Category: Labor – Employment Law

An employer cannot make decisions based on a protected characteristic. What is a protected characteristic?

A protected characteristic would include things such as the age of the person or their gender or their race or their ethnicity. Those are factors that the low considers to be typically irrelevant to whether a person is really doing a good job. Most employers aren’t going to be interested in what the person’s race is or their ethnicity is, they’re going to be interested typically in whether they’re doing a good job. That’s where the law forbids employers from taking into consideration certain protected characteristics such as those I’ve described.

Are temporary employees able to file discrimination claims?

The Temporary employees can file discrimination claims, but only certain types of discrimination claims. Some claims require a certain period of employment for the employee to bring the claim. In other words, they had to be with the employer for a certain period of time to be able to have rights under that. An example would be under the Family Medical Leave Act where it would require a certain hours of employment and certain duration of employment to be able to have rights under that particular statute. Many employees can bring discrimination claims simply as temporary employees. There is no time period that they had to be employed by the employer, particularly if there is discrimination based on for example race or age or ethnicity.

Am I entitled to severance pay?

Typically no employee is entitled to severance pay unless there is a contractual obligation during the employment relationship where the employer and the employee had agreed that earlier in the relationship that when the relationship ends the employee is entitled to a certain amount of severance.

Are non-compete agreements always enforceable?

Non-compete agreements are not always enforceable. Florida typically requires that all competition be allowed, and there shall be no restriction of competition, but there’s a separate statute in Florida, which is 542.335 Florida statutes that governs non-compete agreements. That statute requires that there be certain legitimate business interests of the employer set out in the statute such as for example, the protection of trade secrets or the protection of confidential information. The employer has to plead and prove these to be able to force a non-compete covenant.

Are all employers covered under the Fair Labor Standards Act (FLSA)?

Not all employers are covered by the Fair Labor Standards Act. There are 2 basic types of coverage under the Fair Labor Standards Act. One type, the typical type is enterprise coverage meaning that the employer has to have at least $500,000 in revenues, and it has to have at least 2 employees. There are other types of coverage, which are called traditional coverage where there’s certain businesses that are going to otherwise be covered in the Fair Labor Standards Act regardless of the revenues and the number of employees.

Are there ever any exceptions to being an employee at-will?

There are many exceptions to employment at will, and these are what are called discrimination laws. When an employee is being discriminated against based on race, on age, ethnicity, whistle-blower status, worker’s compensation status, these are exceptions to the at will rule that have been created by the courts as well as by the legislatures. These allow the employees to enjoy protections where the employer cannot simply saying, “You’re an at-will employee because I’m terminating you.” The laws say you’re not allowed to fire somebody for these particular reasons, and if you do you’re subject to damages for those claims.

Can a company require an employee to arbitrate employment claims post-hire?

An employer can require an employee to arbitrate claims after they’ve been hired, but there has to be a written agreement signed by both the employer and the employee. Courts will typically honor those agreements because courts encourage arbitration to minimize the impact in courts and allow the parties, both the employer and employee to resolve the claims in the matter they’ve contracted for.

Can a former employer inform a prospective employer about the reasons for an employee being fired?

A former employer can inform a prospective employer about why that employee was fired but it’s a very risky maneuver. The reason is that if the former employer is trying to defame the employee or interfere with that employees employment it can resolve in a lawsuit. Examples could be if the former employee would have a claim for some type of retaliation or discrimination as to that former employer trying to get back against that employee.

Defamation is another possibility where the former employee is going to claim or could claim that the statements were not truthful or they were trying to cast the employee in a false light. It’s very risky for that former employer to contact a prospective employer about information but it’s not necessarily a violation of law and it’s not necessarily going to be resulting in a successful claim by that former employee.