Firm Overview
At Kwall, Showers & Barack, P.A., we represent employees in the full range of employment matters.
Age Discrimination in Employment Act ("ADEA")
The ADEA is a federal law that makes it an unlawful employment practice for an employer to refuse to fire, discharge or otherwise discriminate against an employee because of the employee's age. The ADEA protects individuals age 40 and over. The Florida Civil Rights Act also prohibits age discrimination.
Americans With Disabilities Act ("ADA")
The ADA makes in unlawful for a covered employer to discriminate against a qualified individual with a disability. The ADA defines disability as a “physical or mental impairment that substantially limits one or more of the major life activities of an individual.” The ADA also requires covered employers to make reasonable accommodations for employees with disabilities.
Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer with 15 or more employees to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
Florida has a similar law, the Florida Civil Rights Act, which prohibits an employer from refusing to hire or discharging an employee because of the employee's age, race, religion, sex (gender), national origin, handicap or marital status.
Title VII and the Florida Civil Rights Act also make it unlawful for an employer to terminate an employee in retaliation for the employee having complained in good faith about discrimination or harassment.
Employment Contracts
Employers and employees often enter into various forms of employment contracts. Contracts can be informal, such as "offer letters." or more formalistic, such as executive contracts for a specific duration. Contracts can be verbal or written. Employment contracts may create a variety of rights or obligations on the part of employers and/or employees. When contracts are breached by either employees or employers, the non-breaching party may sue for breach of contract.
Employment Torts
Employment torts are various negligent or intentional acts that may occur in the workplace. For example, an employer who hires an employee who has a propensity to engage in sexually deviant behavior may be liable for "negligent hiring" if the employer hired the problem employee and knew or should have known of his past.
Under limited circumstances, an employer may be liable for assaults or batteries in the workplace, if they are committed in the course and scope of employment. Other employment torts include invasion or privacy, tortious interference or even intentional infliction of emotional distress in the most extreme situations.
EEOC Charges & Proceedings
The Equal Employment Opportunity Commission (EEOC) is a government agency that was established by Title VII of the Civil Rights Act of 1964, and is the federal agency responsible for enforcing many federal statutes. Individuals who feel they have been discriminated against may file a charge of discrimination with the EEOC and state or local fair employment practice agencies.
When a charge of discrimination is filed, the EEOC conducts an investigation to determine if there is reasonable cause to believe that discrimination has occurred. At the conclusion of its investigation, the EEOC may issue a “notice of right to sue,” which authorizes the employee to file suit, regardless of whether it found reasonable cause to believe discrimination had occurred. The EEOC may also file suit itself on the individual’s charge or may file a “commissioner’s charge” and bring suit, even if no individual has complained of discrimination.
Family and Medical Leave Act ("FMLA")
Under the FMLA, employees of companies that employ 50 or more employees are eligible to take up to 12 weeks of medical leave in a one-year period, if they have been employed for at least 12 months and have worked at least 1,250 hours during the 12 month period immediately preceding the absence. The reasons for medical leave can include the birth or adoption of a child, caring for a spouse, parent, or minor child who cannot care for him or herself, or for a serious health condition that makes the employee unable to perform the essential functions of the job with or without reasonable accommodation. The leave of absence can be unpaid. The FMLA has different methods of calculating the one-year period and requires the employer to have an FMLA policy.
Non-Compete Agreements
Non-compete agreements generally provide for no competition during and after employment. Such agreements must be reasonable in geographic scope and duration. They can be separate contracts or part of an overall employment agreement. Under Florida law, non-compete agreements must contain certain very specific requirements in order to be enforceable, and there is a Florida Statute governing the enforceability of such contracts.
Pregnancy Discrimination
Pregnancy discrimination is prohibited by Title VII as amended by the Pregnancy Discrimination Act of 1978. It is unlawful to discharge or refuse to promote or hire women due to pregnancy.
Overtime & Wages
The Fair Labor Standards Act (“FLSA”) regulates the overtime and minimum wage laws for employers. The FLSA requires employers to pay non-exempt employees overtime pay at time and one half the employee’s regular rate. Often times, employers will incorrectly classify employees as exempt from overtime, making the employer potentially liable for wages and attorney’s fees under the FLSA. Florida law also authorizes employee’s to sue employers for unpaid wages or commissions, and recover the wages plus attorney's fees if they prevail in litigation.
Severance Agreements
Oftentimes an employer will provide an employee with a “severance agreement” or “separation agreement” upon discharge, lay-off, or job elimination. These agreements generally provide the employee with monetary compensation, which can vary, and other benefits. In exchange, the employee signs a general release, discharging the employer from any and all legal obligations.
Sexual Harassment
Sexual harassment is any unwelcome behavior, requests for sexual favors and other verbal or physical conduct of a sexual nature when submission to such conduct is implicitly or explicitly a term or condition of the individual’s employment. The courts have traditionally divided sexual harassment into “quid pro quo”, which involves the exchange of sexual favors for job advancement or continuation, or “hostile work environment” sexual harassment, where the harassment claim is based upon an atmosphere of unwelcome sexual harassment.
Whistleblower
“Whistleblowing” refers to reporting, objecting to or protesting illegal activities in the workplace. It may be unlawful for an employer to discharge an employee because that employee has reported or objected to alleged illegalities by the employer or because the employee has provided information to a government agency conducting an investigation or inquiry into alleged illegalities by the employer.
