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A few Florida employee rights to keep in mind

The laws and regulations which govern employers are always evolving, and it is important for employees to be aware of their rights.

When people relocate, it is especially difficult to keep up on employment law. Everything that is legal in California, for example, is not always legal here in South Florida. From wages and overtime, to the proper way to take breaks, there are many legal issues in the workplace that are often overlooked.

Those who have experienced discrimination, sexual harassment or retaliation in the workplace should surely seek legal recourse. But, there are many less obvious issues as well that may require employment law advice or representation.

The following are a few legal issues that may arise in the workplace:

Misclassification: In this economy, more and more people are taking jobs as independent contractors rather than as employees. However, it is important to know that these two titles carry significant differences when it comes to taxes, withholdings and wages. The distinction is national, and the most evident standard is whether the employer provides the employee with the materials and tools to do the job. If so, the worker is most often (but not always) an employee, not a contractor.

Overtime pay: The federal Fair Labor Standards Act requires employers to pay overtime pay for any hours worked in excess of 40 hours per week. Overtime pay must be at least one and one-half times an employee's regular rate of pay. Some states have daily overtime limits, wherein employees who work more than a certain number of hours in one day are paid overtime, but Florida does not. On the contrary, in California, you must be paid overtime when you work more than 8 hours in one day.

Break mistakes: When you take a break, it is important to truly break from your work. If you are working during your lunch period, you probably should be getting paid for your time spent working. However, sometimes employees choose to eat and work at their desk when their employer would like them to leave their work and take a real break. This is sometimes a gray area which merits attention from an employment law attorney when it becomes an issue.

Source: Washington Post, "Common HR nightmares employers can avoid," J.D. Harrison, Jan. 12, 2012

56 Comments

What about how a break is given 21min a day for a month.
7 hrs in a month. what happens when you do the math working days x 21 min and it's over 7 hrs. Then you still get written up for going over. Basically 21 minutes that they don't want you to use. Call center environment.

As I understand your comment, you are indicating that the employer is writing you up when you work overtime hours, which then places you in a position of wanting to not take your authorized breaks so as to avoid incurring overtime. If you end up not taking your breaks, and your employer is aware that you are not taking breaks, but are instead working through them (for whatever reason, including so as to avoid overtime), then an argument could be made that you are entitled to compensation for that break time since you are in actuality working and your employer is aware that you are working.

If you would like to discuss this matter further or have additional questions, please contact our office. You can use the "Tell Us About Your Case" link on the home page to describe the details of your situation.

Thanks for visiting our website and commenting on the blog.

Is there a leeway before your late for work and get writing up? And I called my boss one day to let her know that I was getting out my chair to go to the restroom. Just in case she called and asked she wrote me up for that. But I did not sign it do it count?

Thank you for taking the time to post a comment. In response to your questions: There is no law requiring an employer to provide a leeway before writing you up. If, however, you are a member of a union, you may have grievance rights available to you to challenge an improper write-up.

A write-up still "counts" whether you sign it or not. My recommendation, generally, is that an employee sign to acknowledge receipt of the write-up, but also indicate that he/she does not agree with what has been written and, if permitted to do so, write a response, either on the same document or a separate document, disputing the write-up. Also, you should ask for a copy of the write-up so you have this for your own records.

Is there a Florida Law that states that an employee has a right to a copy of any document they sign at the request of an employer? (eg. Job performance.)
If there is, what is the statute?

Thanks

unfortunately, there is no state or federal law that requires the employer to provide a copy of a document such as a performance review to you. Certainly, however, it is a sound practice for the employer to provide these documents so that, from the employer's perspective, it can prove if necessary that you actually received and read the document.

Is it considered discrimination if my employer is threatening to demote me because I want to take a week off from work (without pay) when a compromise and solution can be made to cover my shifts by other willing employees/coworkers? I am a good employee. I have a great attendance record and stellar behavior.

