Employment Law, Florida
Lubliner Law Firm answers some frequently asked questions regarding Florida Employment Law:
Q: Why do I have 21 days to consider this severance agreement?
A: When an employee receives a severance offer, they are often shocked to see in the agreement that the employer is telling them to consult a lawyer, that they have 21 days (or sometimes 45 days) to consider the agreement, and that they have seven days after they sign the agreement to change their mind.
Q: Why do employers do this? Are they just trying to be nice to the employee that they are firing?
Employers do this because if the worker is over 40 years of age and the employer wants the employee to waive claims of age discrimination, federal law says they have to do these things.
Specifically, the Older Workers Benefits Protection Act (OWBPA) part of the Age Discrimination In Employment Act requires seven things.
1.The waivers must be drafted in plain language geared to the level of comprehension and education of the average individual(s) being terminated. 2.An OWBPA waiver must expressly spell out the Age Discrimination in Employment Act (ADEA) by name. 3.A waiver must advise the employee in writing to consult an attorney before accepting the agreement. 4.A waiver must provide the employee with at least 21 days to consider the offer. The 21-day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21-day period starts over. If it is a mass layoff, the employee must have 45 days to consider the offer. 5.A waiver must give an employee seven days to revoke his or her signature. 6.A waiver must not include rights and claims that may arise after the date on which the waiver is executed. 7.A waiver must be supported by consideration in addition to that to which the employee already is entitled. If a waiver of age claims fails to meet any of these seven requirements, it is invalid and unenforceable. In addition, an employer cannot attempt to “cure” a defective waiver by issuing a subsequent letter containing OWBPA-required information that was omitted from the original agreement.
Q: Which Federal Employment Laws Apply to My Employer?
A: Different companies are subject to different federal employment laws based on their size. Below is an overview of the federal employment laws that affect companies with certain numbers of employees.
There may be additional state laws that apply which are not discussed here.
Although smaller companies are exempt from certain requirements, there are still a number of laws they must follow. Many laws affect employers with at least one employee.
The Fair Labor Standards Act (FLSA), which provides for a minimum wage, guarantees overtime pay, and protects whistle-blowing applies to all employers that have at least one employee if the employee is engaged in interstate commerce or the production of goods in interstate commerce. The FLSA also includes the Equal Pay Act, prohibiting sex-based wage discrimination, and child labor laws.
The Employee Retirement Income Security Act (ERISA) protects employee benefits when the employer offers them.
Other laws that apply to all employers with at least one employee are the Occupational Health and Safety Act (providing for safe working conditions), the Fair Credit Reporting Act(regulating the use of consumer credit information for employment purposes), the Immigration Reform and Control Act (making it unlawful to knowingly hire illegal immigrants), the Federal Insurance Contributions Act (requiring both employees and employers to fund Social Security and Medicare), the Employee Polygraph Protection Act (preventing employers from using lie detector tests), the Uniformed Services Employment & Reemployment Rights Act (protects armed service members’ reemployment rights after returning from a period of service), and the National Labor Relations Act (protects the right to join labor unions and engage in collective bargaining).
An employer with at least 15 employees is responsible for complying with additional statutes. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin.
Additionally, the Pregnancy Discrimination Act protects pregnant employees from discrimination. The Americans with Disabilities Act prohibits discrimination based on disability.
The Age Discrimination of Employment Act (ADEA) applies to companies with 20 or more employees. ADEA protects the rights of workers over 40. The Consolidated Omnibus Budget Reconciliation Act of 1983 (COBRA) also affects companies employing at least 20 employees. COBRA allows employees to keep their health coverage during times of job loss or transition.
Employers with at least 50 employees are subject to the Family and Medical Leave Act (FMLA). FMLA grants an employee 12 weeks of unpaid leave for childbirth, a serious health condition, or to care for an immediate family member with a serious health condition.
Employers with 100 or more employees must provide 60 days notice of plant closings or mass layoffs pursuant to the Worker Adjustment and Retraining Notification Act (WARN). Employers with at least 100 employers (or 50 if the company is a federal contractor) must also file an Employer Information Report (EEO-1 Report) annually with the Equal Employment Opportunity Commission (EEOC) and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Employers must provide a count of their employees by job category and by ethnicity, race and gender.
Q: What can an employee get from the jury under the Florida Civil Rights Act?
A: Relief under the Florida Civil Rights Act (FCRA), like its predecessor the Florida Human Relations Act, is modeled after federal law, specifically Title VII. Assuming the plaintiff is able to bring suit in court, the plaintiff may recover damages under § 760.11(5), Fla. Stat.
