Florida Senate - 2015                                    SB 1490
       
       
        
       By Senator Thompson
       
       
       
       
       
       12-00952-15                                           20151490__
    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; providing definitions; providing
    6         applicability; requiring certain employers to provide
    7         employees with 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) The executive director of the Department of Economic
   19  Opportunity may conduct an investigation to determine whether
   20  this section has been violated upon the receipt of a written
   21  complaint by an employee.
   22         (b) To the extent practicable, the executive director of
   23  the department shall keep confidential the identity of an
   24  employee who has filed a written complaint alleging a violation
   25  of this section unless the employee waives confidentiality.
   26         (2) As used in this section, the term:
   27         (a) “Abuse” means:
   28         1. An act that causes serious bodily harm;
   29         2. An act that places a person in fear of imminent serious
   30  bodily harm;
   31         3. Assault;
   32         4. Domestic violence;
   33         5. False imprisonment; or
   34         6. Stalking.
   35         (b) “Department” means the Department of Economic
   36  Opportunity.
   37         (c) “Domestic violence” has the same meaning as in s.
   38  741.28.
   39         (d) “Earned sick and safe leave” means paid leave away from
   40  work that is provided by an employer under this section.
   41         (e) “Employee” does not include a person who:
   42         1. Does not have a regular work schedule with the employer;
   43         2. Contacts the employer for work assignments and is
   44  scheduled to work the assignments within 4 hours after
   45  contacting the employer;
   46         3. Has no obligation to work for the employer if the
   47  individual does not contact the employer for work assignments;
   48  and
   49         4. Is not employed by a temporary placement agency.
   50         (f) “Employer” means:
   51         1. A state or local government agency; and
   52         2. A person who acts directly or indirectly in the interest
   53  of another employer with an employee.
   54         (g) “Executive director” means the executive director of
   55  the Department of Economic Opportunity.
   56         (h) “Family member” means:
   57         1. A biological child, an adopted child, a foster child, or
   58  a stepchild of the employee;
   59         2. A child for whom the employee has legal or physical
   60  custody or guardianship;
   61         3. A child for whom the employee is the primary caregiver;
   62         4. A biological parent, an adoptive parent, a foster
   63  parent, or a stepparent of the employee or of the employee’s
   64  spouse;
   65         5. The legal guardian of the employee;
   66         6. A person who served as the primary caregiver of the
   67  employee when the employee was a minor;
   68         7. The spouse of the employee;
   69         8. A grandparent of the employee;
   70         9. The spouse of a grandparent of the employee;
   71         10. A grandchild of the employee;
   72         11. A biological sibling, an adopted sibling, or a foster
   73  sibling of the employee; or
   74         12. The spouse of a biological sibling, a foster sibling,
   75  or an adopted sibling of the employee.
   76         (i) “Health care provider” means a physician licensed under
   77  chapter 458.
   78         (j) “Sexual assault” means:
   79         1. Rape or a sexual offense;
   80         2. Sexual abuse of a minor; or
   81         3. Sexual abuse of a vulnerable adult.
   82         (k) “Stalking” has the same meaning as described in s.
   83  784.048.
   84         (l) “Year,” unless the context requires otherwise, means:
   85         1. If the employer uses a calendar year for his or her
   86  regular business, a calendar year; or
   87         2. If the employer uses a fiscal year for his or her
   88  regular business, a fiscal year.
   89         (3) This section does not:
   90         (a) Require an employer to compensate an employee for
   91  unused earned sick and safe leave when the employee leaves the
   92  employer’s employment;
   93         (b) Prohibit an employer from establishing a policy under
   94  which employees may voluntarily exchange assigned work hours;
   95         (c) Prohibit an employer from adopting or retaining a
   96  general paid leave policy that meets the minimum requirements of
   97  this section;
   98         (d) Affect a provision of a contract, a collective
   99  bargaining agreement, an employee benefit plan, or any other
  100  agreement that requires the employer to provide general paid
  101  leave benefits that meet the minimum requirements of this
  102  section;
  103         (e) Preempt, limit, or otherwise affect any other law that
  104  provides for sick and safe leave benefits that exceed those
  105  required under this section; or
  106         (f) Preempt, limit, or otherwise affect any workers’
  107  compensation benefits.
  108         (4) This section does not apply to an employee who
  109  regularly works less than 8 hours a week for an employer.
