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The Myth of the At-Will Employment State

Law Office of Patrick K. Elliott > The Myth of the At-Will Employment State

Although Florida is an at-will employment state, even at-will employees can’t be fired for discriminatory reasons, in retaliation for reporting harassment, discrimination, reporting or refusing to participate in your employers unlawful conduct, because they exercised a legal right, or other wrongdoing.

Florida law provides comprehensive workplace protections for employees, some of which govern how, when, and under what circumstances an employee may legally be terminated.

If this has happened to you, then you should contact a Florida employment lawyer to ensure your rights are protected.

Protect Your Rights
If something doesn’t seem right at work, tell our lawyers about it. Our consultations are free and confidential for potential clients.

  • Situations Where You Should Contact Legal Counsel:
  • Your employer made statements or actions that suggest you were fired for discriminatory reasons.
  • You recently revealed that you have a protected characteristic (for example, that you have a disability or that you are pregnant).
  • You recently filed a complaint of discrimination or harassment.
  • You recently complained of other workplace wrongdoing, such as workplace hazards or shoddy accounting practices.
  • You recently exercised a legal right, such as voting or taking Family and Medical Leave.
  • Your firing changed the demographics of your workplace (for example, because you are the only woman in your department or the only manager who isn’t white).
  • You are just shy of vesting or receiving certain benefits, such as vesting stock options or collecting retirement money.
  • You have an employment contract limiting the employer’s right to fire you.

If any of these situations have happened to you, then you may have been wrongfully terminated and could be entitled to monetary damages for lost wages and emotional distress . Florida wrongful termination lawyer Patrick Elliott can help you sift the facts, sort out your claims, and decide how to proceed.