The employer's actions as you describe them would not be considered unlawful discrmination UNLESS the employer is treating you differently than they have treated other employees under similar circumstances. For example, if a man was allowed to take a week off without any issue, but you are not being allowed to do so, you could argue that you are being treated differently based upon sex discrimination. Similar reasoning might apply if the employer is treating employees different based upon race, age, disability, religion, national origin, etc.

I recently fell ill with a gallbladder illnes and had to be hospitalized beond my control. I was informed to call my employer daily, which I did. I was told that my job was safe. Upon return my shift went down to only 3 days insted of full time. I was then instructed to "inturn" unpaid ffor 4 hours at our other store. I went there early to inform the other person I would be there. We talked as persons do.
I then left later my employer called me and talked angry. At me and told me to forget the job assignment. My hours are cut for now. I was then told that he takes watched and hear all we said. I had a expectation of privacy. No signs of video sound or whre we told. Now my job is cut to PT. Is this legal?

I was fired Cuase my employer said I was talking to others and talking to security after work hours can I get fired cause of that reason I'm a maintenance man/ ground keeper I want to know if that is a law in Florida to get fired the way I did?

Can an employer reduce your pay to minumum wage to help pay for a piece of equipment accidentally broken at work? I accidentally broke a piece of eqiuipment at work and my employer says I have to send back my last paycheck (last pay period) and they are going to reduce it to minimum wage and reissue me a check with the reduced amount. They think I broke it on purpose.

Generally, if you are employed by a company full time for at least a year and the company employs more than 50 people within a 75 mile radius, then you would be entitled to leave time under the Family Medical Leave Act (FMLA) for the medical condition you describe. Under the FMLA, the employer may not interfere with that leave or retaliate against you for taking FMLA leave. Your employer may, and likely will, say that it had legitimate reasons for cutting your hours, either based on performance issues, misconduct or business needs. Your burden, should a claim be brought, would be to show that the reasons given by the employer were not the real reasons and that the real reason for the hours reduction was because of the medical leave taken. If you would like to obtain additional information as to your potential claims, please click on the "Tell Us About Your Case" link on our website, www.gallup-law.com.

The short answer is yes. Unless you are a member of a union or have a written employment contract that provides otherwise, you are an employee at-will, meaning that your employer can take any action it wishes with regard to your employment, except as otherwise specifically provided by law, and the reason for adverse action taken may not be fair, moral, ethical or make good business sense. Given the facts you describe, the employer would not be in violation of any law if the reason for termination was as you indicated.

Yes, an employer may deduct or withhold from your pay charges related to any number of things, including damaged goods the employer believes were damaged by you (even if the employer may be wrong in its belief). However, the deductions may not cause your pay to fall below the prevailing minimum wage for hours worked in the work week.

Is it legal for an employer to force you to go home with just a sore throat and make you take paid time off for it?

Yes, there is no law providing that an employer cannot send you home if you may be sick, nor does the law require that you be paid for the time off.

One of my colleagues voluntarily left her position.
My employer is asking me to take over the departed colleague's complete duties, while performing my own. Each of us have a considerable work load.

Is it possible for me to be terminated for refusing to take on the entire workload of my departed colleague?
The departing colleague's duties are considerably different from my own. Since I will be taking on two different job descriptions, am I in my rights to demand twice my salary to do both tasks?

Thank you for your input.

Is it legal for an employer to change you position , with out noticed , I was hired for one thing ,now after 3 week the change my position doing something totally different

As an at will employee, your employer can change the terms and conditions of your employment, including job assignments and work load, and there is nothing unlawful about doing so, nor does the employer have to pay you more for increasing your work load.

As an at will employee, your employer can change your position, without notice and there is nothing unlawful about your employer doing so.