  110         (5)(a) The executive director shall develop and implement a
  111  multilingual outreach program to inform employees and other
  112  affected persons about the availability of earned sick and safe
  113  leave under this section.
  114         (b) The program established under paragraph (a) includes
  115  the distribution of notices and other written material in
  116  English, Spanish, and other languages to:
  117         1. Child and elder care providers.
  118         2. Domestic violence shelters.
  119         3. Schools.
  120         4. Hospitals.
  121         5. Community health centers.
  122         6. Health care providers.
  123         (6)(a)1. An employer who employs more than nine employees
  124  shall provide an employee with earned sick and safe leave that
  125  is paid at the same rate and with the same benefits as the
  126  employee normally earns.
  127         2. An employer who employs nine employees or fewer shall
  128  provide an employee with unpaid earned sick and safe leave.
  129         3.a. For the purpose of determining whether an employer is
  130  required to provide paid or unpaid earned sick and safe leave
  131  under this subsection, the number of employees of an employer
  132  shall be determined by calculating the average number of
  133  employees employed by the employer per month during the
  134  preceding year.
  135         b. Each employee shall be included in the calculation made
  136  under sub-subparagraph a. without regard to whether the employee
  137  would be eligible for earned sick and safe leave under this
  138  subsection.
  139         (b) The earned sick and safe leave provided under paragraph
  140  (a) shall accrue at a rate of at least 1 hour for every 30 hours
  141  an employee works.
  142         (c) An employer is not required to allow an employee to:
  143         1. Earn more than 56 hours of earned sick and safe leave in
  144  a year;
  145         2. Use more than 80 hours of earned sick and safe leave in
  146  a year; or
  147         3. Use earned sick and safe leave during the first 3 months
  148  the employee is employed.
  149         (d) At the beginning of a year, an employer may award to an
  150  employee the full amount of earned sick and safe leave that an
  151  employee would earn over the course of the year rather than
  152  awarding the leave as the leave accrues during the year.
  153         (e)1. Except as provided in subparagraph 2., for the
  154  purpose of calculating the accrual of earned sick and safe
  155  leave, an employee who is exempt from overtime wage requirements
  156  under the federal Fair Labor Standards Act is assumed to work 40
  157  hours each workweek.
  158         2. If the employee’s normal workweek is less than 40 hours,
  159  the number of hours in the normal workweek shall be used.
  160         (f)1. Earned sick and safe leave shall begin to accrue:
  161         a. October 1, 2015; or
  162         b. If the employee is hired after October 1, 2015, the date
  163  on which the employee begins employment with the employer.
  164         2. An employee may not accrue earned sick and safe leave
  165  based on hours worked before October 1, 2015.
  166         (g)1. Subject to subparagraph 2., if an employee has unused
  167  earned sick and safe leave at the end of a year, the employee
  168  may carry the balance of the earned sick and safe leave over to
  169  the following year.
  170         2. An employer may not be required to allow an employee to
  171  carry over more than 56 hours of earned sick and safe leave
  172  under subparagraph 1.
  173         (h) If an employee begins working in a separate division or
  174  location but remains employed by the employer, the employee is
  175  entitled to the earned sick and safe leave that accrued before
  176  the employee moved to the separate division or location.
  177         (i)1. If an employee is rehired by the employer within 12
  178  months after leaving the employment of the employer, the
  179  employer shall reinstate any unused earned sick and safe leave
  180  that the employee had when the employee left the employment of
  181  the employer.
  182         2. If an employee is rehired by the employer more than 12
  183  months after leaving the employment of the employer, the
  184  employer may not be required to reinstate any unused earned sick
  185  and safe leave that the employee had when the employee left the
  186  employment of the employer.
  187         (j)1. An employer may allow an employee to use earned sick
  188  and safe leave before the employee accrues the amount he or she
  189  wishes to use.
  190         2. If an employee is authorized under subparagraph 1. to
  191  use earned sick and safe leave before it has accrued, the
  192  employer may deduct the amount paid for the earned sick and safe
  193  leave from the wages paid to the employee on the termination of
  194  employment if:
  195         a. The employer and employee mutually consented to the
  196  deduction as evidenced by a document signed by the employee; and
  197         b. The employee leaves the employment of the employer
  198  before the employee has accrued the amount of earned sick and
  199  safe leave that was used.
