Labor and Employment Law


Labor and Employment Law

Issues involving labor and employment law can affect practically any company and any worker. Attorney Santiago J. Padilla in Miami, Florida, has handled many cases over his 30-year career involving a wide range of legal issues that affect both employers and employees.  Mr. Padilla has represented clients in areas such as:

  • Wage and hour claims. These cases involve claims with respect to payment of wages, hours worked, overtime claims, payment of tips, commissions payments, fixed-fee salaries and other compensation matters.
  • Employment discrimination, retaliation and whistleblower claims. These are workplace claims of discrimination based on one or more factors such as age, race, sex, disability or sexual orientation. Mr. Padilla also represents clients facing retaliation by an employer for reporting illegal activities.
  • Employment and separation agreements. This area of employment law deals with the hiring and termination of employees.
  • Unemployment compensation. When employment is terminated by an employer, the employee might make a claim to receive unemployment compensation benefits. 
  • Independent contractors. Whether a worker is classified as an employee or an independent contractor can have a significant impact on that worker's eligibility for certain benefits.

Wage and Hour Claims

Mr. Padilla advises business owners, employees and investors on wage and hour law. Complex federal and Florida laws control minimum wages and other hourly worker pay matters.

The Fair Labor Standards Act

The Fair Labor Standards Act of 1938 (FLSA) provides that covered employers must pay at least minimum wage and overtime. The FLSA also imposes recordkeeping requirements and standards for employing people under age 16.

Minimum wage under the FLSA

Effective July 24, 2009, the federal minimum wage is $7.25 per hour. Florida's minimum wage is actually $8.46 per hour, effective on January 1, 2020, with a minimum wage of $5.44 per hour for tipped employees, plus tips. Where both state and federal minimum wage laws apply, the employer must pay the higher of the two.

Overtime hours

The FLSA states that nonexempt employees must receive overtime pay for all hours worked over 40 during a workweek at a rate of at least one and a half times the employee's regular rate. The FLSA defines "workweek" as any fixed period of 168 hours in seven consecutive 24-hour periods. The employee can be required to work any number of hours during the workweek, although there are limits for those under age 16. Holiday pay and other special pay, such as double or premium pay, for work performed on the weekends or other normal day off is not required, unless an employee works overtime on such days.

Tipped employees

Employers of workers who customarily and regularly receive more than $30 a month in tips may take into account such tips as part of wages, but must pay a direct wage of at least $5.44 per hour. Florida's minimum wage for tipped employees is $5.44 per hour, plus tips. An employer electing to use the "tip credit" provision must:

  • Inform tipped employees that it will be taking the tip credit allowance (including the amount to be credited) before the tip credit is applied;
  • Be able to show that each tipped employee receives at least the minimum wage when direct wages and the tip credit allowance are added together; and
  • Allow tipped employees to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent that any such employee participates in a valid tip-pooling arrangement 

What constitutes hours worked?

The entire time an employee is on the premises of the employer at the request or knowledge of the employer is considered work. This includes when the employee is on call or at a work site at the request of the employer.

Training time

The FLSA states that employees must be paid for time in training required by the employer. If the training is directly related to the employee's job, all training hours must be compensated at the federally mandated minimum wage.

Record-keeping requirements

The FLSA requires all employers to display an official poster in a conspicuous place outlining the FLSA's regulations. Employers are also required to maintain employee time and pay records for the time periods established by the regulations.

Employment of persons under age 20

The FLSA sets forth special provisions for employees under age 16 designed to protect minors and encourage education. The provisions prohibit employment of minors in jobs where the conditions are detrimental to their health. Under the youth employment provisions, an employer may pay a reduced minimum wage of not less than $4.25 per hour for employees under 20 years old during their first 90 days of employment. However, the FLSA prohibits an employer from hiring or taking any action to fire current employees to hire employees at the youth minimum wage.

Retaliation under the FLSA

The FLSA protects employees who make complaints about not receiving the benefits of the FLSA. It is illegal for an employer to terminate an employee for complaining about not being paid, not being paid the federal minimum wage or not being paid overtime. Mr. Padilla also represents employers and business owners in FLSA complaints.