Is there an employee right or is this a form of retaliation . Me and a 2 co workers are dealing with sexual harassment and ive been assulted by our manager called corperate had meetings wrote statements 2 weeks ago with witnesses he still since then we were threatened and today i asked for copies of my 3 statements i worte for them and right after i left the office our break area is taken away and i am force to do outside and inside janitorial work with my purse on or leave it in a room were the security tresspasses people and the doors are always open to the public

You certainly did the right thing to complaint about the sexual harassment you and your co-workers are experiencing. It is now the responsilbility of the company to take steps to make sure that you are not subjected to any further sexual harassment. It is also the company's responsibility to make sure that you are not retaliated against for reporting the sexual harassment. If you believe the taking away of your break area or other changes in your working conditions are because of retaliation, I would recommend that you bring those matters to the attention of the company (usually Human Resources) as well. If you continue to suffer sexual harassment or retaliation in the workplace, you should consider filing a Charge of Discrmination with the US Equal Employment Opportunity Commission (EEOC), which you can either do on your own or with the assistance of a an attorney.

If an employeer has a written agreement as to what hours you have to work, due to child care; then force you to work many hours over the written hours agreement and threaten to fire if they dont. Is this against the law? Also they force most employees to work over time but pay them the 40 hrs on their check then pay under the table the remaining over time hours.

hello i work for a medical office as a massage therapist and one of my patients forget his gold necklace he called 2 hours later to report the incident so we checked the room and didn't find anything then my boss told me nicely that probably i will have to pay for it.
i got my purse and clothes checked by another employ before i leave the office off course i didn't have the chain but my question is if the can take my money from my salary to pay the patient's necklace.
Thanks

Generally, unless you have a written employment agreement for a specific term (as opposed to an at will agreement), your employer can ask that you work as many hours as the employer wants and can terminate if you fail to work the hours requested. As to pay for overtime, assuming the employee is not exempt from overtime pay under the Fair Labor Standards Act (FLSA), the employee should be paid time and a half for all hours worked above 40. Although paying "under the table" may have tax consequences, the question as to the amount paid, whether by cash or paycheck, is governed by the FLSA.

Yes, your employer can ask that you pay for the patient's necklace, although the amount taken from your pay should not cause your pay to fall below minimum wage. Usually, the employer will take payments over time so that your pay does not fall below the minimum wage.

I am currently working in the entertainment industry employed by a musical group (a band). The group is incorporated and has over 12 members, all of which are hired as independent contractors (we receive 1099 forms). My question is, do members of the group have rights or legal protection from sexual, racial and gender harassment? What about being fired for complaining about said harassment?

Thanks in advance,

Mike

You pose an interesting question. The state and federal laws applicable to claims of discrimination and retaliation apply to employers who employ at least 15 employees. Some local jurisdictions, such as Miami-Dade and Broward County, have lowered the number of employees needed to 5. However, generally, the employer must have the required number of employees, not independent contractors, for the laws to apply. On the other hand, many employers call their workers independent contractors even though these individuals are actually employees. There is a balancing test used by the IRS and the Department of Labor to determine whether workers are being misclassified as independent contractors rather than employees. If you and your co-workers should actually be classified as employees, then, arguably the discrimination and retaliation laws would apply and provide protection, but only if the total number of employees meets the jurisdictional limit under state, federal or local law.

Mr. Gallup,

Regarding tip pools and tip dispersement, by employee request, what records must be made available by the employer?

For example, is an employer required to provide documentation of the following:

1.How tips are dispersed to an employee, not including information regarding other employees' wages and tips, i.e. percentage of tip pool to be received by an employee, tip credits maintained by employer, service charges deducted from tips;

2. Documented hours worked by an employee, especially in the event a clock in/out system does not produce any verification, such as a receipt, or confirmation that an employee is clocked in or out. Can this be required on a regular basis?;

3. Deductions from specific pay periods

Also, are there time stipulations on such requests? If an employee requests employer documentation of hours worked for each pay period, is this required to be provided in a timely manner that corresponds with the given pay period?