1. Back Pay And Benefits
The FCRA has always been interpreted to provide relief consistent with Title VII. However, no liability for back pay can accrue from a date more than two years prior to the filing of the charge.
2. Compensatory Damages
The Court may award damages for “mental anguish, loss of dignity, and any other intangible injuries.” Fla. Stat. § 760.11(5).
3. Punitive Damages
No statutory standard is provided. Punitive damages awarded under § 760.11(5), Fla. Stat. are not subject to the procedural and substantive limitations of §§ 768.72 and 768.73, but they are limited to $100,000. The State and its agencies and subdivisions are not liable for punitive damages.
4. Reinstatement, Hiring, Promotion
The FCRA does not expressly provide for reinstatement, hiring, promotion, etc., but those remedies are available.
5. Caps On Damages
Unlike Title VII, there is no dollar cap on compensatory damages under the FCRA. Any downward adjustment to a compensatory damage award must be based on traditional principles of judicial review of damage awards, as well as § 768.74, Fla. Stat. However, the FCRA has a cap of $100,000 on punitive damages. The FCRA also incorporates the limitations on the recovery of damages against the State and its agencies and subdivisions set forth in § 768.28(5).
Q: What is the Division of Administrative Hearings (DOAH)?
A: The Division of Administrative Hearings (DOAH) is a Florida state agency made up of Administrative Law Judges who hear cases in which substantial interests are determined by an agency and there is a disputed issue of material fact. Fla. Stat. 120.569(1).
Whenever the state takes action that is adverse to a person, she can generally request an administrative hearing.
•If a state agency is taking action that negatively affects you, you may generally request an administrative hearing to determine the matter. This initial hearing request is made to the agency involved. Fla. Stat. 120.569(2)(a). If there is a dispute over a material fact, the agency will refer the matter to DOAH. If the matter is referred to DOAH, you will be notified of the case number and the judge assigned to your case. •You are entitled to a hearing before an administrative law judge. Fla. Stat. 120.569(2) (b). After the case is sent to DOAH, you will be contacted regarding your preference for date and place of hearing. The hearing will be held within 120 days of DOAH receiving your case. DOAH offices are located in Tallahassee, but hearings may be held in other cities. You will receive notice with the time, place, and nature of the hearing. •You may represent yourself or have an attorney represent you. You may also have a non-lawyer present your case if the judge determines that he or she will adequately protect your rights. All papers filed in the proceeding need to be signed by you or your representative. Fla. Stat. 120.569(2) (e). •Just as in a regular civil case, discovery is governed by the Florida Rules of Civil Procedure. You are entitled to request certain documents and a judge will enforce proper discovery. •At the hearing, each side will present its evidence. You may present witnesses at a DOAH hearing. Fla. Stat. 120.569(2) (f). If a witness will not appear voluntarily, they may be subpoenaed by the court. Id. Cross-examination of opposing witnesses is allowed. Fla. Stat. 120.569(2) (j). Hearsay evidence is admissible. Fla. Stat. 120.57(1)(c). •The judge may allow you to submit proposed decision after the hearing. A decision will be made within 90 days of the hearing. Fla. Stat. 120.569(2) (l). A record will be made of the proceedings. You may obtain a copy of the transcript but you will have to pay the costs of its preparation. Fla. Stat. 120.57 (1)(g). •If you disagree with the recommended order, you may take “exceptions” to it by sending a letter to the agency head within 15 days. Fla. Stat. 120.57(1)(b). •The agency head must issue a Final Order within 90 days of the Recommended Order. If you disagree with this Final Order, you have a right to an appeal in the District Court of Appeal within 30 days.
Q: What is the Fair Labor Standards Act?
A: The Fair Labor Standards Act (FLSA) sets minimum wage and overtime pay standards as well as recordkeeping and child labor standards for most private and public employment.
The overtime provisions of the FLSA require employers of covered employees who are not otherwise exempt to pay the employees not less than one and one-half times their regular rates of pay for all hours worked in excess of 40 in a workweek.
The minimum wage provisions of the FLSA require employers of covered employees who are not otherwise exempt to pay employees a minimum wage. In Florida, the current minimum wage is $7.25 per hour. Employers may pay employees on a piece-rate basis and, under some circumstances, may consider tips as part of wages. Tipped employees must receive a direct hourly wage of $4.19 and their total wage payment must exceed $7.25 per hour.
Salaried Employees: A salary, by itself, does not exempt employees from the minimum wage or from overtime. Whether employees are exempt from minimum wage and overtime depends on their job duties and responsibilities as well as the salary paid. Often, salaried employees do not meet all the requirements specified by the regulations to be considered as exempt from overtime pay.