  200         (7)(a) An employer must allow an employee to use earned
  201  sick and safe leave:
  202         1. To care for or treat the employee’s mental or physical
  203  illness, injury, or condition;
  204         2. To obtain preventive medical care for the employee or
  205  employee’s family member;
  206         3. To care for a family member with a mental or physical
  207  illness, injury, or condition;
  208         4. If the employer’s place of business has closed by order
  209  of a public official due to a public health emergency;
  210         5. If the school of, or child care provider for, the
  211  employee’s family member has closed by order of a public
  212  official due to a public health emergency;
  213         6. To care for a family member if a health official or
  214  health care provider has determined that the family member’s
  215  presence in the community would jeopardize the health of others
  216  because of the family member’s exposure to a communicable
  217  disease; or
  218         7.a. If the absence from work is necessary due to domestic
  219  violence, sexual assault, or stalking committed against the
  220  employee or the employee’s family member; and
  221         b. The leave is being used:
  222         (I) By the employee, on behalf of the employee or the
  223  employee’s family member, to obtain:
  224         (A) Medical attention that is needed to recover from
  225  physical or psychological injury or disability that is caused by
  226  the domestic violence, sexual assault, or stalking;
  227         (B) Services from a victim services organization related to
  228  the domestic violence, sexual assault, or stalking;
  229         (C) Psychological or other counseling related to the
  230  domestic violence, sexual assault, or stalking; or
  231         (D) Legal services, including preparing for or
  232  participating in a civil or criminal proceeding related to or
  233  resulting from the domestic violence, sexual assault, or
  234  stalking; or
  235         (II) During the time that the employee has temporarily
  236  relocated due to the domestic violence, sexual assault, or
  237  stalking.
  238         (b) In order to use earned sick and safe leave, an employee
  239  must:
  240         1. Request the leave from the employer as soon as
  241  practicable after the employee determines that he or she needs
  242  to use the leave;
  243         2. Notify the employer of the anticipated duration of the
  244  leave; and
  245         3. Comply with any reasonable procedures established by the
  246  employer under paragraph (c).
  247         (c)1. Subject to subparagraphs 2. and 3., an employer may
  248  establish reasonable procedures for an employee to follow when
  249  requesting and using earned sick and safe leave.
  250         2. An employer may not require that an employee who is
  251  requesting earned sick and safe leave search for or find a
  252  person to work in the employee’s stead during the time the
  253  employee is using the leave.
  254         3. An employer may not require an employee to:
  255         a. Disclose details of:
  256         (I) The domestic violence, sexual assault, or stalking that
  257  was committed against the employee or the employee’s family
  258  member; or
  259         (II) The mental or physical illness, injury, or condition
  260  of the employee or the employee’s family member; or
  261         b. Provide as certification any information that would
  262  violate the federal Social Security Act or the federal Health
  263  Insurance Portability and Accountability Act.
  264         (d)1. Instead of using earned sick and safe leave under
  265  this section, by mutual consent of the employer and employee, an
  266  employee may work additional hours or trade shifts with another
  267  employee during a pay period to make up work hours that the
  268  employee took off for which the employee could have taken earned
  269  sick and safe leave.
  270         2. An employee is not required to offer or to accept an
  271  offer of additional work hours or a trade in shifts.
  272         (e)1. An employee may use earned sick and safe leave in the
  273  smallest increment that the employer’s payroll system uses to
  274  account for absences or use of the employee’s work time.
  275         2. An employee may not be required to use earned sick and
  276  safe leave in an increment of more than 1 hour.
  277         (f) When wages are paid to an employee, the employer shall
  278  provide a statement in writing regarding the amount of earned
  279  sick and safe leave that is available for use by the employee.
  280         (g)1. Subject to subparagraph 3., an employer may require
  281  an employee who uses earned sick and safe leave for more than
  282  two consecutive scheduled shifts to provide reasonable
  283  documentation to verify that the leave was used appropriately
  284  under paragraph (a).
  285         2. Reasonable documentation that may be required under
  286  subparagraph 1. includes:
  287         a. For leave used under subparagraph (a)5., the notice of
  288  the closure order by a public official in the form in which the
  289  employee received the notice.
  290         b. For leave used under subparagraph (a)1., subparagraph
  291  (a)3., or subparagraph (a)6., documentation from the health
  292  official or health care provider that the use of earned sick and
  293  safe leave is necessary.
