Wrongful Termination Laws

“Most people work just hard enough not to get fired and get paid just enough money not to quit” 

-George Carlin

If you have read the newspaper or watched television over the last few days, you have no doubt heard about a major shootout with law enforcement officers by a disgruntled employee. By all accounts, this employee believed that he was wrongfully terminated due to his reporting to his superiors of improper conduct by a fellow employee.

As a result of this employee’s firing and what he saw as discriminatory action towards him, terrible carnage ensued--- with both law enforcement officers and civilians being brutally killed.

The ultimate end of the entire matter was a hail of bullets, and the former employee dying in a blaze of fire. In the middle of all this chaos, the employee’s former employer stated that it intends to reopen his case to presumably now re-confirm whether his termination was justified.

I have received numerous questions, and opinions surrounding the circumstances of this individual’s termination. I can only shrug my shoulders to understand what mentally happened leading to this shooting rampage. But, it does appear, that a belief of a wrongful termination was the spark that started the raging inferno that followed.

Based on the numerous inquiries referenced above, I am compelled to discuss in general terms, what rights a person may have if they believe they are wrongfully terminated. Additionally, I will discuss what careful steps an employer should take to try and minimize exposure to a wrongful termination claim based on salary/overtime or a claim of discrimination.

Florida Employment Law

Florida is an “at-will” employment state. Employees and employers can terminate employment for any reason. This is a concept that is lost upon many people, and often asked about. People do not realize that an employer does not need “cause” to fire an employee.

That being said, there are some circumstances where it is wrongful for an employer to terminate an employee. Some general reasons for termination of employment that are illegal include, but are not limited to, the following: Termination in violation of federal and state anti-discrimination laws; Termination as a form of sexual harassment; Termination in violation of an oral or written employment agreement; Termination in violation of labor laws, including collective bargaining laws; Termination in retaliation for the employee’s having filed a complaint or claim against the employer.

Some rights provided by Federal law include the following: it is illegal to terminate or discriminate against employees on the basis of race, color, national origin, sex, religion, disability, pregnancy and age. It is also a violation for employers to consider these characteristics with regard to promotions, job assignments, and wages.

In an attempt to protect employees, Florida's constitution and state statutes enforce wrongful termination laws. Employers must also abide by federal laws enforced by the United States Department of Labor, Fair Labor Act, The Civil Rights Act, and the Occupational Safety and Health Administration (OSHA).

Basic Florida Law

Three Florida doctrines define wrongful termination. Florida's Constitution Article I, Section 6, guarantees a person's right to work and join labor unions. Florida's statutes--Chapter 448, sections 448.01 to 448.110—describe employees’ rights and remedies under the law.  Florida's Civil Rights Act of 1992, Chapter 760, Part 1, sections 760.01 to 760.11 prevents employers from discriminating on the basis of race, color, religion, sex, national origin, age, handicap or marital status.

Basic Federal Guidelines

In addition to Florida law, the state must apply the Federal Fair Labor Standards Act of 1938. Managed by the United States Department of Labor, it mandates minimum wages, overtime pay, record keeping, and child labor standards for private businesses and government workers. Military members' reemployment rights are protected by the Veteran Employment and Training Services (VETS), and OSHA's Whistleblower and Non-Retaliation Protection Act protects employees who complain about an unsafe or unhealthy workplace, environmental problems, and public safety hazards and securities fraud.

Quoting, Laurie Senese, “Wrongful Termination Laws in Florida.” 

Wrongful Termination based on Discrimination 

The steps to take in filing a claim based on discrimination are as follows:

File a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). This must be done within 300 days of the incident of discrimination and is a necessary prerequisite before filing a law suit. There are some exceptions to having to file an EEOC claim prior to filing a lawsuit. These should be discussed with your legal counsel.

 

Wait to find out the result of the EEOC investigation. Sometimes the EEOC files a lawsuit on your behalf. The organization weighs many things in its decision, including how bad the violation is as well as what effect a law suit could have on employee’s rights as a whole. There are situations where the EEOC may investigate and find possible evidence of discrimination, but still decide not to sue. If the EEOC decides not to file a lawsuit on your behalf, it will issue a Notice-of-Right-to-Sue.

Quoting, Mike Bell, “How to File for Wrongful Termination in Florida.”

