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Scott Wagner & Associates, P.A. Florida Labor & Employment Lawyer
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Florida Employment Law FAQ

Should I File a Lawsuit Against My Employer?

Deciding whether or not you should file a lawsuit against your employer can be tricky. If you’ve been treated poorly, you should work to see that you find justice. Consulting with an lawyer can help you decide whether or not you should file a lawsuit against your employer.

What should you do?

HandshakeThere are many considerations that go into making this decision about proceeding with litigation. There are some situations where an individual may come in with a claim, and there are pre‑requisites that may be required, before an individual is able to proceed with litigation. During that pre‑requisite stage, the employee has the opportunity to resolve their case and decide whether or not to go into litigation.

Sometimes litigation is a matter of being the last resort. There are many opportunities that the employer may have through representation with an lawyer to try to resolve their case without the necessity of litigation.

What are my most basic rights as an employee in the state of Florida?

To be frank, Florida has horrible laws for employees. As an employee in the state of Florida, you have very basic rights. One of those rights is against discrimination in the workplace based on protected traits.

Scott Wagner Protected Traits

What are protected traits?

Protected traits are national origin, gender, disability, age, religion, or sexual orientation, among other traits. Under Florida law, an employer cannot discriminate against an employee based on those protected traits, beginning with the application process.

Prospective employees have these same rights as current employees. In general, if an employer makes an employment decision based on a protected trait, the employee—prospective or current—may have a lawsuit against said employer.

Whether or not that employee or employer is covered under the law depends on certain things, such as the number of employees of the company and the location of the company. Some smaller, privately held companies do not have the same regulations as larger, public companies. If you believe you’ve been discriminated against, you should consult with an experienced employment lawyer as soon as possible.

We understand how you may feel if you have been treated poorly by an employer or prospective employer. The lawyers at Scott • Wagner and Associates can help you if you’ve been wrongfully terminated or discriminated against in the workplace. Contact us today.

How do I know if I’ve been sexually harassed?

Sexual HarassmentWe often receive inquiries from both women and men who simply don’t know if they have a sexual harassment claim or not. If something just does not feel right about how your co-worker/supervisor/employer is behaving with or around you, then you are probably right. It is best to seek legal advice from an employment lawyer who can advise you of the law and the best ways to protect your rights.

Yes, it’s important that you know your company’s harassment policy. This is just as important—if not more—as knowing what the law says. Your company may have a stricter policy about harassment than is even provided under the law.

The more technical answer? Sexual harassment is any unwelcome sexual advance or request for sexual favors. It can also be any verbal or physical conduct of a sexual nature. It is a form of sex discrimination that is prohibited by federal law under Title VII of the Civil Rights Act of 1964 for all companies with 15 or more employees.

There are two types of harassment:

  1. Quid pro quo refers to any employment decision that is based on your submission to the harassment, such as a promotion, an assignment, or merely job retention.
  2. Hostile work environment refers to comments, touching, crude jokes or pictures—anything that makes you uncomfortable in the workplace or that interferes with your performance at work. Unwanted touching can also constitute a battery under Florida law.

No employee should condone sexual harassing treatment for fear of losing his or her job. You have rights, and it is important you understand those rights in order to best protect yourself against this sort of conduct, as well as to assert your rights for protection if you complain about these situations

When considering claims for sexual harassment in a lawsuit, courts may look to the number of times that the behavior has occurred, but repetition is not required for a claim of this nature. If something was severe or pervasive enough, it could constitute sexual harassment after the first time. It all just depends on the situation.

If you believe you have been sexually harassed in the workplace, contact one of our employment lawyers for counsel; we can help you to figure out a course of action. Click here for what to do next.

Do I have to file a complaint with my employer or my HR department

Stop SignWe know those employees who suffer a sexual harassment situation in the workplace may be eager to proceed with immediately filing a lawsuit. However, under Florida and Federal law, there are steps you must first take before you can get to the point of filing a lawsuit. Sometimes, by taking these steps, you may actually succeed at stopping the harassing behavior without the need for further legal action.

