Exceptions to the Employment-At-Will Doctrine
Florida Courts apply the employment-at-will doctrine in most discharge actions, De Marco v. Publix Supermarkets, Inc., 360 So.2d 134 (Fla. 3rd DCA 1978), affirmed 384 So.2d 1253 (Fla. 1980). Likewise, there is no obligation on the part of an employer to be fair or exercise good faith towards employees, Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2nd DCA 1983). However, there are certain exceptions which prohibit discharge or retaliation.
STATE LAW
1. Discrimination - Florida Human Relations Act (FHRA) of 1977 as amended: Discrimination in employment based on race, color, religion, sex, (including same-sex harassment) national origin, age, disability, or marital status is prohibited. §760.10 Fla. Stat. For same-sex harassment, See Oncale v. Sundowner Offshore Services, 118 . Ct. 998 (1998).
NOTE: The FHRA also prohibits discrimination against employees because they opposed, made a charge or assisted in the investigation of discrimination. See §760.37 Fla. Stat.
NOTE: Numerous Counties have ordinances which prohibit discrimination similar to the FHRA and also have sexual orientation discrimination ordinances.
2. Acquired Immune Deficiency Syndrome (AIDS): Discrimination based upon having Acquired Immune Deficiency Syndrome (AIDS) or based upon having taken an AIDS test, or based upon results or perceived results is prohibited. See §760.50 Fla. Stat.
3. Sickle Cell Trait Discrimination: Discrimination against an employee in the form of denial of employment or discharge on the basis of the sickle cell trait or mandatory testing or screening for the trait as a condition of the employment is prohibited. See §448.075 Fla. Stat.
4. Jury Duty: Dismissal of an employee because of his or her having served on a grand or petit jury is prohibited. See §40.271 Fla. Stat.
5. Protection of National Guard Members: Employers are forbidden from discharging, disciplining, or in any manner penalized a National Guard Member because of absence due to active duty in the National Guard. See§ 250.488 Fla. Stat.
6. Minimum Wage Retaliation: An employer may not take retaliatory action for employee exercising his or her right related to minimum wage. See § 448.109 (3) (a) Fla. Stat.
7. Reporting Child Abuse: An employee has a cause of action for retaliation related to reporting child abuse including a claim for punitive and compensatory damages. See §39.203 (2) (b) Fla. Stat.
8. Protection of Political Freedom: Employers may not discriminate against employees for exercising their right to vote as they choose to in any state, county, or municipal election. See §104.081 Fla. Stat.
9. Income Withholding Order: Employers are forbidden to discharge or otherwise discriminate in employment against an employee because of an income with-holding order for the payment of child support obligations. See §61.1301 (9) Fla. Stat.
10. Whistle-Blowing: Employers are forbidden to discharge or retaliate against an employee for his or her disclosing information involving a violation of state or federal law, or for refusing to participate in any conduct forbidden by law. Private: See §448.102 Fla. State. Public: See §112.3187 Fla. Stat.
11. Anti-Boycotting Protection: Employers may not discharge or threaten to discharge employees for trading or dealing, or for not trading or dealing, with particular businesses or merchants of their own personal choosing. See §448.03 Fla. Stat.
12. Blacklisting: Two or more persons may not conspire for the purpose of preventing any person from procuring employment. See §448.45 Fla. Stat.
13. Workers Compensation: Employers are forbidden from threatening to discharge, discharging, intimidating, or coercing any employee by reason of an employee's valid claim or attempting to claim workers compensation. See §440.205 Fla. Stat.
14. Judicial Proceeding Testimony: Prohibits dismissal from employment because of the nature of the testimony or absence from employment as a result of complying with a subpoena. See §92.57 Fla. Stat.
15. Toxic Substances: Employers are forbidden to discharge or discriminate against employees for exercising rights under the state's toxic substance right-to-know provisions. See §442 116 Fla. Stat.
16. Termination of Employment for Testifying Under a Subpoena: An employer may not terminate an employee as a result of time away from work or testimony given under a subpoena. The statute allows for compensatory and punitive damages. See § 92.57 Fla. Stat
17. False Claim Act: An employer may not discharge, demote, threaten or in any way discriminate against any employee related to the employee's involvement in investigating, mediating, initiating, or assisting in the initiation of a complaint or testifying under the False Claim Act. See §68.088 Fla. Stat.