Thank you for your information,
Jessica

I work for a management company, I work as front desk, I'm concern because everybody from the company, leasing agents, managers, maintenance get breaks, but I don't, not even valet and if I have to eat my lunch then it has to be standing up in the storage room, is that even legal? plus tomorrow I'm working a double shift from 7am-11pm. they don't give us breaks I have to call the valet to stay in my seat while I eat in the storage! can you help me out with this?

hi there, I think I'm being treated differently, last week I ask for a day off because I had a doctor's appointment, I work from 3pm-11p, my appointment was at 11am I didn't know how long I was going to take so that's why I decided to ask from a day off, my boss told me he couldn't do anything he said that the only I could do is to go in at 4pm I mean c'mon I had to cancel my appointment because of that, but this lady that has been in the company for 2 years she call him yesterday and told him that she's not coming on Thursday without any explanation he agrees, so that's why I think am being treated differently, plus he call me one day asking me to cover for someone and I said i have plans and he got mad and he told me next time I'm getting terminated for not being a team player. please some advise?

Thanks!

In response to your question, I am not aware of any requirement under state or federal law that an employee must provide an employee any type of documentation whatsoever. However, if you believe, as indicated by your question, that your employer is not dispersing tips properly or is improperly deducting service charges from the tips, my suggestion is that you contact the US Department of Labor. That agency, unlike the employee, has the authority to investigate an employer and audit records, including time records, payroll records. etc.

Unfortunately, there is no requirement under state or federal law to provide breaks to employees, including lunch breaks, or to limit the number of hours an employee can work.

It seems as though you may have been the victim of providing a bit too much information to your boss, as, to be honest, it is hard to imagine that a doctors appointment at 11AM would take even 4 hours, let alone 5 hours, which would have you to work by 3PM or 4PM. As such, it doesn't seem to me that the denial of the request for the day off was that unreasonable. However, if you truly feel that your boss was discriminating against you based upon gender (or any other protected characteristic), then you can complain to Human Resources or file a Charge of Discrimination with the US Equal Employment Opportunity Commission (EEOC).

My employer had changed my schedule at 10pm for the next day to come in at 12 imstead of my regular scheduled time which was 3:15.... Was wanting to knw is there a certain amount of notice time employer's have tp give before ur next scheduled time?

No, there is no notice requirement imposed by law prior to changing your schedule. As an at will employee, terms and conditions of your employment can be changed at any time, without any reason given and without notice.

My employer is mandating us to work overtime. Changing our hours to 16 hour days, well 15.5 if you include the voluntary lunch break. They have threatened to fire all of us if we don't comply. Management also said, publicly jn a meeting that as I have a child and cannot work overtime due to my child that I will be fored regardless. This is all because management implemented new software that is more involved and reduces the number of bills we can input each day. Is this ok?

I was told today that I am only allowed to request off or call out 10 days in a year (was never told about this when I was hired). I am apparently at my 10 days already, so I was told I could not request off any days or call out for the rest of the year. I have a baby, so I have had many appointments for him as well as for me.
My boss then mentioned a doctor's note excuses the absences but when I told her that I could get doctor's notes she pretty much made up an excuse saying that a doctor's note only covers the "1 hour max time any appointment should take, not the whole day". 1 hour max? I'm sorry, but what doctor's appointment only takes one hour? Then when I asked her to at least have one set day off a week, so that I can schedule my appointments on those days, she said no. I am a non-exempt employee working at a salon. Am I being ridiculous in thinking that this is unreasonable?

my mother recently to have emergence surgery and i had to call out from work so i could be there for her at the hospital. this is only my 2nd time ever to call out and i have work with my company as an assistant manager for over 2 years. on the day i miss work for my mother my store manager called other stores and talked about me to the part time employees saying how bad of a employee i am for calling out and if i called out the next day the only way i would have a job is if my mother was dead and why do i need to be there its not like my mother would even notice! is there anything i can do about this?

I was told to take a drug test on Friday, I am still waiting to hear from them on the results. This all cam about because of a text I sent to a coworker .my stupidity I know. What I want to know is can they fire me because of the text evenif the drug test comes back negative? Which it will as I haven't used any legal or illegal drugs.