So what is your first step? Generally speaking, the first step is to address the harasser. You must make it clear to him or her that his or her behavior is unwanted and that it should stop. If you do not feel comfortable doing this, it may be a good idea to consult with Human Resources. Sometimes, your employee handbook may also dictate to whom you should take your complaints about harassment, and we recommend you consult with those terms to make sure you are following the right steps. For instance, in smaller companies without a Human Resources department, your supervisor may be the best person for your complaints.

If your employer does NOT have a harassment policy in place, or if it has not been sufficiently communicated to you and your co-workers, you should contact an employment lawyer to determine the best steps to handle your concerns.

These two steps—lodging a timely complaint and reporting to the appropriate supervisor—are incredibly important stages that should not be bypassed. Also, this will set in motion the investigation—a key piece to your sexual harassment claim. Once you report your complaint, the Human Resource representative (or supervisor to whom you have reported) should begin to investigate by questioning you, the accused, any supervisors, and any witnesses there might be. He or she may look into any records, email accounts, and/or other forms of documentation.

If your situation does not improve, or if you do not feel confident that the harassment will stop, you may want to consider filing a Charge of Discrimination with the Equal Employment Opportunities Commission and/or the Florida Commission on Human Relations. An employment lawyer can assist you in understanding how to comply with this important step in your claims. Please note that such complaints may be subject to a statute of limitations, so if you have concerns about harassment, you should not delay in seeking legal advice.

Can I sue for sexual harassment if there were no witnesses?

Red doorOftentimes, sexual harassment occurs behind closed doors. But just because there were no witnesses does not mean that all hope is lost. If the harassment is in the form of quid pro quo, where an employment decision is based on submission to a requested sexual favor or advance, there will very possibly be no other witnesses, as such requests are often made outside the presence of others. (Read more about how to tell if you have been sexually harassed here). But this doesn’t mean that you should give up.

First, it is important to bring your concerns to the attention of your Human Resources Department and/or supervisor. Once you report your complaint to your supervisor or the person who is delegated in your employer’s harassment policy, he or she should conduct an investigation of your claim.

As employment lawyers, we recommend that you consult an lawyer so that you can know what to expect and reduce the number of surprises along the way. If, by chance, your company’s investigation was “inconclusive,” meaning that they were unable to uncover sufficient evidence to support your complaints, you may still have other options. A sexual harassment lawyer can help you to identify these options.

Also, keep in mind that even if your harasser is found to be guilty, he or she may continue to be your colleague. The “punishments” vary, and could be anything from behavioral training to a department transfer. It is important that you voice to your employer or the investigator what your wishes are. What would you like to see happen as a result? Would you like to keep your job? By consulting legal help, you will feel better equipped when it comes to dealing with your employer.

If your situation does not improve, or if you do not feel confident that the harassment will stop, you may want to consider filing a Charge of Discrimination with the Equal Employment Opportunities Commission and/or the Florida Commission on Human Relations. An employment lawyer can assist you in understanding how to comply with this important step in your claims. Please note that such complaints may be subject to a statute of limitations, so if you have concerns about harassment, you should not delay in seeking legal advice.

What is the best way to negotiate the terms of my employment contract?

There are many kinds of contracts that an employee may encounter during the period of employment. Examples of employment contracts are initial offer letters, certain employee handbooks, and severance/separation agreements. There are potential opportunities to negotiate the terms of an employment contract, depending on what those contracts are.

It’s always important to make sure that you specifically understand your obligations under these contracts that you may be required to sign. Your failure to understand them may not protect you in the event that you breach or violate those agreements.

Therefore, even if you’re not considering negotiating the terms of your employment contracts, it’s always a good idea to have your employment lawyer review the terms of your contracts with you, to make sure that you understand exactly what’s required of you.

Scott Wagner Contracts

Should I negotiate without an lawyer?

You should not attempt to negotiate without an lawyer. Doing so could do more harm than good.

Let’s use a severance agreement as an example. This type of agreement is valid under Florida law, therefore there is a potential for negotiation. At the same time, however, you do run the risk of losing the opportunity for that severance because they are also not required under Florida law.