It is highly recommended that you hire a lawyer for a wrongful termination claim based on discrimination because there are very complex state and federal laws that may affect the legal relief you obtain. It could also be that, upon further review of the specific facts of your potential case, your employer may be in violation of multiple state and federal laws.

Damages generally available to wrongfully terminated employees based on discrimination may include back pay, promotion, reinstatement, monetary damages, reasonable accommodations, injunctive relief, punitive damages, and attorney’s fees. 

The Employer’s Perspective

Wrongful termination is defined as the action of firing an employee without a proven and legitimate cause.  Some cases of wrongful termination include firing an employee based on his or her race, gender, religious beliefs, etc.  It’s true that even in cases of legitimate and proven termination, employees may file wrongful termination lawsuits.  Here are some tips on how to avoid wrongful termination suits.

Each state is different when it comes to termination and wrongful termination laws.  It’s important to become familiar with those laws as well as past wrongful termination lawsuits. This knowledge will help employers create policies up front that are consistent and legal.  Studying laws for the purpose of creating termination policies will help keep businesses above board and in line with the applicable laws and cases.  By learning from past wrongful termination cases in other scenarios, employers can gain a finer understanding of what is typically accepted and what is not.

Before termination, most employers dole out disciplinary actions against employees.  Depending upon company policy, your company should give employees at least 3 warnings or follow acceptable procedures before the employee is terminated. 

It’s extremely important to document any disciplinary actions as soon as they take place.  Also, have your employee sign a copy or statement of each and every disciplinary action right away.  This helps shield your company from a wrongful termination suit because it proves that other alternative and reasonable actions were taken in an attempt to remedy a situation before an employee was terminated.

If termination seems like the only reasonable course of action, gather all case files and review them with the Human Resources department, or if none exists, the individual in charge of employee management.  Consider any other available options which may remedy the situation and keep your company from being involved in a wrongful termination suit.

Compare the employee’s file and the events which have earned disciplinary action, with other disciplinary actions against employees in similar situations. Make absolutely sure that your disciplinary actions are always consistent with each employee. Review your state laws and statutes with your lawyer, and any applicable Federal laws, to determine whether termination is an appropriate action.

It cannot be stressed enough that, as a business owner, if you feel as though an employee about to be terminated may file for wrongful termination, absolutely consult with an attorney before making any decisions.  It is important to provide your attorney with all important documents regarding the employee and the reason termination is desired.  Also, in order to minimize claims based on overtime and wages, discuss all the necessary documents that you should keep to defend against a wage or overtime claim, and discuss with your legal counsel what type of records you should be keeping to avoid a claim based on the Fair Labor Standards Act, or a claim based on discrimination.

Quoting, www.LawFirms.com.

We may never know why certain individuals lose touch with reality and resort to tragic and violent actions to express their frustrations with employer decisions.

What we do know and can control, is maneuvering through the many federal and state laws potentially applicable to termination decisions. This must be done very carefully.  It cannot be stressed enough that employment laws are complex, and whether an employee is evaluating filing a wrongful termination lawsuit, or an employer is considering terminating an individual---extreme care must always be taken.

~Leonardo G. Renaud

Federal Marijuana Policy---Up In Smoke?

Before I came here I was confused about this subject. Having listened to your lecture I am still confused.  But on a higher level.

-Enrico Fermi

As with all my posts, this one is especially written not to endorse or criticize any lifestyle choices, but only to share information about a subject that I was recently asked about. Much to my embarrassment, I had absolutely no information that I could provide. Researching the topic opened up a host of interesting issues to consider.  In fact, it is this writer’s opinion that many persons who read this post will be just as surprised as I am by the phenomenon that appears to be sweeping the nation. This phenomenon is the rapidly growing number of states legalizing the use of marijuana.

The issues generally addressed in this post are as follows: Should states allow individuals to legally purchase marijuana for medicinal or recreational purposes? How does state law regarding marijuana reconcile with federal law? What is the status of Florida law regarding the legalization of marijuana?

The States’ Perspective

Although federal law unequivocally prohibits the sale or possession of marijuana, many states have legalized marijuana for medicinal use, such as: cancer, glaucoma, suppressing nausea associated with chemotherapy, mitigating the effects of multiple sclerosis, muscle spasms, seizures, hepatitis C infection, Crohn’s disease, as well as various other chronic and painful medical symptoms.

