Florida Senate - 2016                                     SB 294
       
       
        
       By Senator Thompson
       
       
       
       
       
       12-00215-16                                            2016294__
    1                        A bill to be entitled                      
    2         An act relating to labor regulations; creating s.
    3         448.111, F.S.; providing powers and duties of the
    4         executive director of the Department of Economic
    5         Opportunity; defining terms; providing applicability;
    6         requiring certain employers to provide employees with
    7         paid or unpaid earned sick and safe leave under
    8         certain conditions; providing employer and employee
    9         requirements; authorizing an employee to file a civil
   10         action under certain conditions; providing penalties;
   11         providing an effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Section 448.111, Florida Statutes, is created to
   16  read:
   17         448.111 Healthy Working Families Act.—
   18         (1)(a) Upon the receipt of a written complaint by an
   19  employee, the executive director may conduct an investigation to
   20  determine whether a violation of this section has occurred.
   21         (b) To the extent practicable, the executive director shall
   22  keep confidential the identity of an employee who has filed a
   23  written complaint alleging a violation of this section unless
   24  the employee waives confidentiality.
   25         (2) As used in this section, the term:
   26         (a) “Abuse” means:
   27         1. An act that causes serious bodily harm.
   28         2. An act that places a person in fear of imminent serious
   29  bodily harm.
   30         3. Assault.
   31         4. Domestic violence.
   32         5. False imprisonment.
   33         6. Stalking.
   34         (b) “Department” means the Department of Economic
   35  Opportunity.
   36         (c) “Domestic violence” has the same meaning as described
   37  in s. 741.28.
   38         (d) “Earned sick and safe leave” means paid or unpaid leave
   39  away from work which is provided by an employer under this
   40  section.
   41         (e) “Employee” does not include a person who meets all of
   42  the following criteria:
   43         1. Has an irregular work schedule with the employer.
   44         2. Contacts the employer for work assignments and is
   45  scheduled to work the assignments within 4 hours after
   46  contacting the employer.
   47         3. Has no obligation to work for the employer if the
   48  individual does not contact the employer for work assignments.
   49         4. Is not employed by a temporary placement agency.
   50         (f) “Employer” means a state or local government agency and
   51  a person who acts directly or indirectly in the interest of
   52  another employer with an employee.
   53         (g) “Executive director” means the executive director of
   54  the Department of Economic Opportunity.
   55         (h) “Family member” means:
   56         1. A biological child, an adopted child, a foster child, or
   57  a stepchild of the employee.
   58         2. A minor for whom the employee has legal or physical
   59  custody or guardianship.
   60         3. A minor for whom the employee is the primary caregiver.
   61         4. A biological parent, an adoptive parent, a foster
   62  parent, or a stepparent of the employee or of the employee’s
   63  spouse.
   64         5. The legal guardian of the employee.
   65         6. A person who served as the primary caregiver of the
   66  employee when the employee was a minor.
   67         7. The spouse of the employee.
   68         8. A grandparent of the employee.
   69         9. The spouse of a grandparent of the employee.
   70         10. A grandchild of the employee.
   71         11. A biological sibling, an adopted sibling, or a foster
   72  sibling of the employee.
   73         12. The spouse of a biological sibling, a foster sibling,
   74  or an adopted sibling of the employee.
   75         (i) “Health care provider” means a physician licensed under
   76  chapter 458 or chapter 459.
   77         (j) “Sexual assault” means:
   78         1. Rape or a sexual offense.
   79         2. Sexual abuse of a minor.
   80         3. Sexual abuse of a vulnerable adult.
   81         (k) “Stalking” has the same meaning as described in s.
   82  784.048.
   83         (l) “Year,” unless the context requires otherwise, means:
   84         1. If the employer uses a calendar year for his or her
   85  regular business, a calendar year.
   86         2. If the employer uses a fiscal year for his or her
   87  regular business, a fiscal year.
   88         (3) This section does not:
   89         (a) Require an employer to compensate an employee for
   90  unused earned sick and safe leave when the employee leaves the
   91  employer’s employment.
