Employment Discrimination

Is my employer discriminating against me?

Federal and Florida laws make discrimination in the work place illegal. Employment discrimination occurs when an employer intentionally treats an employee or job applicant less favorably based upon that person’s Age, Disability, Genetic Information, Marital Status, National Origin, Pregnancy, Race/Color, Religion, or Sex/Gender. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is illegal to harass an applicant or employee based upon the employee’s Age, Disability, Genetic Information, Marital Status, National Origin, Pregnancy, Race/Color, Religion, or Sex/Gender. Harassment can include, for example, offensive remarks about a person's protected characteristic. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the employee's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Discrimination can also occur unintentionally when an employer’s job practices, such as a test or reduction in force, disproportionately and negatively affect individuals on the basis of a protected characteristic that is not job related.

Employees who believe that they have been a victim of discrimination must act quickly to protect their rights. If you believe you have been discriminated against contact our office for a free consultation. You can also contact the Equal Employment Opportunity Commission or the Florida Commission on Human Relations to file a charge of discrimination.

Am I being retaliated against?

An employer retaliates against an employee when it terminates, demotes, severely or continuously harasses, or takes action against an employee that would reasonably keep other employees from doing the same thing because the employee engaged in statutorily protected activity such as reporting sexual harassment, discrimination, or improper pay practices.

It is also illegal for an employer to retaliate against an employee for “blowing the whistle.” This can include refusing to participate in or objecting to a practice or policy of the employer that violates a rule, law or regulation. It may also include reporting the illegal activity to a federal or state government agency, such as OSHA, ACHA, DOL, or the DOT, or testifying or providing information to a governmental entity that is conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.

In Florida an employer cannot discourage an employee from filing a Worker’s Compensation claim, and an employer cannot retaliate against the employee for filing a claim.

There are many federal and state laws that protect employees from retaliation in different types of situations. Some of these laws require that the employee act quickly to protect his/her rights. The examples set forth above do not represent all forms of unlawful retaliation in the workplace. If you believe you have been retaliated against for engaging in protected activity, contact our office for a free consultation.

Am I being paid correctly?

All employees are required to be paid minimum wage. The current minimum wage in Florida is $7.25 per hour. An employer may pay regularly tipped employees a reduced rate of $4.23 per hour. The total of an employee’s tips and hourly wage must equal or be greater than the minimum wage.

The Fair Labor Standards Act (FLSA) requires a covered employer to pay hourly and “non-exempt” employees overtime for each hour worked over 40 hours per week. An employee’s overtime rate is a rate of not less than one and one-half times his/her regular rate of pay after 40 hours of work in a workweek. The employee’s hourly rate should include all compensation she/he received during the week which may include daily or weekly bonuses or commissions. A private employer may not give “comp time” instead of paying overtime.

Even though an employee is paid salaried or called an independent contractor, the employee may still be entitled to overtime if his/her job duties do not qualify him/her for an exemption under the FLSA. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.

Employers may intentionally or unintentionally violate the FLSA or the Florida wage laws. Here are some examples:

Overtime / Misclassification, Minimum Wage / Working off the Clock
In Florida, individuals working in hospitality or call center environments are often victims of wage and hour abuse by their employers.

The Fair Labor Standards Act (FLSA) requires an employer or entity to pay overtime wages based on the nature of its business (“enterprise coverage”) or on the type of work performed by a particular worker (“individual coverage”). A worker who qualifies for overtime wages must be paid 1 ½ times his/her regular rate of pay for all hours worked in excess of 40 in any work week. The calculation of the regular rate of pay includes compensation in the form of on-call pay, non-discretionary bonuses, shift differentials and travel expenses paid by the employer. Employees paid on a piecework basis (being paid per piece or job) may also be entitled to overtime wages.

There are certain categories of jobs that are exempt from overtime wage requirements under the FLSA, such as executive, administrative, professional, outside and/or commissioned sales and some “highly compensated” workers. However, it is the actual duties and responsibilities of the job that determine whether an employee is exempt from overtime pay requirements, not just the job title. Other factors that determine whether an employee is entitled to be paid overtime wages are whether the employee is “engaged to wait” (considered to be working) or “waiting to be engaged” (considered not working); on-call time worked by the employee; and before and after activities, such as maintaining, cleaning or repairing tools, changing clothes and washing or showering.