As of this posting, the following states allow marijuana to be used for medicinal purposes: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia.

In addition to those states (and DC) that permit marijuana to be used for medicinal purposes, Colorado and Washington legalized marijuana for recreational use. 

According to Oregon Congressman Earl Blumenauer, over 2 million people are incarcerated in the United States. This is more than any other country in the world. 

Fifty percent of all federal inmates are there for drug-related crimes. This is a major part of the reason that spending on corrections has increased at a much higher rate than spending on higher education in the last 20 years.

Proponents say that making marijuana legal will create new avenues of tax revenue, and save a tremendous amount of taxpayer money because there are over 660,000 persons in the justice system serving time for simple possession. This costs taxpayers millions of dollars. People are serving time for using a drug that nearly half the nation’s population believes should be legal.

According to NBC Politics.com, a Gallup poll released in October of 2011 found that 50 percent of Americans favor legalizing marijuana. A decade ago, only around 34 percent were in favor.

Proponents point out that very high concentrations of doctors in almost 20 states prescribe marijuana. Simply put, how can so many doctors all be wrong about the medical value of marijuana?

The American Medical Association, American College of Physicians, and the American Nursing Association all support the legalization of medical marijuana.

The Federal Government’s Perspective

Growing, selling, or possessing any amount of marijuana is illegal according to Federal law. There is no such thing as “medical” marijuana under Federal law.

State laws legalizing marijuana for recreational use or other purposes can face federal challenges, because marijuana possession is still a federal crime. 

Pursuant to the Office of National Drug Control, the federal government considers marijuana to be a Schedule I controlled substance under the Controlled Substance Act. As a Schedule I drug, marijuana is classified under the following criteria:

1. The drug has a high potential for abuse.
2. The drug has no currently accepted medical use in treatment in the United States.
3. There is a lack of accepted safety for the use of the drug under medical supervision.

The Office of National Drug Control also advises that the Food and Drug Administration approves medical use of isolated components of the marijuana plant and related synthetic compounds. This includes THC, the active ingredient in marijuana.

The drugs, Marinol, Cesamet, and Sativex all combine THC (or a similar chemical structure) with other ingredients. These drugs, it is argued, provide therapeutic benefits without the “high” from marijuana, and are acceptable to the Federal government.

Marijuana is not allowed on Veterans Administration medical facilities, and no VA-licensed pharmacy may dispense it, regardless of state law. It is explicit VA policy to prohibit VA treatment providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a state marijuana program.

The Justice Department has not shown any clear mandate on how it intends to address state laws that have been passed permitting the use, possession, and growth of marijuana. Federal law enforcement officials are concerned that marijuana users in pro-marijuana states are openly ignoring federal law.

According to the New York Times, one option being discussed is for federal prosecutors to file cases against low-level marijuana users and wait for a person to defend the case by arguing that the drug is legal in the state. The Justice Department can then seek to obtain a court ruling that federal law prevails over state law.

More aggressive options being considered, are for the Justice Department to file multiple lawsuits against the pro-marijuana states, seeking to prevent them from setting up any system to regulate or tax marijuana, or completely cut off federal grants to states that refuse to repeal their pro-marijuana laws.

In response to the State of Washington’s passage of marijuana use for recreational purposes, the United States Attorney in Seattle, Jenny A. Durkan, responded as follows: “In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. Regardless of any changes in state law, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

The Department of Justice’s enforcement’s policy thus far is to not use limited resources to go after small-time users, but, instead, go after large-scale trafficking organizations.  According to the New York Times, this policy is leading to more federal raids on marijuana dispensaries. This is occurring more than pro-marijuana proponents expected.

According to the Office of National Drug Control, “it is not likely an efficient use of federal resources to focus enforcement efforts on individuals with serious illnesses who use marijuana as a part of a recommended treatment regiment consistent with applicable state law or their individual non-commercial caregiver.”

Florida’s Perspective

In Florida, marijuana is still a Schedule I substance. Possession of more than 20 grams is a felony, punishable by up to five years in prison. There is a medical necessity “defense,” for possession, but it cannot be invoked until someone has already been arrested and charged.