  294         c. For leave used under subparagraph (a)7.:
  295         (I) A report by a law enforcement officer indicating that
  296  the employee or the employee’s family member was a victim of
  297  domestic violence, sexual assault, or stalking;
  298         (II) Documentation of an indictment for domestic violence,
  299  sexual assault, or stalking committed against the employee or
  300  the employee’s family member;
  301         (III) Certification by a state’s attorney’s office, child
  302  protective services, law enforcement, the victim’s attorney, or
  303  the victim’s advocate that the employee or the employee’s family
  304  member is a party to or witness in a legal action related to the
  305  domestic violence, sexual assault, or stalking committed against
  306  the employee or the employee’s family member;
  307         (IV) A court order protecting the employee or the
  308  employee’s family member from the perpetrator of the domestic
  309  violence, sexual assault, or stalking committed against the
  310  employee or the employee’s family member; or
  311         (V) A notice from a court, the victim’s attorney, or the
  312  state attorney’s office that the employee or the employee’s
  313  family member appeared or is scheduled to appear in court in
  314  connection with the domestic violence, sexual assault, or
  315  stalking committed against the employee or the employee’s family
  316  member.
  317         3. An employer may not require that:
  318         a. The documentation used for verifying the use of the
  319  earned sick and safe leave under subparagraph (a)1.,
  320  subparagraph (a)3., or subparagraph (a)6. explain the nature of
  321  the mental or physical illness, injury, or condition; or
  322         b. The documentation used for verifying the use of the
  323  earned sick and safe leave under subparagraph (a)7. include
  324  details regarding the domestic violence, sexual assault, or
  325  stalking.
  326         4.a. If documentation required under subparagraph 1.
  327  relates to the mental or physical health of an employee or the
  328  employee’s family member or relates to domestic violence, sexual
  329  assault, or stalking committed against an employee or the
  330  employee’s family member, the employer shall maintain the
  331  documentation in a confidential file that is separate from the
  332  employee’s personnel file.
  333         b. An employer may not disclose the documentation
  334  maintained under sub-subparagraph 2.b. unless the disclosure is
  335  made to the employee or with the permission of the employee.
  336         (8)(a) An employer shall notify his or her employees that
  337  the employees are entitled to earned sick and safe leave under
  338  this section.
  339         (b) The notice provided under paragraph (a) shall include:
  340         1. A statement of how earned sick and safe leave is accrued
  341  under subsection (6);
  342         2. The purposes for which the employer is required to allow
  343  an employee to use earned sick and safe leave under subsection
  344  (7);
  345         3. A statement regarding the prohibition in subsection (11)
  346  of the employer’s taking adverse action against an employee who
  347  exercises a right under this section; and
  348         4. Information regarding the right of an employee to report
  349  an alleged violation of this section by the employer to the
  350  executive director or to bring a civil action under paragraph
  351  (10)(b).
  352         (c)1. The executive director shall create and make
  353  available a poster and a model notice that may be used by an
  354  employer to comply with paragraph (a).
  355         2. The model notice created under subparagraph 1. shall be
  356  printed in English, Spanish, and any other language that the
  357  executive director determines is necessary to notify employees
  358  of the employees’ rights under this section.
  359         (d) An employer may comply with paragraph (a) by:
  360         1. Displaying the poster created by the executive director
  361  under paragraph (c) in a conspicuous and accessible area at the
  362  location at which the employees work;
  363         2. Including the notice created by the executive director
  364  under paragraph (c) in an employee handbook or other written
  365  guide to employees concerning employee benefits or leave
  366  provided by the employer; or
  367         3. Distributing the notice created by the executive
  368  director under paragraph (c) to each employee when the employee
  369  is hired.
  370         (e) If an employer decides not to use the model notice
  371  created by the executive director under paragraph (c), the
  372  notice provided by the employer shall contain the same
  373  information that is included in the model notice.
  374         (f) The notice may be distributed electronically by the
  375  employer to the employees.
  376         (g) An employer who violates this subsection is subject to
  377  a civil penalty of not more than $125 for the first violation
  378  and not more than $250 for each subsequent violation.
  379         (9)(a) An employer shall keep for at least 3 years a record
  380  of earned sick and safe leave accrued and used by each employee.
  381  The employer may keep the record in the same manner that the
  382  employer keeps other records required to be kept under this
  383  section.