The FLSA provides that employees who are successful in suing for unpaid wages are generally entitled to two times the amount originally owed and the attorneys’ fees associated with bringing suit.
(1) Improper classification of employees as exempt.
(2) Failure to record all hours actually worked to include time spent before or after the shift.
(3) Shorting of hours by using terms such as down time, rain delay, or mandatory break.
(4) Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
(5) “Banking” of overtime hours or payment of overtime in the form of “comp time.”
(6) Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
(7) Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
(8) Failure to pay for travel from shop to work-site and back.
(9) Deductions made from employees’ wages for such items as cash or merchandise shortages, required uniforms, and tools of the trade are not legal to the extent that they reduce the wages below the statutory minimum wage or reduce the amount of overtime pay.
Do Statutes Of Limitations Apply To Administrative Proceedings Under The Florida Civil Rights Act?
As a result of Joshua v. City of Gainesville, 768 So.2d 432 (Fla. 2000), and Woodham v. Blue Cross & Blue Shield,829 So . 2d 891(Fla. 2002), the Florida Supreme Court has arguably clarified the timelines applicable to lawsuits under the Florida Civil Rights Act (“FCRA”).
This brief article will discuss the question of whether there is a statue of limitations applicable to administrative proceedings under the FCRA and the answer of the Florida Commission on Human Relations (“FCHR”).
The FCHR is a commission made up of citizens of Florida who are appointed by the Governor. Individuals who believe that they have been discriminated against in violation of the FCRA are required to file a charge with the FCHR within 365 days of the alleged discriminatory act. The FCHR is supposed to investigate the allegations and issue a determination within 180 days. If within 180 days of the filing of the charge the FCHR determines that there is reasonable cause to believe a discriminatory practice has occurred, then the charging party has the choice of bringing a civil action within 1 year of the date of the determination or requesting an administrative hearing within 35 days of the determination. If a finding of “not reasonable cause” is made within the 180 days by the FCHR,then the charging party’s only remedy is an administrative hearing, which must be requested within 35 days of the not reasonable cause determination. If the FCHR does not issue a determination within 180 days, the charging party may proceed as though reasonable cause had been found and if they choose they may file suit within four-years of when the employee knew or should have known of the allegedly discriminatory action, or they can request an administrative proceeding. 1.
A number of panels of the FCHR have held that statutes of limitations are inapplicable to these administrative proceedings. For example, in Prentice v. North American Realty Corp., FCHR Order No. 00-021 (Jan. 9, 2001), the petitioner filed her charge on April 4, 1994. The FCHR did not complete its investigation and the petitioner requested an administrative hearing on August 21, 1998, more than four years after the alleged harm and more than four years after the charge was filed. The administrative judge dismissed the petition on these grounds. The FCHR overturned, reasoning that if no determination is ever made, a charging party may request an administrative hearing at any time following the initial 180 day period, even after the four year statute of limitations has run.
In Ford v. Mold-Ex Rubber Co., 23 F.A.L.R. 1586, FCHR Order No. 01-014 (Mar. 19, 2001), and Tutson v. Dep’t. of Children & Family Servs., FCHR Order No. 02-094 (Nov. 8, 2002), the administrative law judges concluded that the statute of limitations bared petitions for relief more than four years after the alleged discrimination occurred, even through they were filed within 35 days of the issuance of the not reasonable cause determination. The FCHR rejected this position and concluded that where a determination is made, a petition for relief is timely as long as it is filed within 35 days of the determination, even if it is more then 4 years after the last act of alleged discrimination.
In sum, it is currently the FCHR’s position that a charging party may request an administrative hearing at any time after the conclusion of the initial 180 day period following the filing of the complaint. However, where there is an FCHR determination of reasonable cause or not reasonable cause, the request for an administrative hearing must be filed within 35 days after the date of the determination by FCHR.
While the FCHR’s position may initially trouble employers, they should remember that they can still assert the defense of laches against a charging party who has waited too long to make a request for an administrative hearing. In addition, it is not clear that a court would agree with the FCHR’s interpretation of the FCRA if an employer was to appeal an adverse order of the FCHR.
1. Administrative proceedings under the FCRA are referred to Division of Administrative Hearing (“DOAH”) hearing officers who make recommended orders to the FCHR. A panel of the FCHR then considers the recommended order and may, in their discretion, alter it. Relief available through the administrative hearing route includes lost wages, actual and other compensatory damages, promotion, reinstatement, cease and desist orders, attorney’s fees and costs.