There is no law that prohibits your employer from requiring that overtime be worked. However, if you are eligible for overtime pay, then your employer must, of course, pay you at time and a half for your overtime hours worked. Also, there is nothing unlawful about demanding this overtime be worked across the board by all employees, even those with children, but it would be against the law to allow employees to not work overtime for other reasons, yet demand overtime when the request not to work it is related to a protected status (such as gender or using FMLA for example). I hope that addresses your question.

Thank you for sending this question. The answer to your question may vary depending upon the number of employees your employer employs. For example, if there are more than 50 employees and you have been employed full time for a year, you would have leave rights under the FMLA to cover your doctor's appointments. As you indicate you work for a salon, however, I am assuming there are less than 50 employees, in which case there would be no right to leave, whether for an hour, a day, etc. If your employer employs at least 15 employees (or at least 5 under county law in Miami-Dade and Broward), then you might be able to claim discrimination, but only if others are being granted time off for other reasons, while you are not based upon your pregnancy.

I hope this addresses your question. If you would like to discuss the particulars of your case further, please go to the "tell us about your case' link on our website.

As with my response to the last commenter's post, the answer to your question depends upon how many employees your employer employs. If it employs at least 50 employees within a 75 mile radius of your office, then you have protection under the FMLA for taking time off to care for a family member and your employer may not interfere with that right or retaliate against you for taking FMLA. If your employer is not covered by the FMLA, then your employer is not required to give you time off.

Additionally, from what you describe, it does not sound as though you have yet suffered tangible adverse personnel action such as demotion, termination, etc. for taking time off. If, however, you do suffer that type of tangible action and, again, if the employer is covered under the FMLA, I would suggest you contact our firm to assess the viability of an employment claim.

Yes, there is nothing unlawful about writing an employee up for anything, regardless of whether the rule is in the employee handbook.

Assuming you are an at-will employee (like most employers in the State of Florida) in that you have no employment contract or protection under a union collective bargaining agreement, the general rule is that your employer can terminate you for any reason at all, including, of course, the sending of an inappropriate text message.

I work for an employer as a salary employee, yet my pay was withheld for one day missed due to hospitalization, never mind the numerous weekends I've had to work, on my tools, not designing, and was not paid for that.

Also this employer will not provide a company policy, yet tells us it's "company policy" that I cannot go to lunch with a vendor, even though I have nothing to do with purchasing. (I'm a designer, programmer, and fabricator of electrical controls).

Furthermore, he will not provide a list of paid holidays, he makes things up as he goes along. Isn't it a basic requirement for an employer to provide some level of written documentation regarding what the policies are?

I was promised health care and they won't provide an enrollment form. I was told I got one week vacation per year, and now I have one year and nine months on the job, and now he states I cannot take a vacation while there is a machine on the shop floor, stating it's "company policy" for which we aren't allowed to see the policy (which doesn't exist).

I am required to work a regular work day, yet his son, the mechanical engineer, doesn't show up until 11 every day.

And a month ago, I had to be at the airport at 5AM to catch a flight, the flight was cancelled, I went to the office and at 3PM asked to go home, I was tired. He starts screaming "I can require you to work 24 hours a day if I want, I will fire you now if you don't like it, I am a small business and I can do anything I want"

Needless to say, I'm seeking other employment, but this is a hostile, unsafe working environment, which I told him exactly that.

I need to know what agency to report this a**hole to.

I think OSHA is a good place to start.

We recently got a new GM and she held a staff meeting. Basically saying clock in and clock out on time anything over that, that wasnt approved she will change in the system. Is she allowed to do this? Also, she is constantly rushing me off the clock yet, when I am off only on my one day a week the person who covers my area isnt ever rushed. She has also stated that noone is allowed to take personal days off even if its been written on the request board weeks in advanced. In my eyes this is against the law. Am I right?

