Labor and employment law includes the many statutes, rules, and regulations, both state and federal, which apply to and govern the relationship between employers and their employees including areas such as hiring, promotion, wages, benefits, safety, termination and terms and conditions of employment. For example, there are state and federal minimum wage laws and rules as well as prohibitions against discriminating against employees or potential employees based on race. Some local governments in Florida have passed local ordinances prohibiting discrimination based on sexual orientation. Sexual and other types of harassment are prohibited. Retaliation by employers against workers who make complaints about workplace safety or other perceived unlawful practices or policies is prohibited.

Florida is an “at-will” employment state and a “right-to-work” state. As an “at-will” employment state, this means that an employer may end the employment relationship for any reason as long as it is not based on discrimination against a protected group or for whistleblower and other public policy reason. An employee has the same right to terminate his or her employment at any time for any reason. If an employee is a member of a union or has an employment contract, then any termination must be in accordance with such contracts.

Florida is a “Right-to-Work” state. This term is often misused but means that an employee in a unionized workplace may choose to belong to a union in the work place or not. The National Labor Relations Act governs the relationship between employers and unions in the private sector. The Florida Public Employee Relations Act governs that relationship in the public sector. .

There are a number of federal laws affecting Florida workers and employers.

Title VII of the Civil Rights Act of 1964

In 1964, Congress passed this landmark legislation that outlawed discrimination in hiring, discharge, compensation, terms, conditions or other privileges of employment based on race, color, religion, sex or national origin. The Equal Employment Opportunity Commission (EEOC) was formed as a result and is the enforcement arm for the legislation.

Since its passage, amendments and similar laws have expanded and strengthened the law to end gender and race discrimination including the controversial use of affirmative action to give minorities’ greater representation in hiring and promotion practices to promote equal protection under the law as guaranteed by the US Constitution.

Florida employees who feel they have been the victims of discrimination can file a complaint with the EEOC, the Florida Commission on Human Relations or local agency (if one exists) handling such complaints. An employee must file a complaint with the EEOC or FCHR if he or she wishes to file a lawsuit against his or her employer in federal or state court.

The American with Disabilities Act (ADA)

The ADA was passed in 1990 by the U.S. Congress and is designed to prohibit discrimination by private employers, state and local governments and labor organizations on the basis of a person’s recognized or perceived disability. The law extends to all employers with 15 or more employees.

This act protects those workers who are otherwise qualified to perform a certain job but who have a physical or mental impairment that substantially limits a major life activity. It also protects workers if they have a history of such disability or if the employer believes they have such a disability. To come under the protection of the ADA, you must be qualified to perform the fundamental tasks of the job with or without a reasonable accommodation.

Examples of reasonable accommodation include the following:

  • Modified work schedules
  • Supplying certain equipment or devices
  • Providing readers or interpreters
  • Making the workplace accessible and usable

These accommodations and others are required unless the employer can show that providing them would impose an undue hardship or be prohibitively expensive or significantly difficult to implement. An employer can only ask an employee if he or she can perform the job with or without a reasonable accommodation. A medical examination as a condition of employment is only permitted if all other applicants in a particular job category must also undergo an examination.

Age Discrimination in Employment Act (ADEA)

The ADEA protects job applicants and employees who are 40 years of age or older from discrimination in hiring, discharge, promotion, fringe benefits, job assignments, compensation, terms, conditions or other privileges of employment.

Age harassment is also prohibited so long as it is pervasive or creates a hostile or offensive working environment or results in an adverse work decision.

The ADEA applies to all private employers with 20 or more employees as well as to federal, state and local governments. Any inquiry made by an employer about an employee’s age must have a legitimate purpose.

The Florida Civil Rights Act does not limit an age discrimination claim to workers over 40 and only requires an employer to have 15 employees for the state law to apply.

The Family Medical Leave Act (FMLA)

The Family Medical Leave Act applies to private employers with at least 50 employees working within a 75 mile radius and to all public employers regardless of size. To be eligible, an employee must have worked 1,250 hours in the preceding 12-months. Service as a temporary or part-time employee can meet this twelve month requirement.   Covered employees can receive up to 12 weeks of unpaid time off per year for the following:

  • For a serious medical condition
  • To care for an immediate family member (parent, child, spouse) with a serious medical condition
  • For the birth of a son or daughter and to establish a bond
  • For placement of an adopted or foster child with the employee for bonding time
  • To care for an immediate family member on active service duty with certain exigencies (up to 26-weeks if for a serious medical condition)

Serious medical conditions include those that require one overnight stay in a hospital or are incapacitating for more than 3 consecutive days and require ongoing medical treatment; certain chronic conditions along with pregnancy and its associated activities. Intermittent family and medical leave is also required in certain circumstances

There are very specific notification, certification, and other requirements that must be followed by both employees and employers. In addition, all covered employers are required to have a Family and Medical Leave Policy.

Equal Pay Act

Passed in 1963, the EPA was prohibits wage and benefit inequalities based on gender regarding performance of equal work in the same workplace. Most private employers and all federal, state and local governmental agencies are covered by EPA.

Jobs are considered equal if they require the same levels of skill, effort and responsibility under similar conditions. As a defense, an employer can demonstrate that the disparity in wages has a legitimate basis if one worker has more experience or seniority.

The act also requires employers to provide equal employment benefits such as pensions, retirement plans, health and insurance coverage, vacation time, profit sharing and bonuses.

The WARN Act

The Worker Adjustment and Retraining Notification Act, or WARN, was promulgated to require employers of 100 or more employees to provide at least 60 days’ notice of a plant closing or mass layoffs. This would presumably allow affected workers time to adjust to the loss of employment by seeking other work, skills or retraining. A WARN notice is required to be given to salaried and hourly workers, managers and supervisors, and worker representatives including union leaders.

