How to correctly pay an employee often can be a complicated question. For example, the federal Fair Labor Standards Act, 29 U.S.C. §201 et seq. (the “FLSA”), was enacted in 1938 at the prompting of then President, Franklin D. Roosevelt, and, among other things, establishes the federal minimum wage and requires the payment of overtime to covered employees who work more than 40 hours per week. Although the FLSA is one of the oldest laws regulating the workplace, it can be very complicated and confusing.  In this regard, the U.S. Department of Labor, the federal agency charged with enforcing the FLSA, has issued hundreds and hundreds of pages (double columned) of regulations and hundreds of opinion letters all interpreting the application of the FLSA. As a result of the complexity of the FLSA, many employers, despite their best efforts, sometimes fail to comply with the FLSA’s requirements, and employes are not paid their full, legal wages.

1. He is paid a salary.  He isn’t entitled to any overtime.
   Generally, employers must pay employees covered by the FLSA a minimum wage of at least the greater of the applicable federal or Florida minimum wage and one and one-half times (1.5) the employee’s regular rate of pay for all hours over 40 worked per week.  However, there are numerous exemptions to such minimum wage and/or overtime pay requirements.
   Many employers mistakenly believe in the myth that any employee who is paid a salary is exempt from the FLSA’s overtime pay requirements. Contrary to this popular myth, an employee is not exempt from the FLSA’s overtime pay requirements, merely because the employee is paid a salary.
   If you have worked more than 40 hours / week, but have not been paid overtime, because you are paid a salary, you may be owed unpaid overtime. Similarly, if you are not paying overtime to employees who work more than 40 hours / week simply because the employees are paid a salary, you may be violating the FLSA.
2. An employee only has to be paid at least $7.25 / hour.
   The current federal minimum wage, as set by the FLSA, is $7.25 / hour. However, Florida has a separate and higher minimum wage that currently is $13.00 / hour and is scheduled to continue to increase yearly.
   Also, an employer may violate the law even if the employer pays the applicable minimum wage. Factors such as wage deductions and costs incurred by an employee to purchase or maintain required uniforms or other necessary tools or equipment may result in a minimum wage violation, even if the employee at issue is paid the full minimum wage.
   If an employee is required, either by the employer, applicable law, or the nature of the work, to wear clean uniforms, the employee must be reimbursed for the costs of obtaining and/or maintaining the uniforms where the costs reduce the employee’s wages below the applicable minimum wage.
   Some employers make deductions from an employee’s wages for cash register shortages, customers not paying and other similar reasons.  If those deductions by an employer reduce an employee’s wages below the applicable minimum wage, the employer has violated the law.
   If you are being paid less than $13.00 / hour and/or your employer is making deductions from your pay for things like uniforms or customers not paying, you may be owed additional pay. Similarly, if you are not paying your employees at least $13.00 / hour and are making deductions from your employees’ wages for uniforms or disciplinary reasons, you may be violating the law.
3. Waiters and other tipped employees don’t have to be paid anything by their employers, because they make plenty of money from tips.
   Some employers believe they don’t have to pay any wages or only minimal wages to a waiter or other tipped employee who receives tips.  Although waiters and other tipped employees may receive significant compensation in the form of tips, they are still entitled to receive at least the full minimum wage. In some limited situations an employer may take advantage of what is known as the “tip credit” and pay a tipped employee direct wages that are less than the full minimum wage. However, employers often misapply the “tip credit.”  For example, an employer may not properly use the “tip credit” and would owe a tipped employee the full minimum wage applicable for every hour worked, if the employer retained a portion of the tips or required the tipped employee to share some of the tips with non-tipped employees.
   If you are a waiter, bartender or some other tipped employee and are only making tips, have to share your tips with managers or the employer, or are only being paid minimal wages by your employer, you may be owed additional pay. Similarly, if you are not paying tipped employees anything or only minimal wages or are keeping any portion of the employees’ tips or require tipped employees to share their tips with non-tipped employees, you may be violating the FLSA.
4. He is an independent contractor. I don’t have to pay him at least the minimum wage or any overtime.
   Workers often are not paid at least the minimum wage or any overtime, because they are classified as an independent contractor. While the minimum wage and overtime pay requirements do NOT apply to independent contractors, employees often are wrongly classified as independent contractors. There is no bright line test to determine if a worker is correctly classified as an independent contractor an employee. Instead, various factors need to be considered on a case-by-case basis; and the FLSA, for example, defines “employee” broadly and is interpreted in favor of finding a worker to be an employee instead of an independent contractor.
   If you are not being paid at least the applicable minimum wage or overtime, because you are considered an independent contractor, you may be owed additional pay. Similarly, if you are not paying workers at least the applicable minimum wage or overtime, because you are treating them as independent contractors, you may be violating the FLSA and other pay requirements.

