Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Tuesday, August 27, 2019

Clearing Up 10 Common Misconceptions About Employment Law

I'd like to quickly clear up some common misconceptions about employment law:

  1. Breaks: There is no federal (or Florida) law requiring breaks for adult employees.
  2. Reason for firing: No, your employer doesn't have to give you a reason for firing you in Florida or most states. Some states do require that employers give a reason in writing, but it's not the majority. The good news is the failure to give a reason could prevent them from getting a summary judgment based on having a legitimate reason to fire you.
  3. Right to work: Right to work does not mean that noncompete agreements can't be enforced. It has absolutely nothing to do with noncompetes. It has to do with whether you have to pay union dues to work in a union workplace. It is a measure meant to weaken/destroy labor unions.
  4. Harassment: Bullying, harassment and hostile environment are not illegal in any state but Tennessee, and that's only for government employees. Hostile environment or harassment is illegal if it is because of race, sex, age, national origin, disability or other protected class.
  5. Retaliation: If you complain about bullying or hostile environment that isn't due to a protected class, you aren't legally protected against retaliation.
  6. Noncompete agreements: Noncompetes are frequently enforced in Florida. It's one of the most anti-employee states in the nation. Stop telling people noncompetes are never enforced here. Seriously.
  7. Firing: Yes, your employer can fire you over the phone or by text. There is no law saying it has to be done in person or with an HR person present. There is no particular way an employer has to fire you unless you have a contract saying otherwise.
  8. Unfair treatment: Yes, your employer can be arbitrary. They don't have to treat everyone the same. They can be jerks. What they can't do is treat people differently due to age, race, sex, national origin, disability or other protected class.
  9. Doctor's note: Yes, you can be fired for missing work even if you have a doctor's note. Unless you are covered by FMLA (worked at least a year, employer has at least 50 employees, absence for serious medical condition) or the absence relates to a disability, you can be fired for missing work when you're sick.
  10. FMLA and vacation/sick time: Don't wait until you use up your sick or vacation time to put in for FMLA. They go hand in hand. If you have accrued paid time off, then your FMLA is paid. Otherwise, it is unpaid. 
These are not by any means all the misconceptions I encounter about my area of practice, but they are some recent ones. Bottom line is don't listen to your non-lawyer friends when they opine about your legal rights. And frankly some non-employment lawyers get some of this stuff wrong (like the enforceabilty of noncompetes and right to work). When in doubt, talk to an employment lawyer in your state about your rights.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.