   92         (b) Prohibit an employer from establishing a policy under
   93  which employees may voluntarily exchange assigned work hours.
   94         (c) Prohibit an employer from adopting or retaining a
   95  general paid leave policy that meets the minimum requirements of
   96  this section.
   97         (d) Affect a provision of a contract, a collective
   98  bargaining agreement, an employee benefit plan, or any other
   99  agreement that requires the employer to provide general paid
  100  leave benefits that meet the minimum requirements of this
  101  section.
  102         (e) Preempt, limit, or otherwise affect any other law that
  103  provides for earned sick and safe leave benefits that exceed
  104  those required under this section.
  105         (f) Preempt, limit, or otherwise affect any workers’
  106  compensation benefits.
  107         (4) This section does not apply to an employee who
  108  regularly works less than 8 hours a week for an employer.
  109         (5)(a) The executive director shall develop and implement a
  110  multilingual outreach program to inform employees and other
  111  affected persons about the availability of earned sick and safe
  112  leave under this section.
  113         (b) The program established under paragraph (a) must
  114  include the distribution of notices and other written material
  115  in at least English and Spanish to child care and elder care
  116  providers, community health centers, domestic violence shelters,
  117  health care providers, hospitals, and schools.
  118         (6)(a)Effective October 1, 2016, an employer who employs
  119  more than 9 employees shall provide each employee with paid
  120  earned sick and safe leave, and an employer who employs fewer
  121  than 10 employees shall provide each employee with unpaid earned
  122  sick and safe leave, accrued at a rate of at least 1 hour for
  123  every 30 hours that the employee works on or after that date.
  124         (b) For the purpose of determining whether an employer is
  125  required to provide paid or unpaid earned sick and safe leave
  126  under this subsection, the number of employees is determined by
  127  calculating the average number of all employees employed by the
  128  employer each month during the preceding year.
  129         (c) An employer is not required to allow an employee to use
  130  earned sick and safe leave during the first 3 months of
  131  employment; to earn in a year, or to carry forward from one year
  132  to the next, more than 56 hours of earned sick and safe leave;
  133  or to use more than 80 hours of earned sick and safe leave in
  134  the course of a year.
  135         (d) An employer may award to an employee at the beginning
  136  of a year the full amount of earned sick and safe leave that an
  137  employee would earn over the course of the year rather than
  138  awarding the leave as it accrues.
  139         (e)1. Except as provided in subparagraph 2., for the
  140  purpose of calculating the accrual of earned sick and safe
  141  leave, an employee who is exempt from overtime wage requirements
  142  under the federal Fair Labor Standards Act is assumed to work 40
  143  hours each workweek.
  144         2. If the employee’s normal workweek is less than 40 hours,
  145  the actual number of hours worked is used.
  146         (f)An employee may carry forward the unused balance of
  147  earned sick and safe leave at the end of a year up to the limit
  148  specified in paragraph (c).
  149         (g) If an employee begins working in a separate division or
  150  location but remains employed by the employer, the employee is
  151  entitled to the earned sick and safe leave that accrued before
  152  the employee moved to the separate division or location up to
  153  the maximum allowed under this subsection.
  154         (h) If an employee is rehired by an employer within 12
  155  months after leaving the employment of the employer, the
  156  employer shall reinstate any unused earned sick and safe leave
  157  that the employee had when the employee left the employment of
  158  the employer. This requirement does not apply when an employee
  159  is rehired by an employer more than 12 months after leaving the
  160  employment of the employer.
  161         (i)1. An employer may allow an employee to use earned sick
  162  and safe leave before the employee accrues the amount he or she
  163  wishes to use. Any such use shall be documented by the employer
  164  and signed by the employee.
  165         2. If an employee is allowed to use earned sick and safe
  166  leave before it has accrued and subsequently leaves employment
  167  before accruing the number of hours used, the employer may
  168  deduct the amount he or she paid to the employee for any
  169  unaccrued hours from the wages it pays to the employee at the
  170  time of his or her termination of employment. This subparagraph
  171  does not apply if the employer does not obtain the signed
  172  documentation required under subparagraph 1.