Although every job is different and must be evaluated on a case-by-case basis, the following is a sample list of jobs with common wage violations for those jobs:

• Medical Assistants.
  • Medical assistants often are paid a salary but no overtime in violation of the law.
• Waiters/ Servers / Bartenders.
  • Waiters / Servers / Bartenders often are not properly paid, because they are not paid for “side work,” their overtime is not calculated correctly, and/or they are required to share their tips with non-tipped employees or required to participate in an improper tip pool.
• Assistant Managers.
  • Even though they are paid a salary, assistant managers may also be entitled to overtime if they work more than 40 hours / week.
• Warehouse workers.
  • Warehouse workers often are not properly paid, because they are not properly paid for all hours worked or are not paid overtime even though they worked more than 40 hours / week.
• Secretaries / Receptionists.
  • Medical assistants often are paid a salary but no overtime in violation of the law.
• Construction workers / roofers.
  • Construction workers / roofers often are not properly paid, because they are misclassified as independent contractors, are not properly paid for all hours worked or are not paid overtime even though they worked more than 40 hours / week.
• Administrative Assistants.
  • Administrative assistants often are paid a salary but no overtime in violation of the law.
• Salesmen/Saleswomen.
  • Even though they are paid a salary and/or commissions, salesmen / saleswomen may also be entitled to overtime if they work more than 40 hours / week.
• Paralegal / Bookkeeper.
  • Paralegals / bookkeepers often are paid a salary but no overtime in violation of the law.
• Mortgage brokers / agents.
  • Mortgage brokers / agents often are paid a salary but no overtime in violation of the law.

Florida is an “employment at will” state, which means an employee generally can be discharged or disciplined at any time and for any reason. However, there are a number of federal and State of Florida laws that govern the workplace and prohibit certain types of employment discrimination, harassment and/or retaliation. Many municipalities and counties in Florida also have ordinances governing the workplace that also prohibit certain types of employment discrimination, harassment and/or retaliation. Such laws prohibit, among other matters, discrimination and unlawful harassment in employment against an individual on the basis of:

• race,
• color,
• religion,
• gender (including pregnancy),
• national origin,
• age,
• disability / handicap,
• sexual orientation,
• military service
• HIV + / AIDS, and
• Serving Jury Duty.

Since Florida is an “at-will” employment state, many workers in Florida do not have employment contracts. However, employment contracts often are important to protect both the employer and the employee. Employment contracts can address a number of different topics, including:

• Duties and responsibilities of the job;
• Salary, bonuses, commissions and other compensation;
• Vacations, sick leave and other paid time off’
• Employee benefits, like health, vision, dental, disability and/or other insurance;
• The term of the contract and under what circumstances the contract can be terminated by the employee, the employer or both;
• Restrictive covenants, like non-compete, non-solicit and confidentiality provisions;
• The law or laws that will govern the relationship; and
• How disputes will be resolved.

While employment contracts can be used at the start of, or during , the employment relationship to set out the parties’ rights and obligations, severance and separation agreements are used at the end of the employment relationship to establish the parties’ rights and obligations as they go their separate ways. Severance and separation agreements usually include some form of release.  It is critical for employer and employees to fully understand what claims are covered by the release.

Whether you are an employee or an employer, it is critical that you understand each clause in, and all of your rights and obligations under, an employment contract or a severance / separation agreement. An experienced employment lawyer can draft, review and help negotiate employment contracts and severance / separation agreements to maximize the benefits and protections for the employee or employer.

