Employment Law Basics

Employment  at Will

Florida — like 48 of the 50 states — is an “employment at will” state.

This means that the employee can quit a job for any reason, or no reason at anytime.

The other side of the coin, is that the employer can fire an employee for any reason, or no reason, so long as the employer is not discriminating against the employee based on your sex, race, color, national origin, religion, marital status, sexual orientation, disability, age, or any other characteristic protected by law.

Overtime

Unless you are an “exempt” employee under the wage and hour laws, you must be paid overtime at time-and-one-half your regular hourly rate for all hours worked in excess of 40 per week.  You cannot be given in “comp” time  instead of  overtime pay.  Exempt employees are paid by salary AND their jobs either require graduate degrees, involve supervising other employees, or make significant decisions in the running of a company or department.

Unemployment

After completion of a 90 day probationary period, an employee who is let go other than for misconduct, or who resigns with good cause attributable to the employer, is entitled to receive unemployment benefits.  If you are denied, you should appeal, as often the denial was based on incomplete information from the employer.

Discrimination and Harassment

If you are being discriminated against or harassed at work based upon your membership in a protected class (your sex, race, color, national origin, religion, marital status, sexual orientation, disability, age, or any other characteristic protected by law) you can get help by contacting the Equal Opportunity Employment Commission (EEOC) or by contacting an attorney.  Remember, not all unfair treatment is considered discrimination.  It must be based on your membership in a protected class, and not be simple favoritism or the fact that your boss is just an unpleasant or unfair person.

FAQ

Frequently Asked Questions

about Employment Law

Religion in the workplace . . .

1.  Can my employer require me to work on the Sabbath?

Answer:  It depends.  Employers are required by law to make a reasonable accommodation for sincerely held religious beliefs of their employees.  If your employer can adjust your schedule so that you can be off work on the Sabbath without causing an undue hardship on the company or other employees, your employer is required to do so.  Suggest ways this can be done, such as a system for swapping shifts with other employees.  Understand, however, that the law only requires the employer to make a reasonable effort to accommodate your request.

2.  What should I do if I believe I am being discriminated against based on my religious beliefs?

Answer:  The first thing you should do is discuss the issue with your employer.  Many businesses – especially smaller employers who don’t have an HR department – may be unaware of their obligations under the law. If this doesn’t work, contact an attorney, or the Equal Employment Opportunity Commission (EEOC).

3.  Can I discuss my religion with co-workers?

Answer:   As long as both of want to engage in a discussion about religion – and it is not interfering with doing your work or disturbing other employees – then it’s fine to discuss religion. Be careful, however, not to pursue the topic further if the other employee seems uncomfortable, expresses a lack of interest, the conversation becomes argumentative, or the other employee asks you to stop.  If you are the one who starts to feel uncomfortable, make sure you let the other employee know that you’d prefer the discussion not continue.

4.  A coworker keeps pressuring me to come to her church, and seems to be trying to convert me to her religion.  What should I do?

Answer:  First, politely let her know that while you appreciate the invitation, you have your own beliefs and are not interested in changing your religious affiliation.  Then, if she persists, you may need to discuss the problem with your supervisor or manager.

5.  My employer complied with my request not to be scheduled for work on the Sabbath, but a co-worker has been making comments about me getting special favors, and it makes me feel uncomfortable.  Do I have to put up with this?

Answer:  No. It is illegal for an employer to allow anyone else to harass you or ridicule you in the workplace based on your religion.  The law does not protect you from an occasional off-hand comment, but it does protect you from harassment that is “severe and pervasive” – in other words, the worse the comments are and the more frequently they occur, the more likely it is that you would have a legal claim against your employer if they allow them to continue.  If your coworker persists after you indicate these comments are not welcome, report it to your supervisor or HR.  If the company does not take appropriate action, contact the EEOC or an attorney.

Wage and Hour laws . . .

7.  My employer said that because I am paid by salary I’m not eligible for overtime.  Is that correct?

Answer:  In addition to being paid by salary, you must meet other criteria to be “exempt” from overtime pay under the wage and hour laws.  Generally, to be exempt you must either have an advanced degree (4 years of college plus graduate school),  supervise 2 or more employees, or make significant decisions in the running of the business (not the production of goods or services the business provides to its customers). If you don’t fit in any of these categories, then it is likely that you are not exempt and must be paid overtime.

