10/01/2024
As an employment law attorney, I have lost count of the number of times someone has said to me:
“Florida is a right to work state, therefore [insert wrong conclusion here].”
“Right to work state” probably does not mean what you think it means. Here are some misconceptions, followed by the right answer.
Myth: Florida is a right to work state, therefore, I do not need a reason to fire someone.
This myth stems from confusion between the terms “at-will employment” and “right to work.” In Florida, most employees are “at-will” employees. If an employee is “at will”, you do not (technically) need a reason to fire them, but:
- It’s still a good idea to have a good reason, whether you need it or not; and
- This has nothing to do with the fact that we are in a right to work state.
Note that you can (technically) fire an at-will employee for no reason, but you cannot fire someone for any reason. There are many unlawful reasons for which someone cannot be fired. For example, you cannot fire something because of their race, or because they made a claim for worker’s comp benefits. It is always a good idea to have and document the existence a good reason for a termination. If you are accused of having an illegal reason, you can then prove what the real reason was.
This concept does not apply to all employees, only to at-will employees. Which employees are at will? If you have an employee who is not at-will, or if you are an employee who is not at-will, you probably know it already. Non-at-will employees are employees with contracts guaranteeing them a certain length of employment, or limiting the reasons for which they can be fired. This is not super common.
But some employers, sadly, think that because we are a “right to work state,” they can be reckless in making termination decisions. This is simply not true.
Myth: Florida is a right to work state, therefore non-compete agreements are illegal.
This conclusion is understandable. When you read the words “right to work,” you might think they literally mean that people have a “right” to “work.” They do not.
In Florida, non-compete agreements remain legal and enforceable. A recent federal regulation seeks to change that, but a Court has stopped it from taking effect. That pause remains in effect as of the date of this post.
Myth: Florida is a right to work state, therefore we don’t have private sector unions.
Closer, but wrong. Unions definitely exist in Florida, more than some people realize. Public safety employees (police, firefighters) are often unionized. Teachers and college professors are often unionized. It’s not just the public sector. Some nurses are unionized, and your next flight out of Orlando will probably be worked by union pilots and crew. Actors at Disney World are unionized, as are some of the linemen that get your power back on after a hurricane.
Florida’s status as a right to work state does make it harder for workers to unionize here, though.
Fact: Florida is a right to work state, therefore an employee cannot be forced to pay dues to a union.
In Florida, it is unlawful for a union to insist that non-union members pay dues. Non-union members have a “right to work” union jobs. That is all it means.
If an employee accepts a union job, such as a teacher in a unionized school district, that individual teacher can elect whether to join the union and pay union dues or not. If they elect not to, they have the right to enjoy the benefits of the union-negotiated collective bargaining agreement even though they do not pay dues to the union. They may not be entitled to certain benefits offered by the union, itself, but they have the right to receive union wages and benefits just like all other teachers covered by the collective bargaining agreement.
The only difference between a right to work state and a non-right to work state is that a union can collect union dues from a worker covered by the collective bargaining agreement even if that worker does not join the union.
That’s all “right to work” means. As an employer, if you think that being in a “right to work” state gives you the right or ability to do so something that seems risky, you are probably wrong! It might be time to call your lawyer.
J. KEMP BRINSON | ATTORNEY