What is At-Will Employment in Florida?
"Termination of employment invokes the at-will doctrine, a common law rule declaring that in the absence of a specific agreement of longer duration an employee serves subject to the employer’s will as to the duration of his employment."
Florida is an at-will employment state. This means that there is no official period of time that an employee must be employed by an employer prior to the employee being dismissed . Instead, an employee can be let go at any time, and for any reason. Likewise, an employee can quit their employer for any reason and at any time without reprimand. The rationale behind this law is that both the employee and the employer have an "equal right to terminate the relationship at any time with or without cause." Of course, in reality, there are exceptions to the rules governing employment at will.
Lawful Reasons for Termination in Florida
Notwithstanding the almost universal "employment at will" principle in Florida law, employers and employees still sometimes part ways under terms or for reasons which bring them into conflict with the law. Assuming, of course, that the employee has not signed any agreement which provides for different considerations, an employer may end an employee’s employment whenever that employer wishes to do so.
Legally, however, one must note that grounds for termination include "just cause," a sharp evolutionary departure from the old "terminable at will" premises of the past. See Gonzalez v. Chadderton, 59 So3d 1180 (Fla. 1st DCA 2011) wherein the first district held that an employee whose employment was contingent upon successful completion of a probationary period had no "expectation of continued employment but instead merely an opportunity to continue employment."
Though unlawful discrimination and retaliation are perhaps the most common legal claims which follow severing the employment relationship, employees’ claims against former employers for paying less than the amount agreed upon, for failure to pay commissions, for nonpayment of overtime and other legally regulated payments, breach of contract, violation of covenants not to compete, and wrongful termination in violation of public policy sometimes come into play.
Most often, employers terminate employees for reasons relating to either conduct or performance. In practice, the line between the two categories frequently blurs, but even ignoring the obvious areas of overlap, the following generalizations can be made: Acts of misconduct which justify termination include any "conduct that would impair the employer’s relationships with the employee’s co-workers or its customers, such as dishonesty or incompetence." See Scheck v. Burger King Corp., 756 So2d 162 (Fla. 4th DCA 2000); Wilson v. EEOC, 426 F.2d 416, 419 (5th Cir. 1970). On the contrary, deficiencies in job performance are typically the product of the employer’s lack of responsiveness to the employee’s performance over a period of time. These include factor such as an inability to improve despite the fact that the employee is often commended by others, a circuitous defense when approached about "areas to improve," the failure to be candid, and an inability to take responsibility. The absence of any of these factors can make performance deficiencies a dubious basis for termination.
Prevention of Wrongful Termination
The methods by which an employee can be wrongfully terminated vary from state to state and are subject to federal law. Florida employees who are able to prove that their employer terminated them based on one or more of these circumstances may pursue damages for wrongful termination.
The Seven Protected Categories
Termination based on sex, race, color, ethnicity, pregnancy, origin, or disability is prohibited by state and federal employment laws. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees in the protected categories. Title I of the Americans with Disabilities Act (ADA) 1990 protects disabled workers from being wrongfully terminated. The Florida Civil Rights Act (FCRA) and the Florida Pregnancy Discrimination Act (FPDA) both prohibit discrimination based on sex, race, color, ethnicity, pregnancy, origin, or disability.
Retaliation and Whistleblower Protection
The FCRA makes it a violation to fire an employee who filed a claim against his or her employer under the Act or cooperated in an investigation of a discriminatory practice. The Federal False Claims Act (FCA) makes it a violation to terminate a person who made False Claims Act allegations. Other whistleblower laws exist to protect employees who report unsafe working conditions, OSHA violations and illegal practices. For information on wrongful termination under various federal and state laws, including the Employee Retirement Income Security Act (ERISA) and the Family Medical Leave Act (FMLA), see our Wrongful Termination overview.
What Are the Employer’s Responsibilities When Terminating an Employee?
Procedural Requirements and Obligations of Employers When Terminating Employees
Just because both employees and employers are free to terminate employment "at will" in Florida does not mean that neither has any obligations during the termination process. In fact, Florida law imposed several specific obligations on terminating employers.
Under Florida law, employers must pay employees who are laid off from work or whose employment is otherwise terminated on their next regular payday, unless an individual written agreement exists otherwise. Further, an employer must tender payment through the United States mail to any discharged employee who requests the final payment by mail.
Written reasons for documented terminations of employees are not required under Florida law and are not required to be supplied to the employee at the time of termination; however , properly documenting the reasons for employee terminations is always the best practice for an employer. This can vary by company, but there should be a system in place for documenting the reasons for terminations of employment. This way, regardless of the circumstances of the termination, an accurate history of the reasons for the discharge will be available. Further, if an employee subsequently files an employment discrimination claim, the employer will have documentation to demonstrate that the termination occurred for legitimate nondiscriminatory reasons.
Severance Agreements and Packages
Severance agreements are meant to preserve the rights of the employer and the employee after the end of the employment relationship. They are not always golden parachutes given to high ranking employees. Instead, they often accompany the laying off of a number of employees and offer some pay and benefits to encourage people to release the company from any claims against it.
A typical severance agreement will include a release of any claims that the departing employee may have against the employer. In exchange for this waiver of future claims, the employer agrees to provide specified severance benefits. For example, the employer may agree to a severance payment calculated as a multiple of the employee’s most recent salary, plus unused vacation. The amount of severance is generally negotiable between the employer and individual employee. In-house counsel should be mindful that employee benefit plans (like severance plans) are almost always subject to ERISA.
If the employer has a lay off policy or practice which states that employees will be paid for unused vacation when the relationship ends, the employer must comply with that policy. For additional details about wage disputes, see our post on unpaid wages. It is also good practice to consider offering severance to employees who are leaving employment voluntarily, such as for a new position, to move to another state, or to retire. Though this type of severance may not be required by law, it will help preserve good will and may avoid a dispute over unpaid wages in the future.
Employers should be mindful of the following issues when drafting a severance agreement:
• If the agreement includes a general waiver of all possible claims, the employer should verify that such a waiver is lawful and complies with applicable law.
• Companies who lay off more than one employee at a time need to be mindful of federal and Florida laws which require them to offer severance benefits in a way that does not unlawfully discriminate.
• Severance agreements that include releases of age discrimination claims must comply with the Older Workers Benefit Protection Act (OWBPA). Among other requirements, it requires that a release of OWBPA claims must be in "clear and understandable" language, and include the 21 day review period and 7 day revocation period.
• Severance payments for an employee’s accrued, unused vacation at the time of termination of employment are considered wages under Florida law and should be paid regardless of whether the employee will be receiving other forms of severance pay.
• Employers should avoid requiring employees to keep the terms of a severance agreement confidential. Confidentiality provisions can run afoul of both the NLRA and the Florida Public Policy.
Additional Resources for Employees Facing Termination
A number of resources exist for employees in Florida who have been terminated or who are subject to a lay-off. Among these resources are legal aid services, unemployment benefits and career counseling services. In Florida, a lawyer referral service matches people with local, qualified attorneys. The Florida Bar maintains the statewide referral service and provides the public with the list of approved attorneys. Tampa and Orlando both have their own local bar associations. Public legal aid services provide free legal assistance for Floridians who meet qualifications related to income and other factors. The statewide Florida Bar website includes information on 25 legal aid services in Florida . The Department of Children and Families provides information on how to apply for food and cash assistance, as well as how to apply for Medicaid and find low-cost health care. Florida’s unemployment benefits program, called Reemployment Assistance, provides temporary financial assistance for unemployed Floridians. The state Department of Economic Opportunity website contains information on how to apply for unemployment benefits. The CareerSource Florida website provides an overview of all workforce services in Florida, including help with job searches and unemployment. The non-profit organization CareerSource raises funds to help provide access to career services. A wide range of services is available for individuals who are laid off or have lost jobs, as well as for job recruits.