Wrongful Termination Claims
The most common types of wrongful termination claims are employment discrimination claims. Indeed, both federal law and Florida law prevent discrimination in the workplace. Employees cannot be fired merely due to an employer’s discriminatory hostility towards employees who are members of certain protected classifications. Additionally, employment discrimination laws also protect employees who blow the whistle on their employer’s discriminatory acts.
• Age, if the employee is over the age of 40;
• Race, color, national origin, or ancestry;
• Religion;
• Physical or mental disability;
• Pregnancy;
• Medical condition;
• Genetic information;
• Marital status;
• Sex, gender, gender identity, or gender expression;
• Sexual orientation; or
• Military or veteran status.
Your employer cannot terminate you simply because for any of these characteristics apply to you, nor can your employer cannot create a work environment that puts you at a disadvantage simply because you belong to a protected class.
Likewise, your employer may not harass you because you’re a member of a protected class for being part of that class. And the employer may not create or maintain a hostile work environment that leaves the class member with no option than to quit the job.
Employment Contracts Sometimes Play a Role
Of course, not all employees are considered “at-will.” Some employees have contracts that limit their employer’s ability to fire them. In these situations, employees might be able to claim that they were wrongfully terminated merely because their employer lacked a good reason to fire them.
A contract can also limit the employer’s ability to fire the employee if it requires the employer to have a good reason for the termination. For example, the employment contracts of company executives commonly have provisions that limit the circumstances under which they can be fired.
As mentioned above, employers are usually allowed to fire employees for any lawful reason. But they are prohibited from firing employees if they are motivated by an unlawful reason.
One of the most common grounds for a wrongful termination claim arises when the employer has a discriminatory intent in firing the employee. In Florida, there are a variety of laws that prohibit discrimination in the workplace.
Discrimination Claims Generally
Race Discrimination
Racial discrimination in the workplace occurs when employers treat individuals differently because of their race or color. Florida and federal law prohibit race discrimination in the workplace. Unfortunately, incidents of race discrimination can take many forms.
For example, racial discrimination happens when an employer:
· intentionally targets a member of a racial group;
· Enacts a seemingly neutral job policy that tends to exclude certain persons for a reason that is not job-related.
· Additionally, your employer is prohibited from engaging in discrimination based upon stereotypes, assumptions about abilities or traits, or the performance of individuals of certain racial groups.
· You’re subject to different terms and conditions of employment.
Immigration-Based Discrimination
All persons, regardless of their immigration status, are protected by Florida’s employment laws. That does not mean, however, that immigration-based discrimination is unlawful. It merely means that non-citizens are protected against discrimination to the same extent as United States citizens.
The employer’s ability to investigate their employees’ legal status is limited, however. They may not request more or different documents than are required by the federal government. Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.
And, if the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination.
Additionally, employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right.
A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfill the business purpose it is supposed to serve.
Employers May Not Engage in Unlawful Retaliation
All Florida employers have legal obligations they must follow. When they violate the law in some way, employees may wish to complain about or report the employer’s wrongdoing. In many cases employees are protected from being punished or fired if they do so.
This section explores the different kinds of retaliation that may result in a valid claim of wrongful termination.
Reporting Unlawful Activities
In Florida, if an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government. The employee also has a right to report that violation to an employee that supervises them.
Employers are prohibited from punishing or firing employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor.
Along these same lines, an employer cannot prohibit employees from working with or testifying before any government agency that may be investigating or prosecuting the employer for legal violations.
Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.
An employer who discharges an employee for reporting unlawful activities commits wrongful termination.
Discrimination and Harassment Complaints
Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment.
An employer who fires an employee for opposing unlawful discrimination or harassment has committed wrongful termination.
Complaining About Unpaid Wages
Florida law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner.
Additionally, employees have a right to complain to their employer that they are owed unpaid wages. Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages.
Discussing Income
Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone.
Complaining About Unlawful Work Conditions
Employers are prohibited from firing or punishing employees who complain about workplace safety issues. Employers are also prohibited from firing or punishing employees who reporting an issue of employee safety or health to a government agency. This means that employees cannot be fired for filing an OSHA complaint.
Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard. Furthermore, Florida employees are protected if they have to testify in a court proceeding about dangerous work conditions.
Discussing Work Conditions
Employees have a right to discuss their work conditions – as long as those discussions don’t involve matters that may be trade secrets or legally-protected.
In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people. Again, this rule is limited to information that is not proprietary, secret, or otherwise legally-protected.
This rule is mainly intended to protect employees who complain or discuss potentially unsafe or unlawful working conditions.
Requesting a Reasonable Accommodation
Several types of employees have a right to receive a reasonable accommodation from their employer. A reasonable accommodation is an adjustment to the employee’s work environment or job duties that can enable the employee to perform the essential functions of a job in suitable conditions.
Common examples of situations in which a reasonable accommodation may be required include the following:
Employees with disabilities often have a right to work under different conditions than other employees.
They may also have a right to time off of work, as an accommodation for their disability.
Religious employees may have a right to an accommodation of their religious practices and observances.
Employees who have difficulty reading may have a right to a reasonable accommodation.
Employers generally cannot retaliate against employees in these situations for requesting an accommodation. This means that an employer will usually commit wrongful termination if they discharge an employee for requesting or requiring a reasonable accommodation.
Filing a Workers’ Compensation Claim
In Florida, workers’ compensation benefits are designed to provide financial compensation and medical care to employees who suffer an on-the-job injury.
Under Florida law, it is unlawful for an employer to retaliate against an employee because they filed, or attempted to file, a valid claim for workers’ compensation benefits. Section 440.205 of the Florida Statutes state:
440.205 Coercion of employees. – No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.
The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury. In general, an employer commits wrongful termination if they fire an employee in retaliation for filing, or attempting to file, a workers’ compensation claim.
Employers May Not Fire Workers for Taking Protected Time Off
There are many situations in which employees have a legal right to take time off from work. When an employer fires an employee for taking that time off, they usually will commit wrongful termination.
Family and Medical Leave
Many employees in Florida have a right to take up to 12 workweeks of unpaid family or medical leave per year. When an employee has a right to take family or medical leave, the employer is prohibited from firing them for exercising it.
Family or medical leave can be taken for any of the following reasons:
To bond with a child who was born to, adopted by, or placed for foster care with, the employee;
To care for the employee’s parent, spouse, or child who has a serious health condition; or
Because the employee is suffering from a serious health condition rendering them unable to perform the functions of their job.
Beginning on January 1, 2018, the eligibility requirements for family or medical leave depend on the reason why the leave is being taken.
Leave for Serious Health Conditions
If the employee is taking medical leave to care for their own serious health condition or the serious health condition of a parent, their spouse, or their child, the following requirements must be met:
The employer must have at least 50 employees within 75 miles of the employee’s worksite;
The employee worked more than 12 months for the employer prior to the date that the period of leave is taken; and
In the past 12-month period, the employee worked at least 1,250 hours for the employer.
A serious health condition, for these purposes, is a physical or mental condition that involves either of the following:
Inpatient care in a hospital, hospice, or residential health care facility; or
Continuing treatment or continuing supervision by a healthcare provider.
Inpatient care means a stay in a hospital, hospice, or residential health care facility, as well as any subsequent treatment in connection with that inpatient care.
Child Bonding Leave
If the employee is taking family leave to bond with a new child after the child’s birth, adoption, or foster care placement with the employee, the following requirements must be met:
The employer must have at least 20 employees within 75 miles of the employee’s worksite;
The employee worked more than 12 months for the employer prior to the date that the period of leave is taken; and
In the past 12-month period, the employee worked at least 1,250 hours for the employer.
If all three requirements are met, employers will usually be required to provide up to 12 weeks of family leave to eligible employees.
Maternity Leave
New mothers and fathers have a right to take the family and medical leave discussed above. That leave is usually taken to bond with the new child. But pregnant mothers also have a right to take a different kind of leave: pregnancy disability leave.
Employees that are disabled by their pregnancy, by childbirth, or a related medical condition have a right to take up to four months of leave from work. This leave can be take in addition to the 12-weeks of bonding time described above, but it only continues for as long as the employee is disabled.
To be eligible for pregnancy disability leave, the employee must work for an employer that regularly employs five or more employees.
A woman is disabled by her pregnancy if, in the opinion of her doctor, she is unable to perform any one or more of the essential functions of her job because of her pregnancy. A woman might also be disabled by her pregnancy if she suffers from one or more of the following conditions:
Severe morning sickness,
Prenatal or postnatal care,
The need for bed rest,
Gestational diabetes,
Pregnancy-induced hypertension,
Preeclampsia,
Post-partum depression,
Loss or end of pregnancy, and
Recovery from loss or end of pregnancy.
The common factor with each of these examples is that the pregnancy-related disability has limited a major life activity.
If an employee has a legal right to take pregnancy disability leave and they are fired for taking it, the employee probably has a claim for wrongful termination.
Sick Leave
Lactation Breaks
Employers can commit wrongful termination by firing an employee who has requested or expressed a desire to take a lactation break.
A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require Florida employers to provide lactation breaks.
The right to a lactation break does not apply if it would seriously disrupt the operations of the employer. This exception is hard to meet, however, and employers should be cautious before invoking it.
Time Off for Military Leave
Employees who join the military generally have a right to take up to five years of leave while they serve. When they return, they have a right to prompt reemployment with the employer.
An employer may not punish or fire an employee for joining the military or requiring less than five years of time off to serve. Additionally, when the employee returns from leave, the employer may not fire the employee without cause for one year (if the employee’s period of service was more than 180 days).
Time Off for Jury Duty
As part of our civic duty, many Florida employees are required to participate in jury duty and employees selected for jury duty are often legally-required to attend court proceedings. As such, employers are prohibited from firing or in any manner discriminating against employees who need time off to serve on a jury.
Pursuant to Section 40.271 of the Florida Statutes:
40.271 Jury service.(1) No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury.