Tip Pooling / Sharing
An employer can require that a tipped employee contribute a certain amount of his or her tips to what is commonly referred to as a “tip pool.” This tip pool can then be distributed to customarily tipped employees such as hostesses and busboys. However, the employer may not distribute any portion of the tip pool to a traditionally non-tipped employee. Examples of non-tipped employees may include owners, supervisors, managers, administrative employees, or employees who work “in the back,” such as cooks and dishwashers.

If you believe that a portion of your tips are not being distributed appropriately, contact our office for a free consultation.

Unpaid Commissions

Am I allowed to take Family or Medical Leave?

The Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid, job protected leave to eligible employees. To be eligible for Family Medical Leave, the employee must have worked for a covered employer for at least 1 year and for a minimum of 1,250 hours (or about 25 hours per week) within the previous 12 months. An eligible employee may take Family Medical Leave because the employee has a serious health condition or needs to care for an immediate family member (spouse, son, daughter, or parent) who has a serious health condition. An employee can also use Family Medical Leave for pregnancy complications and to care for the employee’s newborn or newly adopted child.

Employees with an immediate family parent who is on active duty or call to active duty in the National Guard or Reserves may also be able to use their 12 weeks leave to address certain needs such as attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings. The FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member during a single 12-month period.

The FMLA does not require employers to provide paid time off, and employers may require that employees exhaust any accrued vacation or sick leave during the period of any Family Medical Leave. An employee does not have to take all 12 weeks at the same time, but may use Family Medical Leave intermittently, or as needed, throughout the approved period.

However, the FMLA does prohibit employers from interfering with, or retaliating against, an employee who has attempted to exercise his/her right to leave under the FMLA. Examples of interfering with an employee’s request for Family Medical Leave are refusing to give the employee paperwork, firing the employee before the employee can submit the paperwork, or not telling the employee about Family Medical Leave even though the employer knows the employee would qualify for protected leave.

Upon an employee’s return from a qualified FMLA leave, an employee must be restored to their original job, or to an equivalent job with similar pay, benefits, and other terms and conditions of employment. An employer cannot fire, demote, harass, or take any adverse employment action against an employee for taking leave under the FMLA.

If you believe that your employer has interfered with your ability to lawfully take leave under the FMLA or has discriminated against you for taking leave under the FMLA, please contact our office for a free consultation.

Can my employer do that?

Employers can violate the law in many ways. This may include the ways listed above, breaching an employment contract, refusing to pay commissions earned, or unlawfully interfering with an employee’s ability to get a job or stay in his/her current job. However, many actions by an employer while unfair are not illegal. If you think you have been the victim of an illegal action by your employer, contact our office for a free consultation.

Age Discrimination

The federal Age Discrimination in Employment Act (ADEA) and the Florida Civil Rights Act of 1991 (FRCA) prohibit employers from discriminating against an employee on the basis of age. The ADEA only forbids an employer from discriminating against employees who are 40 or older, not workers under the age of 40. Under federal law, it is not illegal for an employer to favor an older worker over a younger one, even if both employees are 40 or older. However, under the ADEA, an older worker might have an age discrimination claim if he/she is replaced by an employee who also is over the age of 40 but is substantially younger then the terminated worker. In Florida it is illegal to discriminate against any employee on the basis of age, regardless of the worker’s age.

Disability Discrimination

The Americans with Disabilities Act as Amended (ADAA), the Rehabilitation Act, and the Florida Civil Rights Act (FCRA) make it illegal for a covered employer to discriminate against an employee on the basis of an actual disability, a history of disability, or a perceived disability.

A person can show that he or she has a disability in one of three ways:

If he or she has a physical or mental condition that substantially limits a major life activity (such as breathing, walking, talking, seeing, hearing, or learning) or a bodily system (such as the endocrine or nervous system).
If he or she has a history of a disability (such as cancer that is in remission).
If he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).

The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.

The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). An employer may not refuse to provide an accommodation just because it involves some cost.

