Whether you are an employer or an employee, you form a part of the workforce. Therefore, you should understand some laws and rules applicable to different employment situations.
First, as an employee without an employment contract, you should know that you can be fired for any reason at all, so long as the reason is not discriminatory or retaliatory. Discrimination does not mean you were simply treated unfairly, or differently than others. A discrimination claim arises if you were treated differently because of your age, race, sex, disability, national origin, or other protected class. In short, you cannot be fired simply because you are older, African-American, a woman, or disabled. However, you can be fired if your boss believes you are performing poorly, even if you disagree.
You also cannot be fired for retaliation, which occurs when you suffer an adverse employment action – such as termination, demotion, suspension, etc. – as a result of complaining about a violation of the law. Therefore, if you complain about something that is not a violation of the law and you are fired, you are not protected. If you complain about your boss being rude, you can be fired; but if you complain your boss is stealing money, that could rise to retaliation. Unless you have been discriminated or retaliated against, you do not have a claim for “wrongful termination” and, in fact, there is really no such thing as wrongful termination because Florida is an at-will state. You can quit or be fired for any reason or no reason at all.
Furthermore, if you are fired, you do not have to be given a letter of termination, you do not have to be given an explanation, and you are not entitled to severance. You may be entitled to unemployment compensation unless you have committed “misconduct connected with your work.” This is a fairly high standard; but some actions that are considered misconduct include excessive absenteeism, insubordination, not following employer’s rules, etc.
Also, if you quit your job because you are working for a jerk who treats you badly, you cannot claim you were harassed and think you will prevail in a lawsuit. Harassment has to be based on you being a protected status (age, race, gender, national origin), so being berated or treated badly is not harassment; and if you quit – unless you are forced to do so because your employer has made your life miserable – you cannot collect unemployment.
Now, let’s turn to employers. Employers who are covered by the Fair Labor Standards Act must comply with the overtime, minimum wage and child labor laws. Non-exempt employees must be paid overtime and must keep track of all hours worked per week. But what does this mean – exempt or non-exempt from what? An exempt employee is not entitled to be paid overtime, such as a partner at a law firm. Conversely, a non-exempt employee, like a paralegal, must be paid for working over 40 hours in a work week.
So how do you know if your employee is exempt? Well, this will depend on what the employee does, not their title. For example, if you employ an “office manager” who does not actually manage people or have the ability to exercise independent judgement and discretion, that person may not be exempt. Also, keep in mind that paying an employee a salary does not mean that the employee is non-exempt or not entitled to overtime. Non-exempt employees must be paid overtime regardless of the fact that they are paid a salary or not.
Many employers believe that their business does not have enough employees to be covered by the FLSA, but this could not be further from the truth. The FLSA does not contain a “minimum number of employees” requirement. However, the act does require gross revenues of $500,000 and the element of interstate commerce. Therefore, except for very small businesses and those specifically exempted from the FLSA, your business may well be subject to the FLSA’s requirements.
Many private employers also believe that they can ask an employee to waive their right to be paid overtime and that the employee can agree to do so. This is wrong. The right to overtime cannot be waived under any circumstances. A non-exempt employee MUST be paid for all hours worked and, if that employee works over 40 hours in a work week, she must be paid overtime. Remember that the hours worked are measured per week; so if your payroll covers two weeks and the employee works 50 hours in week one and 30 hours in week two, that employee must be paid for 10 hours of overtime for week one.
Finally, a word about independent contractors. Whether you have been hired as an independent contractor or whether you have hired someone to work with you as an independent contractor, you must be certain that a contractor relationship – not an employment relationship – has been established. The key to the inquiry is control. Actually, the IRS has a list of 20 factors which determine if a person should be classified as an independent contractor or an employee, but the level of control is the overriding concern. The reason why it is important to distinguish one from another is that the laws apply differently to independent contractors than to employees.
For example, for independent contractors, no taxes are deducted, the FLSA overtime rules do not apply, discrimination and harassment laws generally are not applicable, and there is no unemployment compensation. If you are hired for a job as an independent contractor or if you hire someone to work for you as one, be certain that a true independent contractor relationship is in place. If you get it wrong, there can be significant tax and wage implications. Make sure you have an independent contractor agreement in place to define duties and pay and define the relationship. Though this may not control, it will help. And, of course, if you have any questions or find yourself in need of advice regarding these topics, please contact a labor and employment attorney.
Please feel free to contact me if you have any questions or comments.
Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.
ASSOULINE & BERLOWE, P.A.
1801 N. Military Trail, Suite 160
Boca Raton, Florida 33431
Main: (561) 361-6566
Fax: (561) 361-6466
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