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Why Size Matters In Employment Law

Fri September 1, 2017 Publications

Most employment laws apply only to employers with at least a minimum number of employees. For instance, the Family and Medical Leave Act (FMLA) applies to employers with at least 50 employees. The Age Discrimination in Employment Act (ADEA) applies to employers with at least 20 employees. The Americans with Disabilities Act, Title VII of the Civil Rights Act or 1964, and the Florida Civil Rights Act of 1992 all apply to employers with at least 15 employees. Locally, we have city and county anti-discrimination ordinances which apply to employers with 5 or more employees.

In many instances, local ordinances subject employers of between 5 and 19 employees to the same standards as the larger employers who qualify under the federal and state laws. But, that is not true in all cases.

Some aspects of the federal laws are not captured in our local ordinances. For instance, the city ordinance does not prohibit an employer’s retaliation against a person for opposing a discriminatory practice. That is a big deal given the frequency with which retaliation claims are filed under federal and state law.

Another example is the ADEA’s requirement that employers comply with cumbersome provisions when using a separation agreement to waive the right to sue for age discrimination. Such agreement must provide the employee 21 days to consider the release and 7 days to revoke the release, among other things. While local employers with 5 or more employees cannot discriminate based on age, those employers with less than 20 employees are not covered by the ADEA and are not required to include these provisions in their separation agreements.

It is not just the size of the local employer that matters. The size of the employer’s local office matters, too. For instance, the FMLA generally applies to employers with 50 or more employees. However, there is second often forgotten component that requires the employee requesting leave to be located in an office that has at least 50 employees within a 75 mile radius. If not, the FMLA does not apply, and leave under the FMLA is not required.

Thus, employers need to look at all size-related requirements to determine whether they are covered by these employment laws and how.