Presumption of No Negligence in Hiring in Intentional Tort Action if Proper Background Check is Conducted – In situations where an employer is the subject of a civil action for wrongful death, personal injury, or damage to a third person caused by the intentional tort of the employer’s employee, the employer is entitled to a presumption that it was not negligent in hiring the employee if it had conducted a pre-employment background investigation of the employee and “the investigation did not reveal any information that reasonably demonstrated that the person was either unsuitable for the particular work or for the employment in genera1.”

A background investigation under the statute must include:

  •  Obtaining a statutorily compliant criminal background investigation on the prospective employee;
  •  Making a reasonable effort to contact references and former employers of the prospective employee regarding whether he or she is suitable for employment;
  •  Requiring the prospective employee to complete a job application form including questions relating to criminal convictions, including details concerning the type of crime, the date of conviction, the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for an intentional tort, including the nature of the intentional tort and the disposition of the action;
  •  If relevant to the prospective employee’s position with the company, obtaining, with written authorization from him or her, a check of the prospective employee’s driver’s license record; or  Interviewing the prospective employee.
An employer who chooses not to perform a background check in accordance with the statutory requirements above will not be presumed in the civil action brought by the third party to have negligently hired the employee at issue. (IN OTHER WORDS IT WAS PREMEDITATED AND INTENTIONAL)

Florida Counterpart to the NLRA/ Right-to-Work – Under Florida’s counterpart to the NLRA, employees have the right to refrain from joining a labor union/organization, and employers may not deny or discriminate in employment based on non-membership.

Independent Contractors – A worker providing services for pay is generally considered an employee by Florida regulatory agencies unless the worker meets the requirements of an independent contractor. Failure to properly classify a worker as an employee potentially can result in tax penalties and liability for back wages and overtime under federal law only.

An independent contractor or consultant is not considered an
employee of the employer. Instead, an individual independent
contractor is self-employed, and payments made to the independent
contractor are considered contract payments rather than wages. The
U.S. Internal Revenue Service (“IRS”) and other governmental agencies
have a variety of tests for determining whether a worker is an
employee or an independent contractor, which, despite variations
among the tests, tend to share the same primary factors. Essentially,
workers who are performing the same job and performing under the
same supervision as regular employees are usually deemed to be
employees. Additional factors shared by the various tests include: the
degree of control the employer exercises over the worker’s hours and
manner of performance; whether the employer provides the worker’s
tools and/or employee benefits (e.g., medical insurance, vacation pay);
the length of service; and the method of payment (e.g., is the worker paid hourly or on a project basis).

The consequences of incorrectly classifying an employee as an independent contractor can be far-reaching and expensive (e.g., liability for unpaid payroll taxes and penalties, administrative claims for benefits provided to regular employees, liability for unpaid unemployment insurance and workers’ compensation premiums, increased exposure to governmental audits, and potential exposure to employment-related civil suits and administrative claims).

111 Fla. Stat. § 68.088
112 Fla. Stat. § 92.57
113 Fla. Stat. § 40.271 (1)&(2)
114 Fla. Stat. §§ 92.57 and 40.271 (3)
115 Fla. Stat. § 448.109(2)
116 Broward Cty., Fla. Code. § 26-102(f)
117 Fla. Stat. § 450.045
118 Fla. Stat. § 440.102(3); Fla. Stat. § 112.0455(6)
119 Fla. Stat. § 440.055
120 Id.
121 Fla. Stat. § 443.151(1)
122 Fla. Stat. § 760.10 and Fla. Admin. Code Ann. R. 60Y-2.010

Posting Requirements – In addition to the federal labor law posting requirements, the following are the  specific notice posting requirements for Florida:

Minimum Wage Law Poster (English)
Child Labor Laws Poster
Florida Drug-Free Workplace Poster (if applicable)
Workers’ Compensation “Broken Arm” Poster
Anti-Fraud Notice
Unemployment Compensation Benefits Poster (English)
Unemployment Compensation Benefits Poster (Spanish)




Florida Workers’ Compensation Act – Workers’ compensation is a state program requiring employers to have an insurance policy covering employees for work-related injuries. The law covers all accidental injuries and occupational diseases arising out of and in the course and scope of employment. This includes diseases or infections resulting from such injuries. The law also covers death resulting from such injuries within specified periods of time.

Workers’ compensation entitles an employee to all reasonable and necessary medical care related to the injury. This includes visits to an approved health care provider, surgery, hospital and dental care, prescription drugs, braces, crutches, and other medical supplies ordered by an approved physician. An injured employee may also be entitled to payment for lost wages. If, as a result of the injury, the employee is unable to return to work after more than seven days, the employee is entitled to a portion of the lost income.

An employee is also entitled to lost wages and benefits if he or she is able to work, but earns less than 80 percent of his or her pre-injury wages, or has suffered a permanent loss of a bodily function as a result of the injury.95 If an employee dies as result of a work-related injury, the employee’s spouse, dependent children, or dependent parents are entitled to death benefits of up to $150,000 (with certain exceptions).96
If an employee is injured on the job, he or she must notify the employer within 30 days of either the date of the injury, the date when the injury’s effects first become apparent, or the date when a medical expert first discovers the injury. Within seven days after actual knowledge of injury or death, the employer shall report such injury or death to its carrier, in a format prescribed by the Department of Financial Services, and shall provide a copy of such report to the employee or the employee’s estate. The carrier is then required to send notice to the Department of Financial Services within 14 days of being notified that the worker has been disabled for more than six days.

An injured employee may lose the right to receive benefits if the employer has implemented a drug-free workplace program and the employee tests positive for drugs. Benefits may also be jeopardized if an employee fails to follow safety rules and is consequently injured.

Florida’s workers’ compensation statute also prohibits retaliatory termination of an employee for filing a workers’ compensation claim.

90 Fla. Stat. § 790.251(4)(e)
91 Fla. Stat. §§ 440.02; 440.105(4)00(2)
92 Fla. Stat. §§ 440.02(l) and 440.16
93 Fla. Stat. § 440.13(2)
94 Fla. Stat. § 440.12
95 Fla. Stat. § 440.491(6)(b)
96 Fla. Stat. § 440.16
97 Fla. Stat. § 440.185(1)
98 Fla. Stat. § 440.185(2)
99 Fla. Stat. § 440.185(2)
100 Fla. Stat. § 440.09(7)(a); Fla. Stat. §§ 440.101 and 440.102
101 Fla. Stat. § 440.205
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O C T O B E R 2014 Jackson Lewis P.C.

Termination Process
Employment-At-Will – The default rule in Florida is that, in the absence of a labor agreement or contract for employment for a specified term, employment is at-will. Employers have the right to discharge an employee at any time, for any lawful reason, or for no reason. Notably, personnel policy statements in handbooks do not create an express or implied contract between an employer and an employee. An unambiguous written disclaimer in an employee handbook, however, stating that employment is at-will is beneficial to preserving the at-will employment relationship.

Florida’s Mini-COBRA – For Small Employers – Whereas COBRA applies to employers with groups of or more employees, Florida’s Mini-COBRA applies to groups with 2-19 employees. The Florida Health Insurance Coverage Continuation Act is the state law that provides employees and their dependents the opportunity to extend group health coverage through their employer’s health plan due to certain qualified events if they are not eligible for the federal COBRA program due to the size of the group. A qualified beneficiary must give notice to the insurance carrier within 63 days after the occurrence of a qualifying event.

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