  384         (b) After giving the employer notice and determining a
  385  mutually agreeable time for the inspection, the executive
  386  director may inspect a record kept under paragraph (a) for the
  387  purpose of determining whether the employer is complying with
  388  this section.
  389         (c)1. There is a rebuttable presumption that an employer
  390  has violated this section if:
  391         a. There is an allegation that the employer has failed to
  392  accurately provide the amount of earned sick and safe leave
  393  available to an employee; and
  394         b. The employer fails to:
  395         (I) Keep a record as required under paragraph (a); or
  396         (II) Allow the executive director to inspect a record kept
  397  under paragraph (a).
  398         2. The rebuttable presumption in subparagraph 1. may be
  399  overcome only by clear and convincing evidence.
  400         (10)(a) When the executive director determines that this
  401  section has been violated, the executive director may:
  402         1. Attempt to resolve informally by mediation any issue
  403  involved in the violation;
  404         2. With the written consent of the employee, request that
  405  the attorney general bring an action in accordance with this
  406  section on behalf of the employee; and
  407         3. Bring an action on behalf of an employee in the county
  408  where the violation allegedly occurred.
  409         (b) An employee may bring a civil action in a court of
  410  competent jurisdiction against the employer for a violation of
  411  this section regardless of whether the employee first filed a
  412  complaint with the executive director.
  413         (c) An action brought under paragraph (a) or paragraph (b)
  414  must be filed within 3 years after the occurrence of the act on
  415  which the action is based.
  416         (d)1. If, in an action under paragraph (a) or paragraph
  417  (b), a court finds that an employer violated this section, the
  418  court may award the employee:
  419         a. The full monetary value of any unpaid earned sick and
  420  safe leave;
  421         b. Actual economic damages suffered by the employee as a
  422  result of the employer’s violation of this section;
  423         c. An additional amount not exceeding three times the
  424  damages awarded under sub-subparagraph b.;
  425         d. Reasonable attorney fees and other costs; and
  426         e. Any other relief that the court deems appropriate,
  427  including reinstatement of employment, back pay, and injunctive
  428  relief.
  429         2. If benefits of an employee are recovered under this
  430  subsection, they shall be paid to the employee without cost to
  431  the employee.
  432         3. If the action was brought by the attorney general under
  433  subparagraph (a)2., the court may order the employer to pay
  434  $1,000 per violation to the state.
  435         (11)(a) As used in this subsection, the term “adverse
  436  action” includes:
  437         1. Discharge.
  438         2. Demotion.
  439         3. Threatening the employee with discharge or demotion.
  440         4. Any other retaliatory action that results in a change to
  441  the terms or conditions of employment that would dissuade a
  442  reasonable employee from exercising a right under this section.
  443         (b) A person may not interfere with the exercise of, or the
  444  attempt to exercise, any right given under this section.
  445         (c)1. An employer may not:
  446         a. Take adverse action or discriminate against an employee
  447  because the employee exercises in good faith the rights
  448  protected under this section; or
  449         b. Count earned sick and safe leave that an employee used
  450  in accordance with this section as an absence that may lead to
  451  or result in any adverse action taken against the employee.
  452         2. There is a rebuttable presumption that an employer has
  453  violated this subsection if the employer takes adverse action
  454  against an employee within 90 days after the employee:
  455         a. Files a complaint with the executive director alleging a
  456  violation of this section or brings a civil action under
  457  paragraph (10)(b);
  458         b. Informs a person about an alleged violation of this
  459  subsection by the employer;
  460         c. Cooperates with the executive director or another person
  461  in the investigation or prosecution of an alleged violation of
  462  this subsection by the employer; or
  463         d. Opposes a policy or practice of the employer or an act
  464  committed by the employer that is unlawful under this
  465  subsection.
  466         (d) The protections afforded under this subsection apply to
  467  an employee who mistakenly, but in good faith, alleges a
  468  violation of this subsection.
  469         (12)(a) An employee, in bad faith, may not:
  470         1. File a complaint with the executive director alleging a
  471  violation of this section;
  472         2. Bring an action under paragraph (10)(b); or
  473         3. Testify in an action under paragraph (10)(b).
  474         (b) An employee who violates this subsection commits a
  475  misdemeanor of the first degree, punishable as provided in s.
  476  775.082 or s. 775.083.
  477         Section 2. This act shall take effect July 1, 2015.