Genetic Information Discrimination

In 2008, the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted to prohibit most employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. Genetic information is information about:

an individual’s genetic tests (including genetic tests done as part of a research study)
genetic tests of the individual’s family members (defined as dependents and up to and including 4th degree relatives)
genetic tests of any fetus of an individual or family member who is a pregnant woman, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology
the manifestation of a disease or disorder in family members (family history)
any request for, or receipt of, genetic services or participation in clinical research that includes genetic services (genetic testing, counseling, or education) by an individual or family member

Genetic information does not include information about the sex or age of any individual.

Pregnancy Discrimination

The Pregnancy Discrimination act amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination. Courts have also interpreted the Florida Civil Rights Act as prohibiting pregnancy discrimination.

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. If the woman has a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her the same as any other temporarily disabled employee. If an employer provides personal leave for other reasons, then the employer must grant personal leave for care of a new child. The employer also cannot harass a woman based upon her pregnancy.

Pregnant employees may also have rights under the Family and Medical Leave Act (FMLA).

If you believe you have been discriminated against because you are pregnant, contact our office for a free consultation.

Race / Color / National Origin Discrimination

Title VII of the Civil Rights Act of 1964, as amended, the Florida Civil Rights Act of 1991 (FCRA) and the Civil Rights Act of 1866 (42 U.S.C. § 1981) prohibit employers from discriminating against employees or applicants based upon a person’s race or color. This means that employers cannot treat individuals (employees or applicants) unfavorably or harass employees based their race or color. It also means that employers cannot treat employees unfavorably because they associate with (or are married to) a person of a particular race or color, or are associated with a race-based organization or group. Employers are also prohibited from enacting facially neutral policies or practices (e.g., employment tests or selection procedures) that have a significantly adverse impact on persons of a particular race or color. Furthermore, an employer may not segregate its employees by race or color in job categories, promotions, or other terms and conditions of employment.

If you believe you have been discriminated against based upon your race or color, please contact our office for a free consultation.

Religious Discrimination

Federal law ( Title VII of the Civil Rights Act of 1964) and Florida law (Florida Civil Rights Act) prohibit religious discrimination in the workplace. The definition of religion includes all aspects of religious observance and practice, as well as belief. Religion does not have to be a “mainstream” religion and includes any set of ethical beliefs and the right not to believe. Coverage extends to not only the beliefs but the practices when carrying out the beliefs. An employer has an affirmative duty to reasonably accommodate a tenet of the belief, not a personal preference of convenience. However, an accommodation cannot cause an undue hardship on the employer or other workers. Consideration also is given to the expense of the proposed accommodation.

There are exemptions under the law:

A religious corporation, association, educational institution or society can discriminate on the basis of religion if it chooses to limit employment to persons of a particular religion;

schools and colleges run by religious organizations, or whose curriculum is intended to propagate a particular religion, also are exempted;

First Amendment protection of religious freedom under the United States Constitution prohibits government interference with a church’s selection of its clergy. (A rejected , discharged clergy person may not make a claim against a church even if discrimination is alleged to be based on a factor other than religion, such as race , color, gender or national origin).

Sex / Gender Discrimination (including Equal Pay and Marital Status)

Title VII of the Civil Rights Act of 1964, as amended, and the Florida Civil Rights Act of 1991 (FCRA) prohibit an employer from discriminating against an employee or an applicant based upon that person’s sex. The FCRA also prohibits discrimination based upon an individual’s marital status. This means that the employer cannot treat an individual (applicant or an employee) unfavorably or harass an employee based upon that individual’s sex or marital status.

Another law that protects against a form of sex discrimination is the Equal Pay Act (EPA). The EPA requires that men and women in the same workplace be given equal pay for equal work. In other words, men and women must be paid equally for performing work that similar in skill, effort, and responsibility. The job title does not determine whether the work is similar, rather the actual job duties must be compared. All forms of pay are covered by this law, including salary, hourly wage, bonuses, stock options, paid time off, allowances, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

Because Title VII and the FCRA make it illegal to discriminate based on sex, someone who has an EPA claim may also have a claim under Title VII or the FCRA.

If you believe you have been discriminated against based upon your sex or marital status, contact our office for a free consultation.