Frequently Asked Questions

Employees of private employers are not entitled to access or a copy of his or her personnel file.  However, there are exceptions to this when the employer has a policy allowing access or there is a collective bargaining agreement that gives an employee the right to his or her personnel file.  Public employees, such as those who work for a city, county or the state government, may obtain their personnel records if the governmental employer if subject to public record laws, which most are.

No.  Many employees mistakenly believe that employers are only allowed to provide neutral information like their dates of employment and last position held when responding to reference checks.  Unfortunately, this is not the law in Florida.  Florida law provides a qualified protection to employers when they give out an employment reference. Meaning, employers are free to give bad references.  However, if an employer has an illegal motive for giving out a bad reference, such as discrimination or retaliation, this may be unlawful and give rise to other claims. In some circumstances, it may constitute defamation. Learn more on our blog: References: Can my former employer talk bad about me to prospective employers?

An employer may terminate an employee who refuses to sign a non-compete agreement.  In other words, an employer can require an employee to sign a non-compete as a condition of employment or continued employment.

In many cases an employer will require yo to sign a non-compete agreement at the start of your employment.  In Florida, a non-compete agreement is enforceable if it protects a legitimate business interest and is reasonable in scope.  When determining the enforceability of a non-compete, the court will make an individual analysis of the employee’s job duties, training, exposure to confidential information or trade secrets, as well as the time and geographical scope of the restrictions. It is important to note that courts may be hesitant to completely void an overbroad non-compete agreement. Instead, when it is overbroad, the courts are permitted to modify or narrow the non-compete restrictions so that it is enforceable.

There is no legal requirement that an employer pay severance to a departing employee. However, the employer may have to pay severance to eligible employees if it is required under an employee’s employment contract, a company policy or company severance plan (if one exists).  To find out if your employer has a severance policy, check the handbook or make a written request to the employer for any severance plan or policy in place. Depending on the plan, the employer may have to provide the employee with the severance plan within 30 days of your written request.

In most situations, an employer is not required to follow its progressive disciplinary policies before terminating an employee.  In fact, employers are not legally required to follow their own employment policies and procedures or to even consistently enforce their policies and procedures.  But, if an employer is applying policies and procedures inconsistently for unlawful reasons, this may give rise to claims for discrimination or retaliation.  Further, if the employer is subject to a collective bargaining agreement, an employer’s failure to follow the policies in the collective bargaining agreement can give rise to potential grievances. Likewise, when an employee has an employment contract, an employer not following the contract regarding discipline or termination may be a breach.

A private employer typically is not required to pay out accrued vacation or PTO upon termination. There are exceptions, however.  For example, if your employer has a policy or practice of paying out accrued vacation or it is required under a collective bargaining agreement or employment contract, then you may have a claim if it is not paid to you.  Governmental (public) employees may have different rights to pay out of accrued time, depending on the employee’s length of employment, date of hire and the reason for separation.  Learn more about pay out of accrued vacation on our blog: Are you entitled to payout of vacation time?

Wrongful termination really does not exist in Florida, especially since employees are employed at-will.  However, there are several federal, state and local laws that protect employees from termination for illegal motives, such as discrimination or retaliation.  Learn more on our blog: Examples of Wrongful Termination in Florida.

Generally, you should receive COBRA notices within 44 days of your separation from employment. Pursuant to COBRA, when your employment ends from a covered employer, the covered employer has 30 days to notify the insurance administrator (i.e. the insurance carrier) about the termination of the employment relationship.  The administrator then has 14 days to provide notice to you and your qualified beneficiaries (i.e. spouse, dependents, and etcetera) of the right to continue your health insurance, the costs for doing so and the deadline for when you must elect the coverage. When the employer is the administrator, the covered employer has a total of 44 days to provide you with the COBRA notice.  If you do not receive your COBRA notice within this time frame, this may violate COBRA entitling you to damages to make you whole as well as a daily penalty, and sometimes even attorneys’ fees and costs.  Learn more information on COBRA from the U.S. Department of Labor.

Pregnancy discrimination is prohibited by the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, the federal law prohibiting sex discrimination and other protected characteristics.  The Florida Civil Rights Act of 1992, as amended also prohibits pregnancy discrimination and it is viewed as discrimination based on sex.

Private Employer.  If you work for a private employer, the answer is typically no.  The First Amendment protects individuals from intrusion by a government actor in the exercise of the rights to free speech and assembly.  Because a private employer is generally not a government actor, you do not have the right to free speech or assembly while at work.  However, depending on the content of the speech and circumstances, there may be other federal or state laws that may protect your speech at work. Check out our related blog: Can I be fired for my social media posts?

Governmental employer. If you work for a governmental employer (i.e. federal, state or local government), you generally do have First Amendment protection to free speech and assembly as long as certain conditions are met.  These conditions include that 1) the protected actions are outside the scope of the employee’s job duties; 2) the speech is a matter of public concern; and 3) the government’s interest in preventing the protected action does not outweigh the employee’s interests.

There are many federal and state laws that protect whistleblowers in Florida. For example, Florida has whistleblower laws that protect both private employees as well as government employees.  Check out our blog 10 Common Whistleblower Claims which discusses the different types of whistleblower retaliation laws and the time frames for bringing those claims and see if you are protected.