Severance agreements in Florida are like a gift from an employer, so even a dollar of severance may be a dollar more than what the employer is obligated to provide to you. We understand that you want to get as much out of your severance as possible, which may require negotiating the terms. However, you have to be careful that, in attempting to negotiate, you do not talk yourself out of a “gift” that your employer doesn’t have to give you in the first place.

Therefore, while there can be latitude for negotiating most contracts, it can be a slippery slope that is best handled with the guidance of an employment lawyer. It’s important to know what rights you have in order to negotiate a contract so that you work within the confines of those rights. This way, you can make sure that you’re getting the best deal for yourself while also still getting the benefits of whatever contracts you may be offered.

Can My Boss Be Mean to Me, or Yell at Me at Work?

Unfortunately, there is no express Anti-Workplace Bullying act or law currently in effect in Florida. While some laws may prohibit workplace violence, such as the Occupational Health and Safety Act, or protect two or more employees who band together to improve the conditions of the workplace, like the National Labor Relations Act, the applicability of these laws depends on the circumstances. In many situations, rude actions by your boss or coworker may not be illegal. Some bosses may simply lack efficient and effective communication and management skills to deal with employees. A boss’ mean treatment towards you may not always rise to the level of creating a hostile work environment or workplace harassment. The question of whether you have the right to take action against your employer or whether you have other legal recourse available to you depends on the specific context and circumstances involved in your situation.

If you believe you are the victim of workplace harassment or abuse, you may have a claim against your employer under federal employment laws, Florida employment statutes, and/or the constitution. Click here to learn more about workplace harassment and hostile environments, or contact the of Scott • Wagner and Associates to schedule a consultation. We offer telephonic consultations and video teleconferencing through Skype and FaceTime in addition to meeting with you in our offices.

Hostile Work Environments and Workplace Harassment

Certain federal and state employment laws protect the rights of employees to work in a safe workplace free from harassment or abuse.

For example, if your boss makes racially-focused comments about you or your coworkers, you may have rights under Title VII of the Civil Rights Act of 1964 and/or Florida’s Civil Rights Act. It is illegal to harass employees based on their gender, age, pregnancy, color, race, national origin, medical condition, sexual orientation, or disability. Continued abuseby your employer or boss that is based on any of these attributes may constitute a hostile workplace claim against your employer.

To bolster your claim, witnesses and other evidence that the conduct has been ongoing, persistent, and unwarranted is helpful.

I Was Written Up at Work in Florida; What Can I Do?

Most employers have a procedure for disciplinary actions within the company, especially larger companies with many employees. The procedures are intended to allow an employer the opportunity to remedy the situation before an employee elects to take further legal action.. If your company has an employee handbook, it is smart to ensure you have the most current copy of the employee handbook for reference as to the company’s policies. You should read and understand the disciplinary policies of the company. However, just because the Handbook dictates a certain procedure does not mean you do not have other legal remedies for your work issues. These questions may be properly addressed by seeking counsel from a Florida employment lawyer.

If you believe you have been written up at work in violation of law, harassed by a supervisor, or falsely accused of something you did not do, you may have a claim against your employer under federal employment laws and Florida employment statutes. Additionally, there may be cases where provisions in the company handbook themselves are against the law. Contact the Florida employment lawyers of Scott • Wagner and Associates to schedule a consultation. We offer telephonic consultations and video teleconferencing through Skype and FaceTime in addition to meeting with you in our offices.

What should you do if you are written up at work?