Joint employers

Sometimes an employer will have an employee work at two different locations or for two different companies controlled by the same corporate group. In such cases, these employers may be deemed "joint employers." If the employee works more than 40 hours per week for the two companies, then the employer would need to pay overtime compensation, despite the fact that the employee worked less than 40 hours for each of the two companies.

Automobile dealers and the flag rate/flag hour system

Many automobile dealers pay shop and mechanic employees a "flag rate" based on predetermined "flag hours" for completion of certain tasks. Under this system, the resulting wage paid to employees must be at least one and a half times the federally mandated minimum wage for all hours worked. Also, the "flag hours" assigned to particular tasks must be predetermined and cannot be manipulated.

Discrimination and Other Claims

Employment Discrimination

Mr. Padilla represents employees and employers in employment discrimination disputes and other employment issues. With decades of experience practicing in Miami and South Florida, Mr. Padilla provides legal counseling and litigation in a wide range of employment matters.

What is employment discrimination?

Employment discrimination is illegal if it is based on an illegal factor. Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate because of sex, pregnancy, national origin, race or religion. Employers with 15 or more employees must comply with Title VII, including

employment agencies, labor unions, and state and local governments. Title VII applies to hiring, termination, promotion, compensation, training and any other decisions of employment.

Gender discrimination

Title VII protects individuals against discrimination by employers on the basis of gender. It is illegal for employers to discriminate against employees or applicants based on gender, stereotypes, or assumptions about job performance or abilities because of gender.

Pregnancy discrimination

The Pregnancy Discrimination Act amendment to Title VII states that employment decisions based on pregnancy constitute unlawful sex discrimination. It is also illegal to discriminate based on a pregnancy-related medical condition. Pregnant women and those with

pregnancy-related conditions must be treated the same as other employees or applicants.

National origin/nationality discrimination

Employees or applicants are entitled to the same opportunities as anyone else, regardless of ancestry. It is illegal to discriminate because of nationality, ancestry, ethnicity or accent. In addition, an employee married to or associated with someone of a particular nationality is also


Race/color discrimination

Title VII protects workers against discrimination because of race and/or color. A person cannot be treated differently and opportunities cannot be denied because of an actual or perceived

racial group. Persons who are married to or associated with someone of a particular race also cannot be treated differently, and employment decisions cannot be based on stereotypes and assumptions about abilities of a racial or ethnic group.

Religious discrimination

It is illegal to hire, fire and/or discriminate against a person because of religion. A person cannot be treated differently and employment opportunities cannot be denied because of religious beliefs, traditions, holidays or practices.

Age discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discriminate against any employee or applicant because the person is over age 40. All aspects of the employment relationship are implicated, including hiring, firing, promoting, layoffs, benefits, job

assignments, compensation and training.

The ADEA applies to all employers with at least 20 employees, including government agencies, employment agencies and labor unions. It is also illegal to retaliate against an employee for complaining about age discrimination.

Disability discrimination

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against workers with disabilities. Title I of the ADA states that it is illegal to treat a person with a disability differently with respect to hiring, firing, advancement, compensation, job training, and other terms and

conditions of employment. This applies to all employers with 15 or more employees.

An employer must make a "reasonable accommodation" to the known disability of an employee as long as it will not create an undue hardship on the business. An employer is not required to lower quality or production standards or to provide glasses, hearing aids or other personal-use


Sexual harassment

Sexual harassment is a type of discrimination based on sex. Title VII of the Civil Rights Act of 1964 (Title VII) makes sexual harassment illegal. All employers with 15 or more employees must comply with Title VII. This includes employment agencies, labor unions, and state and local

governments. Sexual harassment includes requests for sexual favors, unwelcome sexual advances, and other verbal comments or physical conduct of a sexual nature. However, to be actionable under Title VII, the harassment must be unwelcome and must unreasonably interfere with a person's work performance.