In today’s economy and business environment, a company’s customers, employees and other workers, and confidential information, such as trade secrets, often are the company’s most valuable assets. Companies often use non-compete, non-solicit and non-disclosure / confidentiality agreements to protect such assets and limit or prohibit competition by an employee or independent contractor during and/or after termination of employment or engagement. However, such agreements can significantly affect a worker’s ability to change jobs and make a living.

While it did not address non-solicit and non-disclosure / confidentiality agreements, the Federal Trade Commission (FTC) in early 2024 issued a final rule that essentially bans most “non-compete clauses” and imposes certain requirements on employers who have “non-compete clauses.” The FTC’s final rule has not gone into effect yet, and non-compete, non-solicit and non-disclosure agreements generally are enforceable so long as they satisfy certain requirements under Florida law.

For example, non-compete agreements, generally speaking, are enforceable in Florida, if they are:

1. In writing and signed by the party against whom enforcement is sought;
2. “Reasonable” as to time, area and business activity that is prohibited or limited under the agreement;
3. Related to the protection of a “legitimate business interest.”

Employee handbooks and policy manuals can be effective tools to carefully and clearly explain a company’s policies and procedures. While generic / “canned” employee handbooks and policy manuals are prevalent on the internet, there really is no “one size fits all” handbook or manual.  Instead, employee handbooks and policy manuals should be specifically tailored to an employer’s business and workforce. Whether, to what extent and in what form to include a particular policy in an employee handbook/manual depends on a variety of factors. However, the following is a list of policies that employers should strongly consider including in an employee handbook / policy manual:

• Employment at Will
• Equal Employment Opportunity
• Background Checks
• Immigration Compliance / Verification
• Hiring Relatives
• Employment Status
• Introductory / Probationary Period
• Job Duties
• Working / Office Hours & Schedule
• Timekeeping Procedures
• Overtime
• Payment of Wages
• Automatic Deposit
• Business Expense Reimbursement
• Prohibited Conduct
• Conduct Outside of Work / Social Media
• Drug & Alcohol Abuse
• Punctuality & Attendance
• Investigations of Current Employees
• Performance Evaluations
• Confidentiality
• Insider Trading Policy
• Policies against Workplace Violence
• Use of Company Equipment
• Use of Technology and the Internet
• Use of Stationary & Mail Services
• Visitors Security
• Solicitation & distribution of Literature
• Health & Safety
• Personal Appearance
• AIDS Policy
• Use of Company Vehicles
• Paid Holidays
• Vacation / Sick Leave / PTO
• Insurance Benefits
• Retirement and/ or 401-K Benefits
• Leaves of Absence (including Maternity)
• Military Leave
• Maternity Leave
• Parking
• Workers’ Compensation
• Loans and Advances
• Reimbursement of Expenses
• Uniforms
• Voluntary Terminations
• Involuntary Terminations
• References

Contracts often are at the heart of a dispute that arises during the buying, selling or financing of real property.  In fact, any agreement for the sale of real property or to lease real property for a period of more than 1 year must be in writing to be enforceable under Florida law. The Diaz Law Firm, P.A. has helped both buyers and sellers of real property understand their rights and obligations under real estate contracts, manage the risks associated with real estate contracts and has vigorously represented our clients in court or arbitration when necessary.

Florida has separate residential and commercial landlord – tenant laws that create different rights and obligations for both landlords and tenants.  When you also consider rights and obligations created by a particular lease, the landlord- tenant relationship can be difficult to navigate and full of pitfalls.  Whether it is an unpaid rent, security deposit, failure to vacate, damage to the premises, failure to maintain the premises, or other dispute, The Diaz Law Firm, P.A. has represented numerous clients in commercial and residential landlord-tenant disputes.  We can help residential and commercial landlords and tenants in various ways.

Title III of the Americans with Disabilities Act (the “ADA”) requires property owners, tenants and business owners to make “places of public accommodation” accessible to individuals with disabilities.  Such requirements are complex and have led to many lawsuits filed.  More Title III ADA lawsuits are filed in Florida than about every other state. The Diaz Law Firm, P.A. has represented numerous property and business owners defending Title III ADA claims.