18. Agriculture Employee Protection: Chapter 487 Fla. Stat. provides protection for agriculture employees and any retaliation against any agriculture employee, who exercises his or her right under Chapter 487, or under the U.S. Environmental Protection Agency Worker Act, is prohibited. See §487.207 Fla. Stat.
19. Long Term Care Facilities, Nursing Homes: Employees of long term facilities or nursing homes are protected from any form of retaliation for filing a complaint, cooperating or providing information to the State related to the operation of such facility. See §400.0083 Fla. Stat.
20. Personnel Policies, Non-Compete Agreements: A personnel policy or non-compete agreement adopted with certain formalities could form the basis for a discharged employee's claim that he or she was not an at-will employee. Falls v. Lawnwood Medical Center, 427 So.2d 361 (Fla. 4th DCA 1983). However, the rule is that oral and written policies of an employer do not generally give rise to an enforceable employment agreement, McConnell v. Eastern Airlines, Inc., 499 So.2d 68 (Fla. 3rd DCA 1986). Some employers do have written grievance procedures, which call for binding arbitration. Such provisions do provide a legally enforceable method to challenge the adverse action.
21. Additional Consideration Theory: Where an employee gives the employer some additional consideration, promises of long term employment (although no meeting employment contract specificity requirements) may be enforced; Chatelier v. Roberston, 118 So.2d 241 (Fla. 2nd DCA 1960) but see Lurton v. Muldon Motor Co., 523 So.2nd 706 (Fla. 1st DCA 1988).
22. Contractual Obligations: Where an employment contract is definite in regard to its terms, rate of pay, etc., it will be enforced. However, oral employment contracts are only enforceable if capable of being performed within one year. Note: Union Members are third party beneficiaries under union/ employer collective bargaining agreements, and such agreements almost always provide for termination only cause. Implied contracts, although not definite in scope or duration, have been upheld where work has been performed and promises of payment have been made. Eskra v. Provident Life, 125 F.3d 1406 (11th Cir. 1997).
23. Notice Requirement: Even when an employee is terminable at will, he or she may recover damages caused by the failure of the employer to give reasonable notice of the termination. Malver v. Sheffield Industries, Inc., 462 So. 2d 567 (Fla. 3rd DCA 1985), Perri v. Byrd, 436 So.2d 359 (Fla. 1st DCA 1983).
FEDERAL LAW
24. National Labor Relations Act (NLRA):
a. Concerted Activity: Two or more employees advancing a work related concern seeking some remedy for a group or class of employees may not be disciplined or discharged for such activity. Section 7 of the NLRA. 29 USC 158 (a) (4).
b. Union Activity: Employee's participation in union activities, filing unfair labor charges against an employer, or becoming a witness in such proceedings, may not be retaliated against by their employer. Section 8 (a) (4) of the NLRA.
c. Employee Interrogation: An employer may not interrogate an employee about union activity, or make promises as an inducement to vote against a union. Section 8 (c) of the NLRA.
25. Civil Rights Act of 1964, as amended (Title VII): Title VII precludes an employer from discrimination based on race, color, religion, sex, (including same-sex harassment) national origin, disability, marital status, or pregnancy. 42 U.S.C. 2000 (e) et seq. See Oncale v. Sundowner Offshore Services, 118 . Ct. 998 (1998) re sexual orientation.
26. Civil Rights Act of 1870: Prohibits discrimination based on race. See 42 U.S.C. 1981.
27. The Rehabilitation Act: Prohibits discrimination based upon disability by any recipient of federal funds. 29 U.S.C. 794.
28. Americans with disabilities Act (ADA): Prohibits disability discrimination for serious disabilities and provides an additional obligation upon employers to reasonably accommodate a disabled employee. 42 U.S.C. 12101 et seq.
29. Age Discrimination in Employment Act (ADEA): Precludes employee discrimination on the basis of age (between the ages of 40 and 70). Note: The Florida Civil Rights Act has no age requirement, but precludes age discrimination generally. 29 U.S.C. 621 et seq.
30. Citizenship: Prohibits discrimination based upon citizenship. 8 U.S.C. section 1324 (b) (a) (1).
31. Family Medical Leave Act (FMLA): An employee may have up to 90 days unpaid leave for certain medical and family matters under certain circumstances. An employer may not demote or discharge an employee because of such leave. Further, an employee may not discriminate against or discharge an employee for filing a charge under the FMLA or giving information or for being about to testify or testifying under the FMLA. 29 U.S.C. 2601 et seq.