  173         (7)(a) An employer shall allow an employee to use earned
  174  sick and safe leave:
  175         1. To obtain care or treatment for the employee or a family
  176  member of the employee for any mental or physical illness,
  177  condition, or injury.
  178         2. To obtain preventive medical care for the employee or a
  179  family member of the employee.
  180         3. If the employer’s place of business has closed by order
  181  of a public official due to a public health emergency.
  182         4. If the school of, or child care provider for, the
  183  employee’s family member has closed by order of a public
  184  official due to a public health emergency.
  185         5. To care for a family member if a public official or
  186  health care provider has determined that the family member’s
  187  presence in the community would jeopardize the health of others
  188  because of the family member’s exposure to a communicable
  189  disease.
  190         6. If an absence from work is necessary due to domestic
  191  violence, sexual assault, or stalking committed against the
  192  employee or a family member of the employee and the leave is
  193  being used:
  194         a. By the employee, on behalf of the employee or the
  195  employee’s family member, to obtain:
  196         (I) Medical attention that is needed to recover from a
  197  related physical or psychological injury or disability;
  198         (II) Related services from a victim services organization;
  199         (III) Related psychological or other counseling; or
  200         (IV) Legal services, including preparing for or
  201  participating in a civil or criminal proceeding related to or
  202  resulting from the domestic violence, sexual assault, or
  203  stalking; or
  204         b.While the employee has temporarily relocated due to the
  205  domestic violence, sexual assault, or stalking.
  206         (b) In order to use earned sick and safe leave, an employee
  207  must:
  208         1. Request the leave from the employer as soon as
  209  practicable after the employee determines that he or she needs
  210  to use the leave;
  211         2. Notify the employer of the anticipated duration of the
  212  leave; and
  213         3. Comply with any reasonable procedures established by the
  214  employer under paragraph (c).
  215         (c)An employer may establish reasonable procedures to be
  216  used by an employee in requesting and using earned sick and safe
  217  leave. However, an employer may not:
  218         1. Require an employee who is requesting earned sick and
  219  safe leave to search for or find a person to work in the
  220  employee’s stead during the time the employee is absent.
  221         2. Disclose details of:
  222         a.Any domestic violence, sexual assault, or stalking
  223  committed against the employee or a family member of the
  224  employee.
  225         b.Any mental or physical illness, condition, or injury of
  226  the employee or a family member of the employee.
  227         3. Provide as certification any information that would
  228  violate the federal Social Security Act or the federal Health
  229  Insurance Portability and Accountability Act.
  230         (d)Upon the mutual consent of the employer and employee,
  231  an employee may work additional hours or trade shifts with
  232  another employee to make up work hours that the employee took
  233  off which otherwise would have required the employee to use
  234  earned sick and safe leave. However, an employee may not be
  235  required to offer or to accept an offer of additional work hours
  236  or a trade in shifts.
  237         (e) An employee may use earned sick and safe leave in the
  238  smallest increment that the employer’s payroll system uses to
  239  account for absences or use of the employee’s work time. An
  240  employer may not require an employee to use earned sick and safe
  241  leave in increments of more than 1 hour.
  242         (f) When wages are paid to an employee, the employer shall
  243  provide a written statement regarding the amount of earned sick
  244  and safe leave that is available for use by the employee.
  245         (g)1. An employer may require an employee who uses earned
  246  sick and safe leave for more than two consecutive scheduled
  247  shifts to provide reasonable documentation to verify that the
  248  leave was used as provided under paragraph (a).
  249         2. For purposes of this paragraph, reasonable documentation
  250  includes:
  251         a. For leave used under subparagraph (a)1. or subparagraph
  252  (a)5., documentation from a health care provider or public
  253  health official that the use of earned sick and safe leave is
  254  necessary.