WARN applies to employers with 100 or more employees, unless they have worked less than 6-months in the past 12-months and to workers who work less than 20 hours per week. Any government agency that provides public services is exempt. Also exempt are workers who were hired and were advised that their employment was limited to the duration of the project or life of the facility.

If the mass layoff or plant closing was the result of an unforeseen business circumstance, the requisite notice need not be given.

Penalties include payment of back pay and benefits for the period of violation up to 60 days for each aggrieved employee.

Fair Labor Standards Act (FLSA)

The FLSA was passed in 1938 and provides for minimum wage and overtime pay. Nonexempt employees are entitled to at least the current federal minimum wage and to overtime pay of one and a half times the employee’s regular rate of pay if he or she works more than 40 hours in a work week. Children under 16 who perform nonagricultural work have restricted hours and no one under 18 may engage in work considered too dangerous. For children under 16 engaged in agricultural work, they are not permitted to work during regular school hours or in jobs considered too dangerous.

Employers are required to keep records for each nonexempt employee regarding hours worked and wages earned.

The determination of who is exempt depends on whether an employee meets the specific requirements of a statutory exemption and the Department of Labor’s regulations. Exemptions include the executive, administrative, and professional exemptions. There are also exemptions for some computer professionals and commissioned sales employees. The requirements of an exemption are specific and must be examined carefully before being implemented by employers.

Florida has a higher minimum wage than federal law and changes annually.

National Labor Relations Act

The NLRA is the primary federal law governing the relationship between private employers and unions other than employers who are carries under the Railway Labor Act. The NLRA and regulations promulgated by the National Labor Relations govern union representation campaigns and elections and unfair labor practices by employers and unions. Areas to be aware of include the following:

(1) Election Campaigns

Employers need to seek counsel when dealing with labor unions during a union election campaign. Some matters to be avoided include:

  • Not inquiring about employees’ activities or sympathies during the campaign
  • Not promising to establish a grievance committee if one did not exist before the election campaign began
  • Being careful not to make specific promises while a campaign is pending
  • Not threatening employees with loss of benefits or jobs for supporting the union
  • Treating union sympathizers or supporters more harshly or differently

Management can, however, advise employees that any promises made by the union should be in writing and that the union can obtain for them no more than what management agrees to after good faith bargaining. If the company’s benefits are better than other union and nonunion companies, then such a disclosure can be made.

Also, the company can point out the costs of joining a union and certain disadvantages of belonging to a union. In effect, management is allowed to campaign against the union during the union election campaign so long as there are no threats or discriminatory actions taken. For instance, the company could advise employees that it prefers to deal with them on a personal basis but if a union is authorized, then they cannot present grievances to management confidentially.

(2) Negotiating Union Contracts

If a union is authorized, management and union are required to meet to bargain in good faith over material terms such as wages, hours, vacation time, safety practices and other terms. If an impasse occurs, the union can file a charge of unfair labor practices before the National Labor Relations Board (NLRB). There are certain criteria the NLRB reviews to see if both parties are bargaining in good faith, have been actively participating, have been willing to meet at reasonable times and if representatives with the authority to make decisions are at the negotiating table.

(3) Grievance and Arbitration Proceedings

Grievance and arbitration proceedings are governed by the collective bargaining agreement negotiated by the union and an employer. Usually, the first step in the grievance process is that the employee has a right to discuss the issue with the supervisor with or without a union representative although the union must be informed. The employer cannot settle any grievance regarding wages, benefits, hours or other conditions of employment without the union.

For a discipline case, the employer may be asked to explain and justify its actions and provide all its evidence to the union steward. The steward will have to state the case outlining what had happened, what part of the contract or past practice was violated and the remedy requested.

Arbitration is provided for in collective bargaining agreements. The arbitration process is used when the grievance cannot be resolved through the grievance process. The NLRB has the authority to defer to the arbitration process regarding any unfair labor practices. The NLRB may defer to the decision of an arbitrator if:

  • The collective bargaining agreement provides for final and binding arbitration
  • The employer was willing to process the grievance and arbitrate if necessary
  • The employer waived any time limitations
  • The grievance or charges are likely to be resolved through the grievance/arbitration process

Florida Public Employees

Florida public employees have the right to unionize pursuant to the Florida Constitution and the Florida Public Employees Relations Act.   The Act has specific procedures and requirements regarding union representation, elections, collective bargaining and unfair labor practices. The Public Employees Relations Commission (PERC) was created to administer the Act.

Any unfair labor charge may be filed by an employer, employee or employee organization with PERC. The General Counsel reviews the charges on its face and determines if the facts as stated are sufficient to establish a violation of law. If sufficient, it is assigned to a hearing officer who takes evidence at a hearing and reviews any briefs submitted and proposed orders and issues a recommended order. Exceptions and objections to the order can be filed before any final decision is made.

PERC will review the recommended order, record of the hearing and briefs and issue an order determining if an unfair labor practice was committed.

Labor and employment law is extremely complicated with nuances that the untrained or inexperienced lawyer can easily overlook to the detriment of an employer’s business. Our labor attorneys only represent employers and have years of experience representing them in all the aspects of labor and employment law in state and federal courts and before numerous governmental agencies including the National Labor Relations Board, Equal Employment Opportunity Commission, National Labor Relations Board, US Department of Labor’s Wage and Hour Division and other administrative agencies.

Our attorneys have negotiated with labor unions regarding labor contracts and represented clients pertaining to unfair labor practice allegations and other grievances. Let us represent you in negotiating and drafting labor agreements and in any grievance or arbitration procedures, including if you are a public employer.