32. Fair Labor Standards Act (FLSA): Prohibits any form of employee retaliation by an employer because an employee has filed a claim or given testimony in any FLSA proceeding. 29 U.S.C. 201 et seq.
33. False Claim Act: An employer may not discharge, demote, threaten or in any way discriminate against any employee related to the employee's involvement in investigation, mediation, initiating or assisting in the initiation of a complaint or testifying under the False Claim Act. 31 U.S.C. 3730 (h).
34. Sarbanes-Oxley Act of 2002: This statute among other things prohibits discrimination against Whistle-Blowing in publicly traded companies.
35. The Vietnam Era Veterans Readjustment Assistance Act: Prohibits discrimination against disabled Vietnam veterans. 42 U.S.C. 2021 et seq.
36. The Immigration Reform Control Act: Prohibits discrimination on account of national origin or citizenship status if the employer has four or more employees. 84 U.S.C. 1101 et seq.
37. The Surface Transportation Assistance Act: Prohibits discrimination of commercial motor transportation employees for failing to operate an unsafe motor vehicle or making safety complaints. 38 U.S.C. 2012
a. The Uniform Services Employment and Reemployment Act: Prohibits an employer from discrimination against an employee because of military service. 38 U.S.C. 4301 et seq.
38. Employee Polygraph Protection Act: Prohibits an employer, under certain circumstances, from discharging or retaliating against and employee who refuses, declines, or fails to take or submit to a lie detector test. 29 U.S.C. 2002 et seq.
39. Sherman Anti-Trust Act: An agreement between employers not to hire each other's former employees could form the basis of a claim under the Sherman Anti-Trust Act. Radovich v. National Football League, 352 U.S. 445 (1957). Note: Florida also has an Anti-Trust Act (Chapter 542 Fla. Stat.)
40. Occupational Safety and Health Act (OSHA): Employers may not retaliate against employees who report or participate in matters related to OSHA's jurisdiction. 29 U.S.C. 657 et seq.
41. Employee Retirement Income Security Act (ERISA): ERISA provides that no plan participant or beneficiary shall be discharged, fired, suspended, expelled, disciplined, or discriminated against for exercising his or her rights under an employee welfare, benefit or pension plan covered by ERISA (510); 29 U.S.C. 1001 et seq.
42. Federal Jury: Prohibits the discharge of a permanent employee for serving on a federal jury. 28 U.S.C. 1875.
43. The Railway Safety Act: Prohibits an employer governed by the Railway Safety Act from discharging an employee for refusing to work under conditions reasonably believed to be unsafe or which relate to other safety laws. 42 U.S.C. 441.
44. The Clean Air Act: Prohibits an employer from discharging an employee for exercising rights under the Act. 42 U.S.C. 7622.
ADDITIONAL RIGHTS FOR PUBLIC SECTOR EMPLOYEES
Public sector employees (Federal, State, County, or City) generally have rights created by the governmental units legislation (employment property rights). Such legislation should be reviewed for employment rights as it concerns grievance and appeals rights. In addition, public sector employees have certain constitutional rights which flow through color of Federal, State, County or Municipal law and are provided for a cause of action for any Federal or State constitutional right deprivation under 42U.S.C. 1983.
45. Freedom of Speech and Expression: Under the right of freedom of speech and express (First Amendment Rights) employees may not be disciplined or terminated for exercising such rights (not every form of speech or expression is protected). O'Hare truck Service, Inc. v. City of North Lake, 518 U.S. 712 (1996); Stough v. Gallagher, 967 F.2d 1523 (11th Cir. 1992).
46. Firefighters and Law Enforcement Officers Protection: Firefighters and law enforcement officers have certain rights under chapter 112 Fla. Stat. A public employer is precluded from retaliating against firefighters or law enforcement officers from exercising such rights. For Firefighters see §112.82 Fla. Stat., Law Enforcement Officers see §112.732(5) Fla. Stat.
NOTE: Name Clearing Hearing: Public employees who are terminated (whether or not they have a property right in their employment) may be entitled to a name clearing hearing post-termination when stigmatizing information is made a part of the public record or otherwise published. Garcia v. Schneider and Dade County, 563 So. 2d 723 (1990). Note under Chapter 119 Fla. Stat. a public employer must provide documentation concerning employee's termination (i.e., personnel file). No such obligation exists pre-suit for private employers.