8.  My employer wants to pay me as an independent contractor (1099) instead of an employee.  Can they do this?

Answer:  It depends.  There is a 20-factor test used by the IRS, the Department of Labor and other government agencies to determine whether you are properly an independent contractor.  Basically, if the employer exercises control over when and where you do your work, provides training and tools, and restricts you from working for other companies at the same time, you are likely an employee, not an independent contractor.  You will need to consult with an attorney to be sure.

Termination of Employment . . .

9.  I got fired for breaking a rule at work, but I can prove I didn’t do anything wrong.  Can I sue the company and force them to rehire me?

Answer:  No.  Florida (like 48 of the 50 states)  is an “employment at will” state, so even if you were wrongly accused, you have no right to get your job back unless you were the victim of illegal discrimination.

10.  If I quit or am fired, am I entitled to be paid for my unused vacation and sick leave?

Answer:  There is no law that requires your company to pay you for unused vacation or sick leave.  Some companies have a policy on this.  You should check your employee handbook.

11.  If I get fired, am I entitled to unemployment compensation benefits?

Answer:  If you were fired without cause or for poor performance, then generally, yes, you will be entitled to get unemployment compensation benefits.  You will be disqualified, however, if you were fired for misconduct. For example, if your job is making sales calls and you were fired because you didn’t bring in enough sales, you qualify for unemployment.  However, if you were fired because you didn’t make the required number of calls, then you could be disqualified, particularly if you had been warned in the past.

12.  Is my former employer allowed to give me a bad reference?

Answer:  Florida law protects employers giving out references, so long as they do not maliciously make false statements about you.  They are allowed to give their opinion – even if it’s negative – and can make factual statements about you as long as they aren’t knowingly false.

Time Off . . .

13.  Is there a law that requires my employer to give me a 15-minute break in the morning and in the afternoon?

Answer:  No.  There is not even a law that requires your employer to give you time off for lunch, although most do.

14.  Can my employer fire me for missing work for illness if I provide a doctor’s note?

Answer:  There are no laws that entitle you to time off for illness, unless the company has 50 or more employees in a 75-mile radius of where you work.  In that case, the FMLA would apply – 12 weeks of unpaid leave for a serious health condition (you or immediate family member), or the birth, adoption or fostering of a child. Most companies, however, do have a sick leave or PTO (paid time off) policy.  If you have a disability, you might be entitled to time off as a reasonable accommodation under the ADA (Americans with Disabilities Act).

Hostile Work Environment . . .

15.  My boss screams at me and co-workers constantly, and is very belittling.  Can I sue the company for having a hostile workplace?

Answer:  A “hostile workplace” is a legal term that only applies if the hostility is directed to you based on your membership in a protected class – for example, race, religion, sex, or age (over 40). If you boss is just abusive in general, then the law doesn’t get involved, unless, of course, he or she is physically threatening you, in which case you could make a criminal complaint of assault.

EEOC FACT SHEET

 Religious Discrimination

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Facts About Religious Discrimination

Title VII of the Civil Rights Act of l964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer (see also 29 CFR l605). A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.

Employers generally should not schedule examinations or other selection activities in conflict with a current or prospective employee’s religious needs, inquire about an applicant’s future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can show that not doing so would cause an undue hardship.

An employer can claim undue hardship when asked to accommodate an applicant’s or employee’s religious practices if allowing such practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation. Undue hardship also may be shown if the request for an accommodation violates the terms of a collective bargaining agreement or job rights established through a seniority system.

An employee whose religious practices prohibit payment of union dues to a labor organization cannot be required to pay the dues, but may pay an equal sum to a charitable organization.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on religion or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Religious Discrimination & Work Situations

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Religious Discrimination & Harassment

It is illegal to harass a person because of his or her religion.

Harassment can include, for example, offensive remarks about a person’s religious beliefs or practices. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Religious Discrimination and Segregation

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference.

Religious Discrimination & Reasonable Accommodation

The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Accommodation/Dress & Grooming Policies

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

Religious Discrimination & Reasonable Accommodation & Undue Hardship

An employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Religious Discrimination And Employment Policies/Practices

An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.

http://www.eeoc.gov/eeoc/publications/fs-religion.cfm

EEOC Tampa Field Office

501 East Polk Street, Suite 1000

Tampa, FL  33602

1-800-669-4000

 

 

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