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Employers face constant challenges managing their work force

Our law firm understands that whether large or small, employers face constant challenges managing their work force. We also believe that most employers are fully invested in providing a safe, productive, and pleasant environment for their employees. Our law firm has provided employers legal advice involving many employment issues, some which are listed below.

Defending Employee Claims (Wrongful Discharge and Discrimination Claims)

As most employers are aware, Florida follows the employment at will doctrine. Under this doctrine, a private employer may terminate an employee with or without cause. (Different rules apply for employers in the public sector and employers whose employees work under employment contracts.)

While this leaves employers with great latitude in their hiring and firing decisions, employers are not permitted to terminate an employee for exercising certain rights, such as filing a workers compensation claim.

See Fla. Stat. 440.205; Smith v. Piezo Technology and Professional Administrators, 427 So.2d 182 (Fla. 1983). In addition, both Florida state law and federal law prohibit employers from terminating an employee (or taking other adverse employment actions against an employee) because of an employee’s race, religion, gender, disability, ethnicity, age and other protected characteristics.

See Florida Civil Rights Act of 1992, as amended, Fla. Stat. 760.01 et seq. (2001); Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000(e) et seq.; 42 U.S.C. 1981; Age Discrimination in Employment Act of 1967, 29 U.S.C. 623; The Americans with Disabilities Act, 42 U.S.C. 12111.

Our firm has defended employers in actions brought by current and former employees alleging that the employer’s actions violated one of the above state and/or federal laws. It is important that an employer take prompt action in defending these types of claims, whether the claim is made on the agency level (described below) or in the state or federal courts. Our law firm has experience in defending employers against these types of claims on both levels.

EEOC/FHRC Representation

Employees who seek to file a lawsuit under the discrimination statutes first must go through an administrative process before proceeding to the courts. The agencies charged with enforcing these statutes are the Equal Employment Opportunity Commission (EEOC) and the Florida Human Relations Commission (FHRC).

Our firm has defended employers through all stages of the EEOC and FHRC’s procedures, including responding to a charge of discrimination, assisting the employer during the agency’s investigation, and representing the employer in mediation and administrative hearings.

Note: As with any type of claim, an employee must meet certain deadlines in order to bring his or her claim before the agency (and the court). It is important that employers are aware of these deadlines as many times such a claim is made too late and the claim can be dismissed early on.

Pre-litigation Counseling

Sometimes an employee who believes he or she has been treated unlawfully will send a demand letter to an employer. In other situations, the employee may informally approach the employer with such a demand. Under either circumstance, the employer should take specific steps in responding to the employee’s demand.

Our firm has experience representing employers who have received demands from former and current employees. If responded to promptly and thoughtfully, employers can often avoid litigation.

Compliance Counseling (State and Federal Employment Laws)

Employers are constantly presented with questions and circumstances that implicate state and federal employment laws. Sometimes these situations can be resolved without the need for legal counsel. In other circumstances, an employer’s interests are better served by seeking legal advice. Our firm has experience in advising employers in most areas of employment law, including but not limited to:

  • Background Checks. (Fair Credit Reporting Act, 15 U.S.C. 1681a et seq.)
  • Covenants Not to Compete. (Fla. Stat. 542.335)
  • Disability Issues. Reasonable Accommodation Requirements, Responding to Requests for Accommodation (The Americans with Disabilities Act, 42 U.S.C. 12111)
  • Discrimination and Harassment Issues. (Florida Civil Rights Act of 1992, as amended, Fla. Stat. 760.01 et seq. (2001); Title VII of the Civil Rights Act of 1964 as amended, 42 U.S. 2000(e) et seq.; 42 U.S.C. 1981; Age Discrimination in Employment Act of 1967, 29 U.S.C. 623)
  • Drug Testing. (Florida Drug-Free Workplace Act, Fla. Stat. 440.101 and 102 (2004), Florida Public Sector Drug-Free Workplace Act, Fla. Stat. 112.0455, Omnibus Transportation Testing Act of 1991, 49 U.S.C. 31306, Federal Drug-Free Workplace Act of 1988, 41 U.S.C. 701)
  • Employee Benefits and Benefit Plans (ERISA and COBRA). (The Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq., The Consolidated Omnibus Budget Reconciliation Act of 1986, 29 U.S.C. 1161, et seq., Florida’s Mini-COBRA, Fla. Stat. 627.6675)
  • FMLA Requests. (Family and Medical Leave Act, 29 U.S.C. 2601 et seq.)
  • Whistleblower Claims. (Florida Private Sector Whistle-Blower Act, Fla. Stat. 448.101- 448.105; Florida Public Whistle-Blower’s Act, Fla. Stat. 112.3187)
  • Worker’s Compensation Retaliation Claims (Fla. Stat. 440.205)
  • Workplace Safety Issues. (The Occupational Safety and Health Act: 29 U.S.C. 651 et seq.)

EEO Training for Supervisors and Employees

All employers should provide a mandatory training program to inform supervisors and employees about (a) the state and federal discrimination and harassment laws; (b) the employer’s nondiscrimination and harassment policies; and (c) the employer’s procedures for reporting discrimination, harassment, and other workplace problems.

Providing mandatory training on these topics reduces the likelihood that employees and supervisors will engage in such behavior and also provides a potential shield for employers who later may face charges of discrimination and/or harassment.

Our firm can provide training sessions for employees and supervisors in an informative and even entertaining environment. We have learned that it is only in a nonthreatening setting that real learning on these topics is achieved.

Internal Investigations

Our firm can provide confidential and discreet internal investigations for employers confronted with the following problems:

  • Harassment complaints
  • Discrimination complaints
  • Theft or fraud
  • Violation of confidentiality agreements
  • Violation of employer policies

Audit of Employee Policies and Practices

An employee handbook sets the terms and conditions upon which an employer’s relationship with its employees is governed. Specifically, it spells out the rules that it expects its employees to follow and explains the benefits those employees expect to receive. In some jurisdictions, an employee handbook may be construed as an employment contract. Given the effect this document can have on the employer-employee relationship, it is very important that the policies contained therein are compliant with federal and state employment laws. Our firm can audit an employer’s existing employee handbook and/or create an employee handbook tailored towards an employer’s operation.

Enforcing Non Competition Agreements

For some time, Florida has recognized the right of employers to protect their business interests, including the right to insist that employees sign covenants not to compete. In Florida, the laws governing these agreements have undergone three significant changes in the last 20 years.

  • 1953- 1990. In 1953, the Florida legislature passed Fla. Stat. 542.12. This statute allowed non compete agreements to stand so long as the time period and geographic component of the restriction were reasonable. This statute remained the law until 1990, when it was amended.
  • June 28, 1990 – 1996. The 1990 amendments effected several changes to the law of non compete agreements in Florida. See 542.335 (1990). First, it eliminated a presumption that existed under the 1953 statute, that a breach of such an agreement would cause irreparable injury to an employer. The 1990 amendments provided that such a presumption only could be established in the following circumstances: (1) the use of trade secrets; (2) the use of customer lists; and (3) direct solicitation of existing customers.
  • July 1, 1996 to present. In 1996, the Florida legislature made additional changes to the law of non competes. See Fla. Stat. – 542.335. Under the current law, a non compete agreement can only be enforced where an employer can show: (1) the existence of a legitimate business interest, and (2) that the restraint contained in the agreement is “reasonably necessary”. See Fla. Stat. 542.335(1)(b), 542.335(1)(c)-(d).

There has been a significant amount of litigation over both the first and second prongs of this test. Not surprisingly, these agreements are very heavily litigated in the state courts.

Our firm can draft enforceable covenants not to compete that are tailored to meet an employer’s business needs. Our firm also can help employers obtain injunctive relief to enforce covenants not to compete.

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