(2) Threats of dismissal from employment for any cause, by an employer or his or her agent to any person summoned for jury service in this state, because of the nature or length of service upon such jury may be deemed a contempt of the court from which the summons issued.

(3) A civil action by the individual who has been dismissed may be brought in the courts of this state for any violation of this section, and said individual shall be entitled to collect not only compensatory damages, but, in addition thereto, punitive damages and reasonable attorney fees for violation of this act.
Constructive Discharge Cases
Employees generally cannot sue their employer for wrongful termination if they voluntarily resign or quit (although they might have other grounds for a lawsuit). This creates a perverse incentive for employers who want to fire employees: they can avoid wrongful termination lawsuits if they can somehow get the employees to quit first.
To combat this problem, courts in Florida have adopted the doctrine of constructive discharge. Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.
In a constructive discharge case, the employee might technically say “I quit,” but the employment relationship is treated as having been ended involuntarily by the employer’s acts, against the employee’s will. Courts will therefore treat the resignation as a firing.
To amount to a constructive discharge, the employer must create a work environment that is so intolerable that any reasonable employee would resign rather than endure such conditions. Put another way, the employer’s actions or the conditions of employment must effectively leave the employee with no reasonable alternative except to quit.
This test is an objective one. Meaning, it is judged from the perspective of a reasonable person—not from the perspective of the individual employee. And the worker must usually prove that the employer either intentionally created or knowingly permitted the intolerable working conditions.
Making a claim of constructive discharge should only be considered by employees after the employment relationship has ended, to determine whether they have any rights they might have previously overlooked.
Contact a Lawyer
The best time to contact a lawyer is before termination happens, when you suspect that you may be wrongfully terminated in the near future. Unfortunately, wrongful termination isn’t always easy to foresee.
The second best time to contact an attorney is immediately after termination if you know or suspect that you have been wrongfully terminated.
Wrongful termination can have far-reaching consequences, and you may be able to recover if your employer has terminated you for unlawful reasons.
File a Claim or Lawsuit
If the evidence in your case is strong, you may have a right to recover damages against your employer. You might even have a right to get your job back.
The exact procedure will depend on the type of harm you suffered. In some cases, the employee is required to first file an administrative complaint with a governmental agency that explains their employer’s wrongdoing. In other cases, the employee can go directly to court and file a lawsuit.
Keep in mind that the deadline to file a claim or a lawsuit can be short. As such, it is best to act quickly after you have been fired if you wish to stand up for your rights.
Again, discussing your case with a qualified attorney can be a good idea to help you understand: how quickly you must file your claim or lawsuit, which procedures you must follow, and whether your case is strong. Many attorneys are willing to take on wrongful termination cases with no upfront costs.
In the case of wrongful termination, an employee may get compensatory damages, punitive damages, or in some cases, reinstatement to his or her former job.
What are Compensatory Damages?
Compensatory damages are a type of monetary award intended make the employee “whole” again.
This type of damage award can include pay for the employee’s missed wages, back pay for unpaid wages (if any), or other compensation for harm the employee experienced as a result of being wrongfully terminated. Depending on the circumstances, it might also include damage for emotional distress or mental suffering.
This type of award is usually roughly equal to what the employee would have received if he or she had not been fired. It might also include interest on the employee’s award.
Legal Costs
In many cases, employers who lose a wrongful termination lawsuit are required to pay for the legal costs of the employee’s case. Those can include expert witness fees, attorney fees, and court costs.
Punitive Damages
Punitive damages are a type of monetary punishment ordered by the court. On top of quantifiable damages, such as lost pay and legal fees, the court may punish a defendant by making him or her pay additional damages.
Punitive damages are usually only awarded when the defendant did something that was particularly heinous or offensive. They can serve to deter the defendant from committing the same act in the future or deter others who are in similar situations as the defendant from engaging in the same wrongful behavior.
Reinstatement
In some cases, an employee may be able to either get his or her old job back, or a similar position of the same seniority.
This specific remedy, however, is somewhat rare in wrongful termination lawsuits and may not be available or even desirable for the employee. When reinstatement isn’t available due to hostility between the parties, courts will sometimes award front pay—the employee’s projected future earnings.
Now that you understand Florida’s wrongful termination laws, you may be wondering whether you have a decent legal case against your employer. This question is important because, if so, you might have a right to receive additional compensation from your employer.
There are several factors we, as lawyers, look at when determining whether our clients have a strong case. You might have a good case if, among other things, one of more of the following facts are present:
You were terminated because of your age, race, color, or religion.
You were terminated because you were pregnant or needed a medical accommodation during or shortly after giving birth.
You were terminated because you complained or had questions about your rest breaks or meal breaks.
You were terminated because you complained or had questions about your overtime payments.
You were terminated because you complained of sexual harassment.
You were terminated because you complained about an illegal or dangerous practice at work.
You were terminated because you filed a workers’ compensation claim.
If you are the victim of wrongful termination, you may be eligible for backpay, punitive damages, and compensation for emotional distress and suffering.
Protect Your Rights
If something doesn’t seem right at work, tell our lawyers about it. Our consultations are free and confidential for potential clients.
Speak to a Florida Wrongful Termination Lawyer Today
If you believe you were wrongfully terminated from your job, the Law Office of Patrick K. Elliott is here to help. Patrick Elliott will work tirelessly to assist you in your wrongful termination claim Patrick Elliott takes pride in providing effective and aggressive representation for his clients. Call the office today at (800) 563-1409 to determine if you are entitled to compensation. All consultations are provided free of charge and the firm only gets paid if you recover compensation for your case.