Marijuana proponents are failing to make headway with the Florida Legislature.

Using an alternative strategy, efforts are being made by activists to educate the Florida Attorney General regarding the pro-marijuana agenda. Proponents assert that the Florida Attorney General can remove a drug from Schedule I, if she finds that additional testing, approvals, or scientific evidence indicate that controlled substances have a greater potential for beneficial medical use in treatment than was evident when originally classified.

Florida activist, Jodi James, hopes that at least a modest victory may be obtained.

Says James, “In Florida, if we cannot remove the criminal penalties for cannabis, we could at least push the criminal threshold for possession to 2 ounces, instead of the current 20 grams.” “We could make 2 ounces a felony, make the rest a fine and be no more liberal than Texas.”

“When you talk about a hotbed of conservatism or liberalism, we know where Texas falls.”

For the time being, it appears that the states and the Federal government are at a stalemate as to whether Federal law is going to be actively enforced, and how states will respond. No major efforts by the Department of Justice appear to be taking place at the moment, but as history always shows; political agendas are constantly in a state of flux. 

 -Leonardo G. Renaud

Teachers With Handguns, What's The Lesson?

”Gun control is like trying to reduce drunk driving by making it tougher for sober people to own cars.”

~Unknown

The question raised in this post is the following:

“Should teachers be allowed to carry concealed weapons in schools to protect children, as well as themselves?”

I am compelled to write this post due to the wave of discussion that is at the forefront of the arguments being made by politicians and school officials, who all appear to be desperately trying to stop the senseless massacres in our country.

This post, as my prior post regarding the laws concerning gun permits/equipment, is not to argue one side versus the other, but to serve as an informational discussion regarding an important and growing phenomenon that has compelling arguments on both sides.

People must consider the extent that schools are trying to protect their children, after the mass shootings that appear to be happening on an increasingly frequent basis.

What is frightening for all of us, is that there appears to be no clear explanation for the increasing frequency of mass shootings, other than there are a growing number of deranged people who are looking to make themselves famous by committing atrocious acts against the most defenseless of all people---children.

Why these acts are directed at school children, in this writer’s opinion, is because children are the most vulnerable, they are in a confined space, there are many of them in one area to allow for more carnage, and the reaction to shooting children results in the shooter receiving the most amount of media attention for an act that is about the worst form of slaughter imaginable.

Pro-gun philosophy

The U.S. Congress once barred guns at schools nationwide. The U.S. Supreme Court struck down that law, with the caveat that state and local communities can adopt their own laws regarding this issue.

The President of the United States has called for more, not less, gun control after the massacre of children in Connecticut via banning assault rifles and limiting equipment that enhances the deadliness of guns. The federal government has very little power over what measures a state passes regarding guns in schools.

In October 2007, the superintendent of a small 103 student school district started “The Guardian Plan.” The superintendent of the “Guardian Plan” allows teachers to carry weapons in the classroom. Participating staff are anonymous and known only to the superintendent and the school board, which must approve each application for an employee to become a Guardian.

As one of the reasons for the “Guardian Plan," the superintendent referred to a police officer who told him that “Ninety-five percent of the time, we get to the scene late.” The superintendent’s response was that “I cannot afford to let that happen.”

The superintendent also stated an interesting thought, “These shooters, even though they are evil and have mental problems, they inevitably know where they are going. They are going where they won’t get any resistance. Let’s put it this way, would you put a sign in front of your house that says, ‘I am against guns. You will find no resistance here?’ That would be a stupid thing to do. You’re going to invite people who like to take advantage of helpless individuals.”

The Guardian teachers must use “frangible” bullets that break apart when colliding with a target. These bullets are glued together with polymers and do not ricochet off walls when fired so as to reduce any chance of a child getting hit.

Utah and Colorado currently do not restrict concealed weapons (in the hands of permit holders) on state universities and college campuses. Further, the State of Utah allows permit holders to carry a handgun in elementary and secondary schools.

As of the date of this post, Tennessee, South Dakota, Alaska, Maine, Oklahoma, Virginia, South Carolina, Washington, Oregon, Wyoming, Arizona, Nevada, Minnesota, and Missouri are all attempting to pass bills that might allow teachers or school staff to carry guns.