The victim of sexual harassment may be a man or a woman, and the victim does not need to be the opposite sex of the harasser. A victim can be any person affected by the offensive conduct, even someone who overhears it. The harassment does not have to be directed at a person to be actionable. There need not be economic injury (for example, monetary loss) to the person

harassed. Sexual harassment is actionable under the law even if the person harassed does not suffer any adverse employment action, such as getting fired or demoted. The law also provides protection from a sexually hostile work environment. This is not limited to an office environment, but can also be a factory floor, construction site, retail store or other business location.  When one or more employees makes a sexual remark or performs an action that

makes others uncomfortable, the workplace may be considered sexually hostile. Examples of remarks and actions are:

  • Sexually suggestive remarks about an employee's appearance or dress
  • Unwanted or inappropriate touching
  • Spreading rumors about an employee's personal life, sexual activities or sexuality
  • Openly displaying pornographic photos
  • Requesting sexual favors, either explicitly or by implication, in exchange for a raise, promotion or other business or career benefit is also a form of sexual harassment called quid pro quo sexual harassment. The request need not be made by a manager to be considered harassment. Such requests made by a co-worker or other employee fall into the same category. It creates a hostile workplace for the subject and can be cause for a legal action.

Sexual harassment can be subtle, and not all perceived harassment may meet the legal standards for an action. An employer may be held liable for conduct of a supervisor, co-worker or even a nonemployee if the employer knows of the offensive conduct and fails to take remedial action. However, the employee affected by sexual harassment must affirmatively take

advantage of the Equal Employment Opportunity procedures, if any, made available to the employee by the company. Otherwise, employers may defend themselves by claiming that they attempted to curb harassment through the implementation of appropriate procedures, but the employee failed to take advantage of those procedures.

Hostile work environment

Hostile work environment refers to harassment that becomes so severe and pervasive that it creates an environment in the workplace that is intimidating, hostile or abusive. A claim of a hostile work environment is a type of discrimination that is illegal under Title VII of the Civil

Rights Act of 1964. All employers with 15 or more employees must comply with Title VII. This includes employment agencies, labor unions, and state and local governments.

A hostile work environment is illegal only if the conduct is unwelcome and based on race, color, sex, religion, national origin, disability or age. Also, if enduring the offensive conduct is a condition of continued employment, then it is illegal. In addition, conduct is also actionable if the conduct is so severe or pervasive that the work environment becomes intimidating, hostile or abusive to a reasonable person. Conduct that may constitute harassment  and create a hostile work environment includes offensive jokes, insults, slurs, epithets, name-calling, physical assaults or threats. However, minor annoyances and petty slights do not constitute illegal

harassment unless they become frequent. Conduct and statements that are sexual in

nature are considered sexual harassment.

It is illegal for an employer to retaliate against an employee for complaining about a hostile work environment or filing a hostile workplace charge. Employees who give testimony are also protected. Retaliation means that an employer cannot fire, demote, harass or treat adversely any employee because of a complaint or charge.

An employer may be held liable for conduct of a supervisor, co-worker or even a nonemployee if the employer knows of the offensive conduct and fails to take remedial action. However, the employee affected by sexual harassment must affirmatively take advantage of the Equal Employment Opportunity procedures, if any, made available to the employee by the company.

Otherwise, employers may defend themselves by claiming that they attempted to curb harassment through the implementation of appropriate procedures, but the employee failed to take advantage of those procedures.

Retaliation in the workplace

It is illegal to retaliate against an employee for filing a discrimination or opposing discrimination charge. Employees who give testimony in an employment discrimination proceeding are also

protected. An employer cannot fire, demote, harass or treat adversely any employee engaged in this protected activity.  An example is if an employee complains about a hostile work environment and gets fired as a result.

To have a claim for retaliation, an employee must have been the subject of adverse employment action because of engagement in protected activity, such as filing a claim of discrimination, opposing illegal discrimination or testifying in an employment-discrimination proceeding.

Whistleblower claims

Florida's Whistleblower Act makes it illegal for an employer to fire, demote, harass or otherwise retaliate against an employee for objecting to or refusing to participate in any activity, policy or practice of the employer that is in violation of a law, rule or regulation.