  255         b. For leave used under subparagraph (a)3., a copy of the
  256  notice received by the employee of the closure order.
  257         c. For leave used under subparagraph (a)6.:
  258         (I) A report by a law enforcement officer indicating that
  259  the employee or a family member of the employee was the victim
  260  of domestic violence, sexual assault, or stalking;
  261         (II) Documentation of an indictment for domestic violence,
  262  sexual assault, or stalking committed against the employee or a
  263  family member of the employee;
  264         (III) Certification by a state attorney’s office, child
  265  protective services, a law enforcement agency, the victim’s
  266  attorney, or the victim’s advocate that the employee or a family
  267  member of the employee is a party to or witness in a legal
  268  action related to the domestic violence, sexual assault, or
  269  stalking committed against the employee or a family member of
  270  the employee;
  271         (IV) A court order protecting the employee or a family
  272  member of the employee from the perpetrator of the domestic
  273  violence, sexual assault, or stalking committed against the
  274  employee or a family member of the employee; or
  275         (V) A notice from a court, the victim’s attorney, or the
  276  state attorney’s office that the employee or a family member of
  277  the employee appeared or is scheduled to appear in court in
  278  connection with the domestic violence, sexual assault, or
  279  stalking committed against the employee or a family member of
  280  the employee.
  281         3. An employer may not require that documentation verifying
  282  the use of the earned sick and safe leave under subparagraph
  283  (a)1. or subparagraph (a)5. explain the nature of the mental or
  284  physical illness, injury, or condition or that documentation
  285  verifying the use of the earned sick and safe leave under
  286  subparagraph (a)6. include details regarding the domestic
  287  violence, sexual assault, or stalking.
  288         4.Any documentation required under subparagraph 1. which
  289  relates to the mental or physical health of, or to domestic
  290  violence, sexual assault, or stalking committed against an
  291  employee or a family member must be maintained by the employer
  292  in a confidential file that is separate from the employee’s
  293  personnel file. An employer may not disclose such documentation
  294  without first receiving permission from the employee to do so.
  295         (8)(a) An employer shall notify his or her employees that
  296  they are entitled to earned sick and safe leave under this
  297  section. Such notice shall include:
  298         1. A statement of how earned sick and safe leave is accrued
  299  under subsection (6);
  300         2. The purposes for which the employer is required to allow
  301  an employee to use earned sick and safe leave under subsection
  302  (7);
  303         3. A statement regarding the prohibition in subsection (11)
  304  of the employer’s taking adverse action against an employee who
  305  exercises a right under this section; and
  306         4. Information regarding the right of an employee to report
  307  an alleged violation of this section by the employer to the
  308  executive director or to bring a civil action under paragraph
  309  (10)(b).
  310         (b) The department shall create and make available a poster
  311  and a model notice that may be used by an employer in complying
  312  with paragraph (a). The model notice must be printed in at least
  313  English and Spanish, and in any other language that the
  314  executive director determines is necessary to notify employees
  315  of their rights under this section.
  316         (c) An employer may comply with paragraph (a) by:
  317         1. Displaying the poster in a conspicuous and accessible
  318  area at the location at which the employees work; or
  319         2. Including the model notice, or a notice that contains
  320  the same information that is included in the model notice, in an
  321  employee handbook or other electronic or printed employee
  322  publication relating to employee benefits or leave or providing
  323  such notice to each employee upon hiring.
  324         (d) An employer who violates this subsection is subject to
  325  a civil penalty of not more than $125 for the first violation
  326  and not more than $250 for each subsequent violation.
  327         (9)(a) An employer shall keep for at least 3 years a record
  328  of earned sick and safe leave accrued and used by each employee.
  329  The employer may keep the record in the same manner that the
  330  employer keeps other records required to be kept under this
  331  section.
  332         (b) After giving the employer notice and determining a
  333  mutually agreeable time for the inspection, the executive
  334  director may inspect a record kept under paragraph (a) for the
  335  purpose of determining whether the employer is complying with
  336  this section.
