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01/19/12 It's The Law: Florida Is An Employment At Will State

Question: I heard that in Florida an employer can fire you for any reason at all. Is that correct?

Answer: Florida is an employment at will state. Unless the employment contract provides differently, the employer or employee can terminate the arrangement at any time.

If the contract for employment contains a definite term, the arrangement is no longer employment at will. A contract with a definite term can be terminated prior to its natural ending, but termination must be for good or just cause. Determination of whether an employee has reached the terms of an employment contract to such a degree as to justify discharge is usually a question of fact. It will be decided by review of employment requirements and actual performance by the employee.

Florida courts have consistently held that unless the contract has a definite term for employment, it is terminable at will regardless of the manner in which the rate of pay is stated. Payment in terms of annual salary does not mean the duration of employment is 1 year.

In Florida, employee expectations are not enough to create a binding term of employment. Statements made by an employer or provisions in an employee manual also do not become part of an employment contract in Florida. In one Florida case, the written employment contract contained language indicating that the employee would be transferred to Ecuador for 28 months. The contract also referred to the employee as "a permanent employee of the firm" and set out annual leave based on length of service, including 3 weeks per year after the first 5 years. The court held the contract was one for permanent employment with no definite duration, the 28 month assignment to Ecuador was merely an expectation and the contract was terminable at will.

Although at will employees can generally be discharged any time, discharge cannot be for a reason prohibited by law. In Florida, an employee cannot be discharged for serving on jury or testifying as a witness. Employees are also protected by Florida's Whistle Blowers Act, which prohibits retaliatory personnel action against an employee because an employee disclosed, threatened to disclose or cooperated with a governmental agency in investigation of the employer or the employee objected to or refused to violate a law, rule or regulation. A recently passed law prohibits employers from firing employees for possession of a firearm in the employee's car while on company property.

Although the employment at will doctrine is the law in all states, many states have carved out exceptions by statute or court decision. At least 43 states have a public policy exception. In those states, an employee cannot be discharged if termination is against the well established public policy of the state.

A majority of states have also adopted an implied contract exception. That exception creates contract terms where the employer has made representations to an employee regarding job security or procedures. Unlike Florida, the employee manual or contract provision for a 28 month assignment in Ecuador would likely create an implied contract term.

A small number of states have also adopted a good faith and fair dealing exception. In one Nevada case, Kmart hired an employee to work until retirement or as long as economically possible. The employee was terminated and the jury found termination was to avoid Kmart having to pay the employee retirement benefits. The court found the termination to be in bad faith and allowed recovery of damages.

Even in Florida, an employer is bound by contract terms and wrongful termination can create employer liability. The facts and circumstances of each case will be controlling. If you are involved in such a case, you should consult with an experienced attorney at the earliest opportunity.

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