Lisa Esposito, Tampa Employment Lawyer


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FAQ Employment Law Questions

Employment Law:
Employment law is a well-established body of statutes and judicial decisions covering all rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees.  It covers a wide range of legal issues, ranging from employment discrimination to matters involving wages and workplace safety.  Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

Employee Rights:
All employees have basic rights arising from both state and federal laws.  Some of these rights include:  the right not to be subjected to discrimination on the basis of race, national origin, skin color, gender, pregnancy, religious beliefs, disability, age, marital status, and in some locations sexual orientation; the right to a workplace free of harassment (but it must encompass a protected category such as sex or national origin); the right to be paid at least minimum wage, as provided by federal or state law; the right to overtime wages, as provided by federal or state law; the right to a safe workplace and the right to take leave for one’s serious medical condition or to care for a family member's serious medical condition, following the birth or adoption of a child, or in some instances, due to a family member’s active duty deployment.

Employment Discrimination:
Discrimination generally occurs when an employee is intentionally treated differently because of race, color, religion, national origin, disability, gender, age, marital status, and in some locations, sexual orientation.  Employment discrimination claims may be prosecuted under various state and federal statutes.  Even if the employee’s evidence is sufficient to show discrimination, an employer may be able to justify a particular job action by demonstrating that such treatment arose out of business necessity, or that a legitimate job qualification required consideration of factors that had an unintentional discriminatory effect.  When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer’s justification, was the true reason for the action.

Age Discrimination:
It is unlawful for an employer, employment agency or labor union to discriminate in employment on the basis of age.  This includes refusing to hire an individual or firing an employee.  It also includes an individual’s compensation, the terms, conditions, and privileges of his or her employment, and all employee benefits.

Disability Discrimination:
The Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 and the Florida Civil Rights Act (FCRA) protect individuals with disabilities from employment discrimination.  An individual with a disability is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a record of having such a physical or mental impairment, or is regarded as having such impairment.  The term is broadly defined to include any physiological, mental or psychologically-based impairment, but it does not include mere physical characteristics or cultural, environmental, or economic impairment—the impairment must cause a substantial limitation to a major life activity.  Temporary conditions, such as a broken arm or the flu, would not be considered substantial limitations amounting to a disability entitled to statutory protection.

Wrongful Termination:
Termination of employment cannot be classified as "Wrongful Termination" unless it is in violation of some fundamental public policy, as set forth in a state or federal statute, regulation or constitutional provision.  Examples of Wrongful Termination include situations where:

Sexual Harassment:
Sexual harassment is any unwanted and unwelcome sexual behavior.  It involves a broad range of conduct, including such verbal harassment as gender or sexually derogatory comments, explicit sexual comments and descriptions of sexual exploits, leering or requesting sexual favors.  The term also describes physical harassment, ranging from inappropriate touching to outright sexual battery. In order to be classified as illegal the conduct in question must be unwelcome, pervasive, severe and offensive to the victim.

Sexual harassment is a form of gender discrimination, prohibited in employment settings under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act.  Title IX of the 1972 Education Act makes sexual harassment in schools or other educational settings unlawful.  The Federal Fair Housing Act also provides protection against sexual harassment, and most states have enacted legislation making it unlawful.

Overtime Compensation:
Under both state and federal law, employers are required to pay additional compensation to eligible employees who work more than forty hours during any work-week.  For every hour over forty hours in any given work-week the employer must pay the eligible employee at least one and one-half times the employee's ordinary hourly rate.  One must be an eligible employee to be entitled to overtime, as well as work for an employer covered by the federal and/or state laws.

Restrictive Covenants - Non-Competition Agreements - Non-Solicitation Agreement and Confidentiality Agreements:
Restrictive covenants restrict a person’s employment.  Non-competition agreements are provisions in writing which restrict the activities of an employee/contractor during and/or after leaving the service of an entity.  Non-solicitation agreements restrict an employee/contractor from soliciting the services or employment of an employee/contractor of an entity or its clients.   Confidentiality agreements restrict the use or potential use of confidential, proprietary or trade secret information.  Courts will require the restrictions to be narrowly tailored to protect a legitimate interest of an entity such as its clients or company goodwill.  The restrictive covenant must not unnecessarily and unreasonably interfere with trade.

The Courts can decline to enforce or restrict “unreasonable” restrictive covenant agreements.  A non-competition clause in the agreement restricting an auto mechanic from working at another auto shop will likely be rejected by the court as unreasonable.  The agreement also must be reasonable in duration.  A non-competition agreement barring the sales manager of a used car lot from engaging in the used car business for the rest of his or her life, or for 50 years, would probably be denied enforcement, while one with a 2-year term might be enforced.  Non-competition agreements must be reasonable in the area covered.  If the agreement precludes the sales manager from engaging in the used car business anywhere in the United States it would probably be denied enforcement as unreasonable, as written, but a court could find the restriction valid, just restrict the geographical scope. 

Whistleblower Claims:
Whistleblower Claims involve employer retaliation, sometimes to the extent of Wrongful Termination, against an employee who reports or complains about unlawful conduct of another employee or of management itself to government authorities, to the employer and in certain other circumstances.  In some circumstances, the whistleblower must have complained in writing.   It is illegal for an employer to retaliate against a “whistleblower.”

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