  337         (c) There is a rebuttable presumption that an employer has
  338  violated this section, which may be overcome only by clear and
  339  convincing evidence, if it is alleged that the employer has
  340  failed to provide the amount of earned sick and safe leave
  341  available to an employee, and the employer fails to:
  342         1. Keep a record as required under paragraph (a); or
  343         2. Allow the executive director to inspect a record kept
  344  under paragraph (a).
  345         (10)(a) When the executive director determines that a
  346  violation of this section has occurred, the executive director
  347  may:
  348         1. Attempt to resolve informally, by mediation, any issue
  349  involved in the violation;
  350         2. With the written consent of the employee, request that
  351  the Attorney General bring an action in accordance with this
  352  section on behalf of the employee; and
  353         3. Bring an action on behalf of an employee in the county
  354  in which the violation allegedly occurred.
  355         (b) An employee may bring a civil action against the
  356  employer for a violation of this section regardless of whether
  357  the employee first filed a complaint with the executive
  358  director.
  359         (c) An action brought under paragraph (a) or paragraph (b)
  360  must be filed within 3 years after the occurrence of the act on
  361  which the action is based.
  362         (d)1. In an action under paragraph (a) or paragraph (b), if
  363  a court finds that an employer violated this section, the court
  364  may award the employee:
  365         a. The full monetary value of any unpaid earned sick and
  366  safe leave;
  367         b. Actual economic damages suffered by the employee as a
  368  result of the employer’s violation of this section;
  369         c. An additional amount not exceeding three times the
  370  damages awarded under sub-subparagraph b.;
  371         d. Reasonable attorney fees and other costs; and
  372         e. Any other relief that the court deems appropriate,
  373  including reinstatement of employment, back pay, and injunctive
  374  relief.
  375         2. If benefits are recovered under this subsection, they
  376  shall be paid to the employee without cost to the employee.
  377         3. If the action was brought by the Attorney General under
  378  subparagraph (a)2., the court may order the employer to pay the
  379  state $1,000 per violation.
  380         (11)(a) As used in this subsection, the term “adverse
  381  action” includes discharge or demotion, or a threat of such
  382  action, or any other retaliatory action that results in a change
  383  to the terms or conditions of employment which would dissuade a
  384  reasonable employee from exercising a right under this section.
  385         (b) A person may not interfere with the exercise of, or the
  386  attempt to exercise, any right given under this section.
  387         (c)1. An employer may not:
  388         a. Take adverse action or discriminate against an employee
  389  because the employee in good faith exercises the rights
  390  protected under this section; or
  391         b. Count earned sick and safe leave that an employee used
  392  in accordance with this section as an absence that may lead to
  393  or result in any adverse action being taken against the
  394  employee.
  395         2. There is a rebuttable presumption that an employer has
  396  violated this subsection if the employer takes adverse action
  397  against an employee within 90 days after the employee:
  398         a. Files a complaint with the executive director alleging a
  399  violation of this section or brings a civil action under
  400  paragraph (10)(b);
  401         b. Informs a person about an alleged violation of this
  402  subsection by his or her employer;
  403         c. Cooperates with the executive director or another person
  404  in the investigation or prosecution of an alleged violation of
  405  this subsection by his or her employer; or
  406         d. Opposes a policy or practice of his or her employer or
  407  an act committed by the employer which is unlawful under this
  408  subsection.
  409         (d) The protections afforded under this subsection apply to
  410  an employee who mistakenly, but in good faith, alleges a
  411  violation of this subsection.
  412         (12)(a) An employee may not in bad faith:
  413         1. File a complaint with the executive director alleging a
  414  violation of this section;
  415         2. Bring an action under paragraph (10)(b); or
  416         3. Testify in an action under paragraph (10)(b).
  417         (b) An employee who violates this subsection commits a
  418  misdemeanor of the first degree, punishable as provided in s.
  419  775.082 or s. 775.083.
  420         Section 2. This act shall take effect July 1, 2016.