The Florida Private Sector Whistleblower Act, Fla. Stat. §448.102 et seq. (FWA) provides protection to employees who have complained about an employer's illegal or wrongful conduct. However, it is not sufficient under the FWA for an employee to merely state that the employer is doing something illegal.

There are several strict requirements that employees must prove under the FWA. Specifically, an employee must not only complain about illegal conduct, he or she must also prove the following. First, the employee must prove that he or she disclosed or threatened to disclose to a

governmental agency, in writing and under oath, an activity, policy or practice of the employer that was in violation of a law, rule or regulation. This requires the employee to not only make or threaten to make a report in writing and under oath, but also requires the employee to prove

that the activity, policy or practice is, in fact, illegal under federal or local law. A mere belief that conduct is illegal is not sufficient. In addition, the disclosure must be to a governmental agency and must be in writing and under oath. Thus, a letter to a state health department may not be

sufficient if it is not made under oath.

Second, the employee must provide that the employer retaliated against the employee because of the protected activity, e.g., the disclosure. This means that the employer must have known or been informed of the disclosure. This requirement in itself will mean that only extremely recalcitrant employers will become subject to an FWA claim.

Third, the employee must prove that the employer not only knew of the disclosure, but that the employer was given written notice of the activity, policy or practice that was illegal, thereby giving the employer a reasonable opportunity to correct the activity, policy or practice. Such written notice must be specific and not just simply "rantings" about the circumstances at work.

This is to prevent mere employment disputes from reaching the level of an FWA claim.

Family and medical leave

The Family and Medical Leave Act of 1993 provides that qualified employees may take up to 12 weeks of unpaid, job-protected leave during any 12-month period for a serious health issue or for the birth and care of a newborn child or immediate family member with a serious medical


Employment and Separation Agreements

Employment Relationships Under Florida Law

Under Florida law, the employer-employee relationship is covered by the employment-at-will doctrine, which means that the relationship exists as long as it is the will of the parties. Under this doctrine, an employee may be terminated for any reason or no reason. The employer does not need to justify the reason and need not even articulate the reason. No written justification for the employment decision needs to be given to the employee.

Employment agreements

The employment-at-will doctrine can be voided for an employee and employer who enter into an agreement that provides for the nonapplication of the doctrine. Not all employment agreements eliminate the doctrine. The agreement must specifically state that the employment relationship is not at-will.

Employment agreements usually provide for specific terms and conditions of employment, such as:

  • Term or duration
  • Specific amount of pay 
  • Responsibilities and obligations of the employee
  • Causes for termination

With respect to termination, employment agreements generally provide that the employee can be terminated prior to the end of the term only for "good cause" or "just cause," both of which are usually defined in the agreement. Employment agreements also generally provide for a specific notice of termination (for example, 30 days) and a minimum severance pay for a termination prior to the expiration of the term.

Employment agreements may also provide for confidentiality and nondisclosure obligations, non-solicitation obligations and noncompete provisions:

  • Confidentiality and nondisclosure provisions -- These protect the business interests of the employer and generally provide that the employee may not use or disclose sensitive or confidential employer information, such as client contacts, intellectual property, and processes and methods.
  • Non-solicitation provisions -- These provisions generally provide that the employee may not contact clients or customers of the employer after termination of the employment relationship.
  • Noncompete provisions -- These generally provide that the employee may not compete with the employer after termination of the employment relationship. Under Florida law, noncompete agreements extending beyond more than two years are presumed unreasonable.

Employment agreements are usually used in tight labor markets where employers compete for talent and where the employee possesses a specific technical proficiency that is valuable to the employer. For example, top executives, stock brokers, physicians, marketing specialists and computer analysts often enter into employment agreements. However, any employee may enter into an employment agreement with an employer.

Employers or employees considering using an employment agreement should hire an experienced employment lawyer to draft or review the agreement to ensure that the agreement protects their interests.