Mistakes that happen in the workplace or poor decisions by an employee may result in the employee being written up by his employer. As an employment at will state, Florida employers may be permitted to discipline the employee if the discipline does not violate federal, state, or constitutional law. Still, if you are written up, you should consider the following:

  • Remain calm and professional – This may be difficult if you feel you are being falsely accused of something you did not do or if your supervisor or employer is being abusive during the meeting. Remain professional and do not lose your temper. Even in the course of your complaint, you should avoid actions which may be deemed “insubordinate,” and could be a separate basis for the employer taking adverse action.
  • Review the supporting documentation – Ask to review the documentation that supports why you are being written up at the same time you are reviewing the notice of disciplinary action. You can request copies of this documentation and a copy of the notice; however, if you are not a public employee, the employer is not typicallylegally required to provide you with copies of any documents in your employee record. If this is the case, try to make as many mental notes regarding what you review and immediately write those down when you leave the meeting.
  • Review the notice carefully – If you disagree with the alleged facts and/or events contained in the notice of disciplinary action, you may consider a request that you be permitted to add the details of your version of the facts to the notice, such as a rebuttal. If the employer will not permit you to do this, you should maintain your own contemporaneous journal and/or notes of the facts, including as much detail as possible (i.e. names, places, dates, etc.).
  • Signing the notice – If your employer requires you to sign the notice to acknowledge receipt of a copy or acknowledge that you have been provided the information verbally after reviewing the document but you disagree with the notice, take caution about refusing to sign. In some circumstances, your refusal can be deemed an act of insubordination, subject to additional disciplinary action. Instead, consider including a note under your signature that you “disagree with the events and details of this notice.” However, this analysis may change if your you believe that your signature and/or participation in the action would constitute a violation of a law, rule, or regulation.
  • Contact an lawyer – If you feel you are being treated unfairly or your rights have been violated, contact Scott • Wagner and Associates as soon as possible to determine if you have a case against your employer.

Should I Talk to an Lawyer Before I Talk with My Employer?

We always recommend that an employee seek legal advice before talking about an issue with his or her employer. It’s important to know what rights you have and what rights you don’t have. Whether you have a legitimate claim, or a non-actionable gripe with your employment may be a fine line.

It’s helpful to be able to get legal advice and consultation from an lawyer so you know where you are on the matter, what claims are going to protect you from potential retaliation, or what retaliation might be illegal if you complain about something, and what claims won’t protect you.

There may also be certain situations where an employee goes to complain to an employer but he or she is not complaining in the right way to provide the proper legal protections under the law. For instance, if you’re complaining about a certain issue that falls under the Whistleblower Protection Act, there are certain requirements that you have to fulfill in those complaints to make sure that you’re stating those protections under this act.

Additionally, there might be certain people you should speak to at your company regarding your complaints, in order to give you the legal protections you need. For instance, a supervisor and a manager may be sufficient to complain to in some circumstances, whereas in other situations, your complaint may need to go to the CEO or the City Manager, for instance, to provide you with those sorts of protections. So it’s always important to know what your rights are, what you can expect to get as a result of your complaints, and also what kind of behavior by an employer after you complain may be prohibited and what might not be.

Even if you’re not intending on moving forward with litigation or if you’re not intending on escalating the matter any further, it is still important to protect your right by getting that consultation with an employment lawyer so you know the confines of what might be protected and what isn’t under the law.

With all of that being said, it’s important to note that under Florida law, you don’t always have a right to have an lawyer with you during the time you’re speaking with an employer. However, it’s still important to get a consultation to know what your rights are and to know if you have the right to have an lawyer or a witness present. If, for instance, you refuse to speak with your employer until you have the opportunity to have an lawyer present when you don’t in fact have that right, that in and of itself could potentially be grounds for insubordination, even separate from whatever you’re complaining about. If you make this demand to your employer when you don’t have the right, you could be considered insubordinate and it could potentially lead to termination even in the face of a valid complaint.

Therefore, you want to make sure that you’re complaining the right way and that you know your rights about:

  1. When you can complain
  2. To whom you can complain
  3. Or who can be present during the time that you’re speaking with your employer

This is why we always recommend that you seek legal advice before approaching your employer with a dispute. To speak with one of our employment lawyers, fill out the form below or call us today.

What Can I Expect During the Employment Law Process?

Each client’s case is a little bit different, and we want to make sure that we’re matching each person’s experience with our firm to his or her specific needs, goals, and expectations for what they want at the end of the day. Some clients come in to us and they’re suffering from a work problem. They have decided they needed some legal advice on how to handle the situation. It may be that we’re able to address that client’s concerns during one consultation and he or she never needs us again.

