Being laid off from a job can be traumatic, especially when an employee has worked in a job for a long time. Even employees who are new to a job, however, state that the prospect of dealing without an income and having to find another position is just as stressful. As we all know, Florida is a “right to work” state. “Right to work” is a marketing term meaning that an employee has no rights. Some rights do, however, still exist, and if a terminated employee comes to you, you should have some familiarity with the law.
1. Notice
Under the “at will” employment doctrine, an employer may terminate an employee at any time and for no reason. However, most Florida courts recognize and enforce a limited but important (and often overlooked) exception to that doctrine: each side to the “at will” employment relationship has an implied contractual obligation to provide reasonable advance notice to the other side when ending the relationship. Perri v. Byrd, 436 So. 2d 359 (Fla. 1st DCA 1983). Courts have interpreted the “at will” relationship to require at least some “reasonable” notice of termination. Courts have generally interpreted two weeks as reasonable notice.
2. Unemployment.
Although certain basic qualifications must be met regarding tenure at a job, most employees are entitled to unemployment if they are laid off. Unemployment benefits are not due when an employee is terminated for “misconduct associated with work” as that term is defined by the unemployment statute and various cases. Generally, only persons who violate specific company rules and who are guilty of more than “isolated misconduct” will be disqualified. Even if an employee permits an employer’s offer to resign rather than be terminated, the employee may still be entitled to unemployment compensation benefits if the resignation was in fact in lieu of termination.
3. Severance
There is no entitlement to severance pay under Florida law. Many companies choose to offer severance pay to employees who have been terminated or laid off because it is generally its policy to obtain a waiver of any possible liability and also to terminate the employment under the best conditions possible. Especially when an employee may have access to confidential information or may be able to harm the employer substantially, the employer will generally want to obtain a severance agreement with some type of commitment on behalf of the employee to refrain from taking action which would harm the employer or its customers in the future. When severance agreements are offered, they may sometimes be negotiated and many times, especially if the employee may have another potential claim against the company, an employer will increase the amount of severance which it has initially offered. Some companies’ severance policies are governed by ERISA (Employee Retirement Income Security Act) plan. If so, the employee would be entitled to a certain amount of severance under certain conditions. It would be important to obtain a copy of the plan documents before signing off on a severance agreement in case you may be entitled to a greater amount of severance than the amount which is initially offered.
Most severance agreements will contain specific terms permitting you either 21 or 45 days to consider the severance agreement and also permitting you a seven-day revocation period. The agreement should contain other terms as well in order to comply with the Older Workers’ Protection Act, which is a statute designed to protect workers over age 40. The OWBPA contains other procedural safeguards as well.
4. Potential Overtime Claims
Employees will often find that their employers have failed to pay them appropriate amounts of overtime during their previous employment. Most employees are entitled to overtime for hours spent in excess of 40 hours during a workweek. A certain number of exemptions to the overtime statute apply, the most common of which are the administrative executives and professional exemptions. Just because an employee was paid on a salary does not mean that he or she is not entitled to overtime compensation. Many employers mistakenly categorize their employees as exempt from overtime when their actual duties and responsibilities should not result in an exemption. An employee may obtain overtime compensation for the past two, and usually three, years prior to filing a lawsuit.
5. Discrimination Claims
Employees may wish to pursue claims against their employer for specific types of discrimination made illegal under either Florida or federal law. Discrimination or harassment of an employee is only illegal if it violates a specific statutory right. Discrimination based on age, race, sex, disability, national origin, marital status, religion, veteran status is prohibited under Florida law. Likewise, employers may not retaliate based on a previous complaint of protected characteristic discrimination or a previous workers’ compensation filing or the complaint or threat of complaint of employer illegal activity (whistleblowers). Often employees have evidence of prohibited conduct by an employer and may be able to bring a claim against the employer for such activity, or may wish to negotiate with the employer to obtain some sort of severance agreement in exchange for not pursuing a claim.