Separation agreements

Separation or termination agreements usually provide for the payment of a severance amount, a release of liability with respect to actions of the employer, and confidentiality and nondisclosure obligations with which the employee must comply. These agreements may also provide for continued obligations on the part of the employer, such as the payment of health insurance for a certain period of time after termination.

It is good practice for both the employee and employer to sign a separation agreement when the employment relationship terminates. The employee receives a severance payment that enables the person to pay living expenses while attempting to find other employment. The employer receives assurance that there is no contingent liability with respect to the employment of the employee. In short, it provides a clear understanding of the position of both parties.

Noncompete Agreements (NCAs)

In many industries, employers require employees to sign NCAs limiting an employee's ability to work for a competitor and to solicit customers. The NCA is a separate document from the employment agreement. NCAs generally provide that an employee cannot compete with the employer (for example, sell the same or similar goods and services) and cannot solicit clients of the employer for a certain period of time after the termination of the employment relationship.
Generally, a company should use an NCA if:

  • It is in a highly competitive industry or market
  • Its products or services incorporate patents or other intellectual property unique to the company
  • The company's internal processes -- such as those the company uses for manufacturing, new product development or customer acquisition - - are proprietary

By limiting the ability of an employee to quit and immediately bring proprietary knowledge or customers, or both, to a competitor, a properly drafted NCA helps a company maintain its competitive edge.

Under Florida law, NCAs are fully enforceable provided that they meet certain requirements. To be enforceable, the employer must demonstrate that the need for the agreement is supported by legitimate business interests.

Protections provided by noncompete agreements (NCAs)

Noncompete agreements are meant to protect the confidential and proprietary business interests of the employer. If the employer cannot show a legitimate business interest that it seeks to protect, then courts may not enforce it. Legitimate business interests include trade secrets, confidential information, substantial relationships with customers and specialized training provided by the employer.

The restrictions contained in an NCA must also be reasonable to be enforceable, both with respect to the time period of the restriction and the geographical area of the restriction. Under Florida law, any noncompete provision extending beyond two years is presumed unreasonable. Also, if the employer does business only locally, a restriction prohibiting the employee from competing on an international level would be unreasonable.

If an ex-employee violates a signed NCA, the employer can bring a lawsuit against the ex-employee and possibly the person's new employer. The ex-employer may also be able to obtain a cease-and-desist order. Many NCAs contain a section documenting the sanctions or actions an employer can bring against a violator.

Independent Contractors

Mr. Padilla has extensive experience and knowledge regarding independent contractor issues. Whether a person is an independent contractor or an employee can have significant ramifications for a business.  For example, only employees are protected by the Fair Labor Standards Act (requiring the payment of minimum wage and overtime compensation) and employment discrimination laws. Also, employers must pay employment taxes for employees, but not for independent contractors.

Independent contractor or employee?

Determining whether an individual is an independent contractor or an employee requires a complex analysis and is not based on whether the individual signed an agreement or received a Form 1099-Misc. Under the law, the status of employee cannot be waived by signing a contract stating that the person is an independent contractor. Thus, the fact that a contract may state that a person is an independent contractor is not controlling under employment law. The courts have generally stated that the employer-employee relationship is tested by "economic reality" and not by applying technical concepts. There is no single test for determining whether an individual is an employee or an independent contractor. The facts and circumstances of each case must be carefully examined.

Independent contractor rights and obligations

An independent contractor does not have the same rights and duties as an employee. For example, an independent contractor often has the right to choose where and when to perform the work (unless the contractor has agreed to specific locations and times required by the business). An employee must be at work where and when the employer requires.  Of course, an independent contractor is obligated to perform the work to the standards and schedule set by the business. Independent contractors, unlike employees, must pay their own taxes.