Tennessee already has experience with armed school staff protecting children. In a standoff two years ago, a resource officer held off a gunman who stormed into Sullivan Central High School. She was able to delay him for ten minutes until the sheriff’s office was able to arrive and fatally shoot him.[1]

Alabama, California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Iowa, Kentucky, Massachusetts, Mississippi, Montana, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, Texas, Utah, Wyoming, all allow adults to carry loaded weapons onto K-12 schools, or college campuses, with different conditions. Some of these states have the requirement that the school board of a particular location grant permission.

Clark Aposhian, chairman of the Utah Shooting Sports Council, sums up the gun-advocate philosophy as follows: “Gun-toting teachers are a deterrent when the bad guy comes in. He could be surprised by return fire from any direction. We are not expecting teachers to go out and actively engage the shooter. We want them to do the lockdown drill they have been trained to do.” “But it all fails when someone breaks into a classroom. This is where having a firearm would be a better choice than diving in front of the bullets to protect the kids.”

Anti-gun philosophy

In Indiana, a spokesperson for the Indiana Department of Education, said that she didn’t know of any school district in the state that allows teachers to carry guns, although it is not prohibited by Indiana law.  Gun-rights advocates emphasize that they do not think teachers should be required to carry guns, only that they should have the option and be extensively trained. There are firearms instructors who are offering free classes to people with gun permits, who are authorized by a school, to carry a weapon.

The contrary argument is that the proliferation of firearms on school property is not good for kids.  Some of these anti-gun proponents believe that arming a teacher could have serious consequences. The president of the Indiana State Teachers Association stated the following, “. . . where would a teacher keep a gun—in his or her desk or a holster? What if the teacher had to break up a fight? A student might be able to take the gun away. And if a gun is fired, where should the teacher aim to avoid a stray bullet hitting someone?”

While a concealed weapon permit allows the permit holder to carry a concealed gun in public, there are many public areas that generally do now allow a gun to be carried.

These include such venues as: Federal government facilities, State government facilities, Venues for political events, Professional sporting events, Amusement parks, Business that sell alcohol, Hospitals  (with very few exceptions), Churches, Municipal mass transit vehicle or facilities, and Airports.

In Utah, a chief lawyer for the Utah Office of Education stated that arming teachers is a bad idea “because teachers could be overpowered for their guns or misfire causing an accidental shooting.”

Ken Trump, an Ohio safety consultant, has indicated that arming teachers is “borderline insanity.”

“I support the Second Amendment.” I believe in concealed carry. But there is a huge difference between my right to be armed to protect myself and my family versus me being tasked with a public-safety function to protect the masses.”

Trump went on to say that “to allow armed staff would be an implementation nightmare.” “You’re asking schools, in essence to operate a quasi-law-enforcement agency, which is far beyond their expertise, and far beyond their capacity.”

Several Tennessee lawmakers have drafted legislation that would encourage school districts to place at least one armed officer in every school and would allow teachers who have undergone special training to bring their personal handguns into schools.

The response has not been popular with the Tennessee Education Association. The Director of Loudon County School, has gone on the record stating that he does not believe that “teachers should have to carry guns to school, and that should be left to the professionals.” 

The president of the Tennessee Education Association has further indicated that “teachers should be focused on teaching and not have to worry about trying to stop an intruder.”

State representative Darren Jernigan, who is strongly opposed to teachers with guns in schools, has stated that teachers “have a mentality of nurturing students, a mentality of educating students, but not necessarily of defending them with arms.” “If they wanted to go into law enforcement, I think they would have.”

The American Federation of Teachers and the National Education Association[2] have both campaigned against the measure of allowing teachers to carry concealed weapons in schools.

Regardless of a person’s opinion regarding the above, it appears that the pro-gun advocates in schools are growing. Time will tell whether this option is successful; however, both sides do agree that lawmakers cannot continue to play politics, argue, and do nothing.

-Leonardo G. Renaud

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[1] This Thursday, January 31, 2013, a student opened fire in a middle school, wounding a 14 year old child. An armed staff member, who happened to be off –duty, was able to overpower the shooter and take his gun away. Hours after the shooting, buses loaded with children stopped at a church close to the school, with parents frantically trying to board the buses to find their children. Luckily, the child who was shot in the neck survived the savage attack.

[2] The largest professional organization and labor union in the United States.