When hiring a new employee, one of the first decisions every employer should make is whether to use a written employment contract in Florida to set forth the terms and conditions of employment.
Employment agreements are not necessary in every situation. But if you use them, it’s a good idea to consult an attorney to draft or at least review the contract.
An attorney can draft a Florida employment contract in a deliberate manner that protects the organization’s interests and does not lead to potential, and often unintended, liability.
When to Use an Employment Agreement in Florida
Generally, the employment relationship in Florida is considered at will. At will means that both the employer and the employee may end the employment at any time, with or without notice or cause.
Many Florida employers choose to maintain the at-will employment relationship to permit maximum flexibility in and control over their employment decisions.
The at-will employment relationship may be altered, however, if an employer makes oral or written promises that limit the circumstances, conditions, or process by which employees may be terminated.
Does that mean that an employer shouldn’t use a Florida employment agreement with an at-will employee? No! But employers must use caution to ensure that nothing in the employment agreement nullifies the at-will relationship.
In some circumstances, employers and employees may want a more defined relationship—perhaps to lock in an employee’s services for a specified period of time or to prohibit termination unless there is “cause.”
Employment agreements that provide these types of guarantees alter the at-will nature of the employment relationship and should be drafted carefully.
Florida employers may choose to use employment agreements with certain employees, such as executives or workers hired for a specific project, and not use them with the rest of their workforce.
However, an organization should be careful if it is not offering the same terms of employment to all similarly situated employees.
In that case, the employer should analyze whether the different treatment of employees could be seen as discriminatory, such as offering all male executives employment agreements with “for cause” termination provisions while female executives are treated as at-will employees subject to termination at any time.
Do’s and Don’ts for Drafting Employment Contracts in Florida
Employers who want an employment contract with their Florida employees should keep the following do’s and don’ts in mind.
Do include the following provisions:
- General job responsibilities, including “any other responsibilities as assigned by the employer”;
- Assignment of inventions and ownership of work product;
- Confidentiality and trade secret protection;
- Non-compete and non-solicitation (for appropriate positions), using reasonable geographic and time restrictions;
- Mandatory arbitration of employment disputes;
- Use and return of company property;
- Restrictions on moonlighting or other concurrent employment; and
- Choice of law and forum selection in Florida.
If you want the employee to be at will:
- Do define the at-will employment relationship;
- Don’t guarantee employment for any specific period of time or for an indefinite period if the employee performs satisfactorily;
- Don’t outline a progressive discipline process that the employer must follow prior to termination;
- Don’t require the employee to provide two weeks’ notice when resigning; and
- Don’t include language requiring “for cause” termination.
When drafting employment agreements for Florida employees who are not at-will, employers should spell out the employment relationship (e.g., whether it is for a specified term, what circumstances will justify termination of the employment relationship etc.).
If you agree that termination can be “for cause” only, the agreement should carefully define what constitutes “cause.”
Optional Provisions in a Florida Employment Agreement
Florida employers should be careful when addressing certain terms and conditions of employment in an agreement. Doing so may limit the company’s ability to change those terms without executing a new or amended employment agreement.
For example, an employment contract in Florida may address salary/wages, bonus eligibility, full-time or part-time status, exempt versus non-exempt status, benefits, severance pay upon separation of employment, and standards of conduct.
But because many of those provisions could change each time an employee gets a raise, promotion, demotion, change in status, change in benefits, etc., employers may want to leave those items out of the agreement.
Why Are Employment Agreements So Tricky?
A Florida employment agreement is a legally binding document. If either party disregards or violates one or more terms of the agreement, the other party may pursue legal action for breach of contract.
An unintended promise or misunderstood contractual provision could result in the employer being liable for money damages to an employee, or group of employees, upon failure to abide by the contract.
Therefore, employers should consult with an experienced employment attorney to review their workforce situation and draft enforceable employment contracts in Florida that protect the employer’s interests.
Contact Emmanuel Sheppard & Condon for Assistance with an Employment Contract in Florida
At Emmanuel Sheppard & Condon, our experienced Florida employment attorneys work with businesses to draft employment contracts in Florida that meet the needs of HR while protecting the business against costly and time-consuming employment disputes.
As a full-service law firm, we handle each contract with the care and dedication it deserves, consistent with each company’s business culture. Don’t take chances with online employment contract templates. Contact us today to get started on your employment agreement needs.