If we’re able to help you in one sitting and eliminate reoccurring issues, that is a success for us. However, there are also situations where people require further assistance. For instance, they may be suffering from discrimination and need to move forward with the EEOC process. That’s a pre‑litigation process, and we have been successful in resolving cases during the pre‑litigation process. Some clients might come to us and have a resolution without ever having to go to litigation.

Other clients do require litigation to get the results they want in order to resolve their cases and so other cases will go to litigation. All of our employee citation cases fall within this category.

We also help employers with their needs – this may be just a general consultation where they need legal advice and we act as their human resources, or we may help them with how to classify employees for paying their overtime or for paying their wages, and so forth. Sometimes we do have employers that are also in litigation, and we’ll help them with that as well.

How we handle each case is specifically tailored to what that client wants, therefore each client’s experience varies. If a client comes in and says, “I have this issue and I want to resolve it, but I want to stay away from litigation as much as possible,” our goal is to help that client achieve his or her needs. Some clients may decide that they want to resolve their case by simply returning back to work. Some other client may say, “I have been wronged by a monetary amount by a loss in my wages,” so their resolution might be wage-based.

How we handle the case completely depends on the client in need. We work as a team in our firm, so we try to help our client with a full service of their needs. Sometimes somebody comes in for a discrimination case, but they might also have an unemployment matter. In other words, our service can and will evolve with your needs.

We try to guide our clients through the employment law process. They come to us because of our experience in employment law. And we help them with all the matters they might have in order to try to achieve the outcome that they want from the process.

What Should I Do and Not Do If I Suspect that I Have Been Discriminated Against in the Workplace?

It’s always important to seek consultation from an employment lawyer about your specific situation before making any decision about how to move forward. Do you complain to your employer immediately, or do you need to take other steps first? Will your rights be best protected by filing for a certain charge of discrimination or another kind of complaint with a federal entity? An employment lawyer can help determine these questions. There are certain claims that have prerequisites to move forward with the potential claim, so it’s important to know what prerequisites there might be in order to bring forth your claim.

Also, is there a statute of limitations? Many times with regards to discrimination matters, there is a prerequisite if you intend to take your claim any further with litigation. Even in a pre-litigation process, there might be a statute of limitations that runs from the date of your initial discriminatory action. Therefore, the important thing is to get advice soon and not wait because there are time periods that may be approaching that you’re not taking advantage of when you don’t seek legal advice.

If you suspect that you’ve been discriminated against in the workplace, certain complaints may elevate your legal position, but it’s important to know what those complaints might be and how to word those complaints so that you are protecting yourself. If you just make a general complaint without actually referencing the discrimination, it might not provide you the same elevated rights that you would have if you had actually identified what the discrimination is.

It also depends on the person that you complain about in the workplace as to whether or not you will have legal protection. If you suspect discrimination, the best thing to do is to seek consultation with an employment law lawyer. There are many rights under Florida and federal law that may offer you protection for those discriminatory actions and that’s best handled by recommendations from an employment lawyer.

For more answers to common questions we receive, click here or read about the various situations we handle.

If you would like to schedule a consultation with one of our Florida employment lawyers, fill out the form below or call us today.

Call An Experienced Employment Law Lawyer

For further questions about your employment matter, schedule a consultation with one of our Florida employment lawyers.

The answer depends on the situation. It varies, case by case, so an lawyer will have to complete an analysis of the situation as to whether or not it could be resolved pre-litigation. Other factors would include the financial situation of the individual, in addition to the strength of the facts of the case. It’s important that there is evidence of the poor treatment or inequality so that an lawyer can fight on your behalf.

Litigation can be expensive, and that’s something an employee should consider when planning to move forward. An experienced employee discrimination lawyer will help you uncover the strongest options for litigation or if you would be successful resolving the case pre‑litigation.

If you’ve been treated poorly or been discriminated against in the workplace, do not hesitate to contact the lawyers at Scott • Wagner and Associates Our team is here to help. Call us today at (561) 439-6372.

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