If you are thinking of starting a business or maybe you are already running one and have questions about labor and employment laws, we reached out expert Robin Frank for help answering questions and concerns.
- Is every employee who works more than 8 hours a day entitled to overtime? What is the difference between an exempt and non-exempt employee?
The requirement to pay overtime has nothing to do with the number of hours worked in a single day. Rather, if an employer or employee is covered by the Fair Labor Standards Act (the federal law governing the payment of overtime), then any non-exempt employee working more than 40 hours in a single workweek must be paid overtime compensation. Most employers are covered by the FLSA, and it is the employers’ obligation to maintain accurate time and payroll records. Employees cannot waive their right to be paid overtime, private employers cannot provide “comp time” in lieu of overtime, and even salaried or commissioned employees must be paid overtime if they are not otherwise exempt from the FLSA (the manner in which the employee is paid simply changes how you calculate the overtime compensation). Whether an employee is exempt or non-exempt from the FLSA is a dependent upon the employees’ actual day-to-day job duties and responsibilities; it is not dependent on job titles. The most commonly encountered exemptions are the “white collar exemptions”: the executive, administrative and professional exemptions, which can cover certain management level employees and executives. Outside sales force employees can also be exempt, as well as certain licensed professionals, such as doctors and lawyers. Misclassifying an employee as exempt can be an expensive mistake as an employee who was not properly paid overtime compensation can file a lawsuit to recover unpaid overtime going back up to three years from when they file the lawsuit, an equal amount as liquidated damages, and can recover their attorneys’ fees and costs.
- Am I required to maintain certain types of records on my employees?
Yes. Different laws have different requirements, depending on the size of the employer and the type of business. Under the Americans with Disabilities Act and Title VII of the Civil Rights Act (which apply to employers with at least 15 employees), employers must maintain contents of an employee’s personnel file, including payroll information, job descriptions and evaluations for one year after employment ends; under the Age Discrimination in Employment Act (which applies to employers with at least 20 employees), employers must maintain the same records, but for three years, and must also maintain records of employees’ birthdates.Under the FLSA, employers must maintain payroll and time records for three years, but Florida’s minimum wage laws requires employers to maintain these records for five years. Many employers don’t realize they must retain all documents from the interview process for applicants who are not hired, such as resumes, applications, internal notes from an interview, etc. for two years from the date someone else is hired for that position. There are many more documents which employers are required to maintain, but in general, employers should err on the side of caution and maintain as many documents as possible.
- Is documentation or good cause essential for me to fire a poor employee?
Florida is an at-will state, which means an employee can be fired for any reason or no reason, so long as it is not an illegal reason. The only illegal reasons are race, gender, ethnicity, marital status, pregnancy, national origin, religion, etc. You do not need to give notice or have good cause. However, properly documenting the employee’s performance, wrongdoing, disciplinary issues and termination is simply good business practice.
- Are non-compete and non-solicitation agreements enforceable in Florida?
Restrictive covenants, such as non-compete and non-solicitation agreements, are enforceable in Florida so long as they are supported by a legitimate business interest, and are reasonable both in terms of geographic and temporal scope. Hiring a new employee or continued employment for an existing employee is sufficient consideration for enforcing a restrictive covenant. Every employer should consider whether it would harm them if an employee went to work for a competitor or solicited its customers. If so, you should consult with a labor and employment attorney to determine whether there is a legitimate business interest to support a restrictive covenant, and have the attorney draft an appropriately narrow or broad covenant in line with your business needs.
- Do I need to provide my employees lunch or coffee breaks? Do I have to pay them for these breaks?
Neither Federal nor Florida law require lunch or coffee breaks. However, if you offer a short break (usually lasting about 5 to 20 minutes), those breaks must be paid. Bona fide meal periods though (typically lasting at least 30 minutes) do not need to be paid so long as the employee is completely relieved from all work.
Robin I. Frank is a partner with Boca-Raton based Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida. For more information, email firstname.lastname@example.org.