At-Will Employment Has Limitations-Even in Florida
This article is focused on the private sector, not government employers.
Florida is an employer-friendly state. Unlike some other states, Florida is a right-to-work state and many of the laws that are in place favor the employer, not the employee. However, there are limitations that every private employer should recognize.
What does at-will mean? Generally, it means that an employer (or an employee) may terminate an employee’s employment for no reason, a good reason or a bad reason so long as the reason does not violate the law. The right of an employer to terminate an employee for any reason is not absolute. For example, an employer would be violating the law if the reason the employer fired the employee was for one of the following reasons :
-filing a workers’ compensation claim;
-reporting illegal activity of an employer to a state agency (commonly referred to as blowing the whistle);
-exercising protected rights, e.g. filing a wage an hour claim for failure to pay overtime;
-filing a discrimination complaint based on sex, race, national origin, veterans status, or age;
-exercising family and medical leave rights;
-participating in concerted activity protected under the National Labor Relations Act
-filing a sexual harassment complaint.
An employee’s at-will employment status can be changed to a termination “for cause” relationship by way of an employment contract or an employee handbook. What does “for cause” mean? Generally, it means that an employer may only terminate the employee if the employee has violated a term and condition of employment. A “for cause” standard favors employees and provides certain protections otherwise not available under the law to them.
Favoritism exists in the work place—a fact that many managers will acknowledge off the record, but not on the record. It is a natural tendency. Employees who are stellar performers are often given special treatment or management is more willing to forgive their shortcomings. On the other hand, managers are often loathe to forgive the shortcomings of an employee whose performance is less than stellar or average which can create problems in certain circumstances. For example, if a stellar performing employee is routinely allowed to violate company policy without repercussion and an average employee is not, the disparate treatment could give rise to an actionable claim against the employer, if employee were to establish that the disparate treatment violated the law or was inconsistent with provision of the employer’s employee handbook.
Fairness in the workplace and fair procedures that are applied equally to all employees will go along way to reduce employee claims and protect employers against liability for wrongful termination. One way to address fairness in the workplace is to establish counseling, discipline and termination procedures and put such procedures in an employee handbook—a practice the author of this article recommends; provided that such procedures are carefully drafted. Poorly drafted counseling, discipline and termination provisions in an employee handbook have been found, by courts, to create a contract of employment which is the reason so many employee handbooks include a disclaimer which provides that the employee handbook is not an employment contract. Is such a disclaimer enough to protect the employer? It depends. For example, if the employer’s employee handbook contains a progressive discipline procedure that implies that an employee will not be terminated until the employee is first given a verbal warning, then a written warning, followed by a suspension prior to termination, then it is unlikely that a disclaimer stating that the employee handbook is not an employment contract would not be given any weight (it would be deemed superseded by the specific language of the handbook) and the provision would be deemed to have created a contract right in favor of the employee. In essence, the above described provision would have the effect of converting the at-will employment relationship to a “for cause” relationship.
Employers should be careful to ensure that their employment agreements and employee handbooks are reviewed by competent legal counsel to ensure that the relationship the employer intends to create is actually the relationship created.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice.
Questions regarding the content of this column or past columns may be emailed to Christina Harris Schwinn email@example.com. Ms. Schwinn is an attorney with the Pavese Law Firm, 1833 Hendry Street, Ft. Myers, FL 33901; (239) 332-2195; fax (239) 332-2243.