Employment at Will Doctrine

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 that it continues. Under the “employment-at-will” doctrine, an employee may be terminated from his or her employment 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 made inapplicable as between an employee and employer if they enter into an Employment Agreement that provides for the non-application of the “employment-at-will” doctrine as between them. Not all Employment Agreement eliminate the “employment-at-will” 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 the term or duration, a specific amount of pay to the employee, and the responsibilities and obligations of the employee. 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 will usually be defined in the agreement. Employment Agreements will also generally provide for a specific notice of termination (e.g., 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 non-disclosure obligations, non-solicitation obligations, and non-compete provisions. Confidentiality and non-disclosure provisions are meant to protect the business interests of the employer and generally provide that the employee may not use or disclose sensitive and/or confidential information of the employer, such as client contacts, intellectual property, and processes and methods of the employer’s operations. Non-solicitation provisions generally provide that employee may not contact clients or customers of the employer after termination of the employment relationship. Non-compete provisions, which are enforceable in Florida, generally provide that the employee may not compete against the employer after termination of the employment relationship. This means that the employee may not go to work for a competing employer. Non-compete provisions, however, must be geographically limited (e.g., 50-100 miles from place of employment) and must also be temporally limited (e.g., a set period of time). Under Florida law, any non-compete provision that extends for more than 2 years is presumed unreasonable.

Given the nature of the “employee-at-will” doctrine, Employment Agreements are usually used in tight labor markets where employers are competing for talent, and where the employee possesses a certain technical expertise 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 his or her employer.

Separation Agreements

Separation or Termination Agreements provide for specific agreements between the employer and employee regarding the termination of the employment relationship. Separation Agreements will usually provide for the payment of a severance amount, a release of liability with respect to actions of the employer, and confidentiality and non-disclosure obligations that the employee must comply with. These agreements may also provide for continued obligations on the part of the employer, such as regarding the payment of health insurance for a certain period of time after termination of the employment.

It is a good practice for both the employee and employer to sign a Separation Agreement when the employment relationship terminates. The employee will receive a severance payment that will allow him or her to pay the cost of living while attempting to find other employment and the employer will receive 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.