Seems to me that the Employer has the right to do whatever they feel like doing to there employee has long as they don't violate the First Amendment

Dave, thank you for your comment. First of all, it definitely sounds as though you are in a bad job situation and hopefully you will find other employment soon to get away from this situation. Unfortunately, a bad or even hostile work environment does not necessarily rise to the level of an unlawful employment practice. As I assume you are an at will employee (no employment contract and no union), the law generally provides that the employer can establish the terms and conditions of employment, can change those terms at any time and need not have or give a reason for their policies and practices, which may well be unethical, immoral, poor judgment or contrary to good business practice. There are, of course exceptions to that general at-will rule, including prohibitions on discrimination based on protected class (race, age, national origin, religion, gender, disability, etc) or protected conduct (whistle-blowing, retaliation for complaining about discrimination, worker's compensation retaliation, etc). However, nothing you have described falls within these exceptions.

Regarding the docking of pay, an employer may not dock a salaried employee for hours not worked in a day, but may dock pay when the entire day was not worked.

Regarding preference to a family member, nepotism, while unfair, is not against the law.

Additionally, while there are wage and hour laws as to how much is to be paid in minimum wage and overtime to covered employees, there is no law requiring a maximum number of hours worked in a day, nor any law in Florida requiring that the employer give breaks for lunch or otherwise.

As you can see, your "rights" as an at will employee are quite limited, which is why the best solution in your case may be to find a better employer to work for.

I wish you the best of luck.

Audrea, thank you for writing to me regarding your employment questions.

With regard to the overtime pay issue, an employer can require that employees not work overtime and, if the employee works overtime without approval, that employee could face disciplinary action for violating the employer's rule. However, where the employee does, in fact, work overtime (even in violation of the employer's requirement not to do so) and the employer knows that the overtime has been worked, the employee must be paid for the overtime worked per the Fair Labor Standards Act (FLSA). Again, the employer can still take disciplinary action for violating the rule, yet the employee still must be paid for the time worked.

As for the personal time off, there is no requirement under the law that an employer give time off, and so, an employer that changes the policy or takes away the time is not violating the law.

I hope that this addresses your concerns.

Actually, even the First Amendment would only apply to a public employee, not an employee working for a non-governmental company. However, there are many laws with which both public and private employers must comply. The general rule, though, is that, except as prohibited by specific employment laws, the employer can establish the terms and conditions of employment.

I am a full time employee and my employer has cut my hours from 35-40/week to 23/week. Am I allowed to file for partial unemployment if my hours keep getting cut to part time?

If you have been working full time, and your work hours have been substantially reduced,
you may be eligible for partial unemployment benefits. There is no clear definition of
substantially reduced, but a 25% reduction in hours would probably be considered a
substantial reduction.

If you apply for partial unemployment, you must be ready and willing to accept a job that will
enable you to work full time. This means that while you are getting unemployment benefits,
you must agree to look for and accept work that would provide you with full time hours.

What are my rights as far as working in unsafe conditions? I work as an "at-will" employee in a distribution center.. Can my employer make me work with unsafe equipment and or in a situation where I could possibly be physically hurt? Can I refuse?

The answer to your questions depend upon whether the unsafe condition violates a safety law, rule or regulation. Generally, the federal government sets safety regulations that are enforceable by the Occupational Safety and Health Agency (OSHA). My suggestion is that you first contact OSHA to find out if the unsafe conditions are illegal and, if so, OSHA can investigate and force the employer to take appropriate remedial action. If you suffer adverse action, including termination, you may have remedies through OSHA as well as under Florida's Whistle-blower Protection Act. To strengthen a claim under the Whistle-blower Act, I would recommend that, before going to OSHA, you send a written complaint to your employer about the unsafe conditions and your concern that these conditions are violations of OSHA or other laws. In this way, you can better establish a connection between your protected conduct (whistle-blowing) and the adverse action and the employer cannot claim it did not know of your activity.

If, on the other hand, your safety concerns do not amount to illegal conditions, then you will likely have a more difficult time in proceeding with a Whistle-blower claim should you suffer adverse action because you may not be able to show you had an objective good faith belief that the conduct of which you were complaining was against the law.

I hope this assists you with regard to your employment matter.

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