- Inquired into alleged illegalities by the employer.
Some of the common whistleblower laws are:
- Florida Whistleblower Act
- Florida Public Sector Whistleblower Act
- Federal Whistleblower Act
The term “wrongful termination” is generally used to describe a situation where an employee is fired in violation of the law.
Although Florida is an employment “at-will” state, a number of statutes and civil laws make it unlawful for an employer to terminate an employee under certain circumstances.
For example, Florida law prohibits terminating an employee because:
- Whistle blowing
- The employee attends jury duty.
- Complaining of discrimination.
- Terminated by workers compensation retaliation
- For refusing to take a polygraph