FLORIDA: An Introduction to Labor & Employment

A BRIEF INTRODUCTION TO THE CURRENT LABOR AND EMPLOYMENT LAW CLIMATE IN FLORIDA

By Sacha Dyson, Susan Spradley, Marlene Quintana, Deborah La Fleur, and Gregory Hearing

Florida is an employer-friendly state. Bolstered by an increasing population and booming development, the robust business climate in Florida has attracted a record number of businesses relocating to the state. The combination of a lower tax burden, a pleasant year-round climate and a dearth of employment regulations makes Florida a great place for employers.

At-Will Doctrine and Right-to-Work
Any discussion about Florida employment law logically begins with Florida’s recognition of the employment at-will doctrine. In the absence of an employment contract for a definite term or a collective bargaining agreement, Florida employers may make employment decisions freely so long as their actions are not discriminatory, retaliatory or otherwise in violation of the law. Moreover, Florida is a right-to-work state by its constitution, which prohibits required union membership and has depressed union membership numbers significantly. In 2020, the number of employees who are dues-paying union members rose slightly to just over 6 percent of the Florida workforce. But that percentage is still well below the national average. In the public sector, the Florida Constitution also precludes public employees from striking, which contributes to the free-flow of commerce and activity in this state.

Employment Lawsuits on the Rise
The practice of labor and employment law in Florida is growing. Employment-related lawsuit filings in both federal and state court are on the rise. Of particular note are the numerous wage and hour lawsuits filed in central and southern Florida courts. Florida’s non-competition law was revised significantly in 1996 but litigation remains robust in that area, as well as under Florida’s Trade Secrets Act. As courts will enforce reasonable covenants supported by legitimate business interests, businesses are well advised to have their employees execute covenants not to compete, solicit and/or pirate away fellow employees, and should prohibit employees from divulging confidential proprietary business information, especially those employees who can harm their current employer by leaving and competing against them.

Whistle-Blower Statutes
Florida has both public- and private-sector whistle-blower statutes. The public-sector statutes, which can be construed to apply to government contractors in certain instances, have a short limitations period and specific requirements as to whom the complaint must be made, the information that must be disclosed, and which employees are protected. However, unlike the statute applicable to private employers, it does not require an actual violation of the law – only a suspected violation. The private sector statute contains a longer limitation period and provides for a broader definition of protected activity (including a verbal objection or refusal to participate in a violation of a law, rule or regulation). However, it requires an actual violation of the law (as interpreted by most courts of the state) and it must be an objection or complaint about a practice of an employer, not merely an unlawful action taken by an employee.

Florida Civil Rights Act
Florida also has its own civil rights act (Florida Civil Rights Act), which is administered by the Florida Commission on Human Relations (FCHR), making Florida a deferral state under Title VII and extending the period of time to file a charge of discrimination with the EEOC from 180 days to 300 days. The Florida Civil Rights Act has its own administrative exhaustion requirement, which requires a charge of discrimination to be filed with the FCHR within 365 days of the adverse action. Upon investigation, the FCHR can issue a no-cause determination, which requires a further administrative hearing before a lawsuit can be brought in court. The Florida Legislature recently amended the Florida Civil Rights Act to clarify and shorten the statute of limitations that had been expanded by court interpretation.

Medical Marijuana
Florida recently legalized medical marijuana, making it lawful to possess and/or use medical marijuana. The new law immunizes individuals against criminal liability but nonetheless provides that employers may enforce their drug-free workplace policies, including taking employment action against employees who test positive for cannabinoids regardless of whether the medical marijuana was lawfully obtained and/or ingested. There have been attempts to amend that law to provide protection for employees who use medical marijuana but those efforts have failed to date. Additionally, an effort is underway to pass an amendment to Florida’s Constitution that would legalize the possession and use of recreational marijuana. That amendment may come to pass in the next few years.

Minimum Wage
The Florida Legislature recently passed an increase to Florida’s minimum wage. The minimum wage will increase annually through 2026 ultimately raising the minimum wage to $15/hour by September 30, 2026. Florida has its own wage statute with an extended statute of limitations over the FLSA and employees often bring unpaid wage claims under that statute as well as the FLSA and some local ordinances in various counties across the state.

Impact of COVID-19 Pandemic
Florida was at the forefront of restarting its economy and limiting local government restrictions on business patrons as a result of the COVID-19 pandemic. It enacted an expansive immunity statute for civil liability claims against business, governmental and certain other entities arising from or related to COVID-19. Florida’s Governor has completely opened all state and local government buildings and Florida’s courts are getting back to normal judicial proceedings although virtual hearings will likely remain an option for litigants even if the pandemic subsides completely.

Court Structure
Practice in the state is as diverse as its geography. There are 67 circuit courts and three federal district courts. The Northern District ranges from the Panhandle to Tallahassee down to Gainesville. The Middle District ranges from Jacksonville cutting diagonally across the state to Naples (including Tampa, Orlando, Ocala, and Fort Myers). The Southern District ranges from a few counties north of Miami-Dade down through the Florida Keys. State court practice can be quite varied from quaint small town practices to very large metropolitan practices. Of recent note is the Florida Supreme Court’s amendment of the Florida Rules of Civil Procedure relating to motions for summary judgment. The rule amendment adopted the federal court summary judgment standard for motions heard after May 1, 2021. It is anticipated that the rule amendment will be quite impactful, especially on employment claims.

Conclusion
Employees in Florida are bringing labor and employment claims on a more frequent basis, but the freedoms that employers have in the state are more robust than in most state jurisdictions. This fact, coupled with Florida’s increasing population and favorable business environment, enables Florida to remain a very employer-friendly state.