Court rulings on relevant factors

The Supreme Court has explained that courts must determine whether, as a matter of economic reality, an individual is an employee or an independent contractor. For example, in the case of Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.C. 1473, 91 L.Ed. 1772 (1947), among the factors the courts considered significant are:  

  • The permanency of the relationship
  • The nature and degree of control exercised by the principal
  • Whether the services rendered are an important part of the principal's business
  • The amount of investment in equipment and facilities made by the alleged contractor
  • Whether the alleged contractor provides services to other principals
  • Whether the alleged contractor can dictate the manner and method of providing the services

No single factor is determinative, and courts must ultimately decide the degree of dependence of the alleged employees on the businesses with which they are connected. The determination of employee status is a question of law and fact.

Does it matter who pays the wages?

It is generally immaterial who pays the individual, such as in the case of an individual paid by a payroll company or a staffing company. Florida courts have reiterated time and again that what matters is the substance of the relationship, not the form of the relationship as may be indicated by documents signed by the parties (for example, independent contractor agreements).

Unemployment Compensation

Mr. Padilla provides representation for employees and employers in unemployment compensation cases. Unemployment payments are meant to help someone who has lost a job other than through misconduct to cover expenses while seeking a new job.

Eligibility for unemployment compensation

Any person who is unemployed or partially unemployed and was employed by an employer in Florida for the last 18 months prior to losing a job can file a claim for unemployment compensation. Generally, under Florida employment law all employees are entitled to unemployment compensation except if the individual voluntarily left without good cause or was discharged for misconduct connected with the work.

The law defines the type of misconduct that would disqualify an employee in these terms:

  • "Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer."
  • Poor judgment is not enough to constitute misconduct connected with the work 

Someone who is denied unemployment compensation but feels entitled to it can appeal the denial to the state unemployment commission. If the appeal is denied, the person can hire a lawyer to represent the claim in court. 

The definition of "misconduct" under Florida law

In July 2011, the Florida legislature amended the unemployment law to provide a new definition of what constitutes "misconduct":

  • Conduct demonstrating conscious disregard of an employer's interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of an employee
  • Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to an employer
  • Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence
  • A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state
  • A violation of an employer's rule, unless the claimant can demonstrate that: (a) the employer did not know, and could not reasonably know, of the rule's requirements, (b) the rule is not lawful or not reasonably related to the job environment and performance, and (c) the rule is not fairly or consistently enforced.

Under the new definition, the standard for qualifying for unemployment compensation appears to be stricter, and both employees and employer are well advised to carefully consider their actions and when and how to defend and/or apply for unemployment compensation benefits. 

Unemployment law cases successfully litigated by Mr. Padilla

Below are some of the unemployment cases that Mr. Padilla has litigated and won over the last several years:

  • Hernandez v. American General Finance, 39 So.3d 476 (3rd DCA, Fla. App., 2010) -- The issue before the Court was whether a single incident of wrongdoing by the claimant, which led the employer to terminate her job of 14 years, rises to the level of misconduct under the statute. The Court held that it was an isolated incident and a result of poor judgment and reversed the Unemployment Commission's decision to deny unemployment benefits.

  • Flint v. Carnival Cruise Lines, Inc., 79 So.3d 115 (3rd DCA, Fla. App., 2012) -- The Court held that although the claimant's action was in violation of a stated company policy and may have justified her discharge from employment, "such conduct does not necessarily preclude entitlement to unemployment benefits."

  • 940 Lincoln Rd. Enterprises v. Hernandez, 67 So.3d 1192 (3rd DCA, Fla. App., 2011) --The claimant quit her job because she was sexually harassed by employer's owner. She repeatedly asked the owner to stop this conduct, and complained to her immediate supervisor, all to no avail. The claimant remained on the job because she had a small child and needed the income. However, when the situation got worse, she could no longer tolerate the owner's conduct and she finally quit. On these facts, the Appeals Referee denied unemployment benefits stating that it was not reasonable for the claimant to have stayed on the job and not have called the police, but on appeal, the Florida Unemployment Commission and the District Court of Appeals both held that "[t]here is no evidence to support the referee's conclusion that victims of sexual harassment frequently go to the police to complain about a hostile work environment or seek psychological or medical treatment. Additionally, sexual harassment can continue for several years before the victim makes public her complaint... . Considering a job is usually a person's economic lifeline, the claimant's failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable."