Florida Senate - 2016                                     SB 384
       By Senator Bullard
       39-00105-16                                            2016384__
    1                        A bill to be entitled                      
    2         An act relating to employment practices; creating ch.
    3         444, F.S.; creating s. 444.001, F.S.; providing a
    4         short title; creating s. 444.002, F.S.; providing
    5         legislative findings and intent; creating s. 444.003,
    6         F.S.; defining terms; creating s. 444.004, F.S.;
    7         requiring an employer to allow an employee to take
    8         paid family care leave to bond with a new child upon
    9         the child’s birth, adoption, or foster care placement;
   10         requiring an employee to take certain action in order
   11         to receive family care leave; specifying limitations
   12         and duties with respect to an employer’s
   13         administration of family care leave; requiring that
   14         family care leave be taken concurrently with any leave
   15         taken pursuant to federal family and medical leave
   16         provisions; creating s. 444.005, F.S.; requiring an
   17         employer to provide notice to employees of the right
   18         to paid family care leave; prescribing notice
   19         requirements; requiring the Department of Economic
   20         Opportunity to create a poster and a model notice that
   21         specify family care leave rights; specifying
   22         circumstances under which an employer is deemed in
   23         compliance with notice requirements; providing a
   24         penalty for an employer’s failure to comply with such
   25         requirements; creating s. 444.006, F.S.; authorizing
   26         the executive director of the department to conduct an
   27         investigation under certain circumstances;
   28         establishing rebuttable presumptions that an employer
   29         has violated certain provisions of ch. 444, F.S.,
   30         under specified circumstances; authorizing the
   31         executive director to take certain action in the event
   32         of specified violations; authorizing an employee to
   33         bring a civil action against an employer for a
   34         violation within a specified timeframe; authorizing
   35         the award of specified compensation, damages, and
   36         fees; providing protections for an employee who acts
   37         in good faith; prohibiting an employee from taking
   38         certain actions in bad faith; providing a penalty;
   39         creating s. 444.007, F.S.; authorizing the department
   40         to adopt rules; creating s. 444.008, F.S.; providing
   41         for construction; amending s. 760.10, F.S.; revising
   42         the Florida Civil Rights Act of 1992 to prohibit
   43         specified employment practices on the basis of
   44         pregnancy, childbirth, or a related medical condition;
   45         providing for leave, maintenance of health coverage,
   46         reasonable accommodation and transfer, and return
   47         rights for an employee who is disabled from pregnancy,
   48         childbirth, or a related medical condition; providing
   49         for construction; reenacting and amending s.
   50         760.11(1), F.S., relating to administrative and civil
   51         remedies for violations of the Florida Civil Rights
   52         Act of 1992; conforming a cross-reference; providing
   53         an effective date.
   55  Be It Enacted by the Legislature of the State of Florida:
   57         Section 1. Chapter 444, Florida Statutes, to be entitled
   58  “Paid Family Care Leave,” is created.
   59         Section 2. Section 444.001, Florida Statutes, is created to
   60  read:
   61         444.001 Short title.—This chapter may be cited as the
   62  “Florida Paid Family Care Leave Act.”
   63         Section 3. Section 444.002, Florida Statutes, is created to
   64  read:
   65         444.002 Legislative findings and intent.—The Legislature
   66  finds that it is in the public interest to provide paid family
   67  care leave to workers for the birth, adoption, or foster care
   68  placement of a new child. The need for paid family care leave
   69  has increased as the participation of both parents in the
   70  workforce has increased and the number of single parents has
   71  grown. Despite knowledge of the importance of time spent bonding
   72  with a new child, the majority of workers in this state are
   73  unable to take family care leave because they are unable to
   74  afford leave without pay. When a worker does not receive income
   75  during a leave of absence, his or her family suffers as a result
   76  of the worker’s loss of income, increasing demand on the state’s
   77  reemployment assistance program and dependence on the state’s
   78  welfare system. Therefore, in an effort to assist workers in
   79  reconciling the demands of work and family, the Legislature
   80  intends to require employers to allow employees to take a paid
   81  family care leave to bond with their minor child during the
   82  first year after the birth of the child or the placement of the
   83  child through the foster care system or by adoption.
   84         Section 4. Section 444.003, Florida Statutes, is created to
   85  read:
   86         444.003 Definitions.—As used in this chapter, the term:
   87         (1) “Adverse action” includes:
   88         (a) Discharge.
   89         (b) Demotion.
   90         (c) A threat of discharge or demotion to an employee.
   91         (d) Any other retaliatory action that results in a change
   92  in the terms or conditions of employment which would dissuade a
   93  reasonable employee from exercising a right under this chapter.
   94         (2) “Child” means a biological, adopted, or foster son or
   95  daughter or a stepson or stepdaughter of an employee.
   96         (3) “Department” means the Department of Economic
   97  Opportunity.
   98         (4) “Employee” means a person who performs services for
   99  hire for an employer for an average of 20 or more hours per
  100  week. The term includes all individuals employed at any site
  101  owned or operated by an employer, not including an independent
  102  contractor.
  103         (5) “Employer” has the same meaning as defined in s.
  104  760.02.
  105         (6) “Executive director” means the executive director of
  106  the Department of Economic Opportunity.
  107         (7) “Family care leave” means a paid leave of absence from
  108  employment for reason of the birth of an employee’s child or the
  109  placement of a child with an employee through the foster care
  110  system or by adoption.
  111         Section 5. Section 444.004, Florida Statutes, is created to
  112  read:
  113         444.004 Family care leave upon the birth, adoption, or
  114  foster care placement of a child.—
  115         (1) Beginning January 1, 2017, an employer shall allow an
  116  employee to take family care leave from employment, for up to 6
  117  weeks, for the employee to bond with his or her minor child
  118  during the first year after the birth or placement of the child
  119  in connection with foster care or adoption. Such family care
  120  leave shall be without loss of pay or diminution of any
  121  privilege, benefit, or right arising out of such employment.
  122         (2) In order to receive family care leave, an employee
  123  shall:
  124         (a) Request the leave from his or her employer as soon as
  125  practicable after the employee determines that he or she needs
  126  to take leave to bond with a new child.
  127         (b) Notify the employer of the anticipated duration of the
  128  leave.
  129         (c) Comply with any reasonable procedures established by
  130  the employer for an employee to follow when requesting and
  131  obtaining leave.
  132         (3) An employer may require an employee who requests or
  133  obtains family care leave to provide reasonable documentation to
  134  verify eligibility to take family care leave.
  135         (4) An employer may not take adverse action against an
  136  employee for requesting or obtaining family care leave
  137  authorized under this section.
  138         (5) An employer shall retain a record of family care leave
  139  obtained by an employee for at least 3 years. After giving the
  140  employer notice and determining a mutually agreeable time for
  141  inspection, the executive director may inspect a record kept
  142  pursuant to this subsection for the purpose of determining the
  143  employer’s compliance. If an employer fails to retain a record
  144  as required under this subsection or to allow the executive
  145  director to inspect such records, the executive director may
  146  take action pursuant to s. 444.006(3).
  147         (6) Family care leave taken pursuant to this section must
  148  be taken concurrently with leave taken pursuant to the Family
  149  and Medical Leave Act of 1993, Pub. L. No. 103-3.
  150         Section 6. Section 444.005, Florida Statutes, is created to
  151  read:
  152         444.005 Notice requirements.—
  153         (1) An employer shall notify his or her employee that the
  154  employee is entitled to family care leave to bond with a new
  155  child upon meeting the requirements for eligibility set forth in
  156  this chapter.
  157         (2) The notice must include:
  158         (a) The purposes for which the employer is required to
  159  allow an employee to take a leave of absence.
  160         (b) A statement regarding the prohibition of the employer’s
  161  taking adverse action against an employee who exercises a right
  162  under this section.
  163         (c) Information regarding the right of an employee to
  164  report an alleged violation of this chapter by the employer to
  165  the executive director or to bring a civil action under s.
  166  444.006.
  167         (3) The department shall create and make available a poster
  168  and a model notice that may be used by an employer in complying
  169  with subsection (1). The poster and model notice must be printed
  170  in English, Spanish, and any other language that the executive
  171  director determines is necessary to notify employees of their
  172  rights under this chapter.
  173         (4) An employer is deemed to be in compliance with
  174  subsection (1) by:
  175         (a) Displaying the poster created by the executive director
  176  in a conspicuous and accessible area at the site at which the
  177  employees work;
  178         (b) Including the model notice created by the executive
  179  director in an employee handbook or other written guide to
  180  employees concerning employee benefits or leave provided by the
  181  employer; or
  182         (c) Providing the model notice created by the executive
  183  director to each employee at the time of initial hiring.
  184         (5) If an employer decides not to use the model notice
  185  created by the executive director, the employer’s notice must
  186  contain the same information that is included in the model
  187  notice.
  188         (6) In lieu of posting the model notice, an employer may
  189  distribute the employer’s notice to employees by electronic
  190  means.
  191         (7) An employer who violates this section is subject to a
  192  civil penalty of not more than $125 for the first violation and
  193  not more than $250 for each subsequent violation.
  194         Section 7. Section 444.006, Florida Statutes, is created to
  195  read:
  196         444.006 Violations of chapter; civil action; penalties.—
  197         (1) Upon the receipt of a written complaint from an
  198  employee, the executive director may conduct an investigation to
  199  determine whether the employer has acted in violation of this
  200  chapter.
  201         (2)(a) There is a rebuttable presumption that an employer
  202  has violated this chapter if the employer takes adverse action
  203  against an employee within 90 days after the employee:
  204         1. Files a complaint with the executive director alleging a
  205  violation of this chapter or brings a civil action under this
  206  section;
  207         2. Informs a person about an alleged violation of this
  208  chapter by his or her employer;
  209         3. Cooperates with the executive director or another person
  210  in the investigation or prosecution of an alleged violation of
  211  this chapter by his or her employer; or
  212         4. Opposes a policy or practice of his or her employer of
  213  an act committed by the employer which is prohibited under this
  214  chapter.
  215         (b) The rebuttable presumption may be overcome by clear and
  216  convincing evidence.
  217         (3) If the executive director determines that a violation
  218  of this chapter has occurred, the executive director may:
  219         (a) Attempt to informally resolve any pertinent issue by
  220  mediation;
  221         (b) With the written consent of the employee, request the
  222  Attorney General to bring an action on behalf of the employee in
  223  accordance with this section; or
  224         (c) Bring an action on behalf of an employee in the county
  225  where the violation allegedly occurred.
  226         (4) An employee may bring a civil action in a court of
  227  competent jurisdiction against his or her employer for a
  228  violation of this chapter regardless of whether the employee
  229  first filed a complaint with the executive director.
  230         (5) An action brought under subsection (3) or subsection
  231  (4) must be filed within 3 years after the occurrence of the act
  232  on which the action is based.
  233         (6)(a) If a court finds that an employer violated this
  234  chapter in an action brought under subsection (3) or subsection
  235  (4), the court may award the employee:
  236         1. The full monetary value of any unpaid family care leave
  237  that the employee was unlawfully denied;
  238         2. Actual economic damages suffered by the employee as a
  239  result of the employer’s violation of this chapter;
  240         3. An additional amount not exceeding three times the
  241  damages awarded under subparagraph 2.;
  242         4. Reasonable attorney fees and other costs; and
  243         5. Any other relief that the court deems appropriate,
  244  including reinstatement of employment, back pay, and injunctive
  245  relief.
  246         (b) If the full monetary value of any unpaid family care
  247  leave of an employee is recovered under this subsection, such
  248  leave shall be paid to the employee without cost to the
  249  employee.
  250         (c) If the action was brought by the Attorney General under
  251  paragraph (3)(b), the court may order the employer to pay $1,000
  252  per violation to the state.
  253         (7) There is a rebuttable presumption that an employer has
  254  violated this chapter if the employer takes adverse action
  255  against an employee within 90 days after the employee:
  256         (a) Files a complaint with the executive director alleging
  257  a violation of this chapter or brings a civil action under
  258  subsection (4);
  259         (b) Informs a person about an alleged violation of this
  260  chapter by his or her employer;
  261         (c) Cooperates with the executive director or another
  262  person in the investigation or prosecution of an alleged
  263  violation of this chapter by his or her employer; or
  264         (d) Opposes a policy or practice of his or her employer or
  265  an act committed by his or her employer which is unlawful under
  266  this chapter.
  268  The protections afforded under this subsection apply to an
  269  employee who mistakenly, but in good faith, alleges a violation
  270  of this chapter.
  271         (8) An employee, in bad faith, may not file a complaint
  272  with the executive director alleging a violation of this chapter
  273  or bring or testify in an action brought under this section. An
  274  employee who violates this subsection commits a misdemeanor of
  275  the first degree, punishable as provided in s. 775.082 or s.
  276  775.083.
  277         Section 8. Section 444.007, Florida Statutes, is created to
  278  read:
  279         444.007 Rules.—The department may adopt rules to implement
  280  and administer this chapter.
  281         Section 9. Section 444.008, Florida Statutes, is created to
  282  read:
  283         444.008 Construction.—
  284         (1) This chapter does not diminish an employer’s obligation
  285  to comply with a collective bargaining agreement, contract,
  286  employee benefit plan, or employer policy, as applicable, which
  287  requires leave in excess of that required by this chapter for
  288  the birth, adoption, or placement of a child.
  289         (2) An individual’s right to family care leave under this
  290  chapter may not be diminished by a collective bargaining
  291  agreement entered into or renewed or an employer policy adopted
  292  or retained on or after July 1, 2016. Any agreement by an
  293  individual to waive his or her rights under this chapter is
  294  deemed against public policy and is void and unenforceable.
  295         Section 10. Present subsections (2) through (10) of section
  296  760.10, Florida Statutes, are renumbered as subsections (3)
  297  through (11), respectively, and a new subsection (2) is added to
  298  that section, to read:
  299         760.10 Unlawful employment practices.—
  300         (2)In addition to the provisions governing pregnancy under
  301  subsection (1), it is an unlawful employment practice for an
  302  employer to:
  303         (a) Refuse to allow a female employee disabled by
  304  pregnancy, childbirth, or a related medical condition to take
  305  unpaid leave for a period, not to exceed 4 months, during which
  306  the female employee is disabled on account of pregnancy,
  307  childbirth, or a related medical condition. An employee is
  308  entitled to use any accrued vacation leave to receive
  309  compensation during the unpaid period of leave. An employer may
  310  require an employee who plans to take leave pursuant to this
  311  paragraph to provide the employer reasonable notice of the date
  312  the leave will commence and the estimated duration of the leave.
  313         (b) Refuse to maintain and pay for coverage for a group
  314  health plan, as defined in s. 5000(b)(1) of the Internal Revenue
  315  Code, for an eligible employee who takes leave pursuant to
  316  paragraph (a) at the level and under the conditions that
  317  coverage would have been provided if the employee had
  318  continuously worked for the duration of the leave. This
  319  paragraph does not preclude an employer from maintaining and
  320  paying for coverage under a group health plan for a period
  321  exceeding 4 months. An employer may recover the premium that the
  322  employer paid for maintaining coverage as required under this
  323  paragraph if:
  324         1. The employee fails to return from leave after the period
  325  of leave to which the employee is entitled to has expired; and
  326         2. The employee’s failure to return from leave is for a
  327  reason other than the employee’s taking paid family care leave
  328  pursuant to chapter 444 or other than the continuation,
  329  recurrence, or onset of a medical condition that entitles the
  330  employee to leave under paragraph (a) or circumstance beyond the
  331  control of the employee.
  332         (c) Refuse to provide reasonable accommodation for an
  333  employee, if she so requests with the advice of her health care
  334  provider, for pregnancy, childbirth, or a medical condition
  335  related to pregnancy or childbirth. As an accommodation, and
  336  with the advice of her health care provider, an employee may
  337  request transfer to a less strenuous or hazardous position for
  338  the duration of her pregnancy. This paragraph does not require
  339  an employer to create additional employment duties that the
  340  employer would not otherwise have created, discharge another
  341  employee, transfer an employee with more seniority, or promote
  342  an employee who is not qualified to perform certain duties.
  343         (d) Refuse to return an employee to the same position after
  344  the period of leave to which the employee is entitled has
  345  expired. If her same position is no longer available, an
  346  employer must offer a position that is comparable in terms of
  347  pay, location, job content, and promotional opportunities,
  348  unless the employer can prove that no comparable position
  349  exists.
  350         (e) Otherwise interfere with, restrain, or deny the
  351  exercise of, or the attempt to exercise, any right provided
  352  under this subsection.
  354  This subsection may not be construed to affect any other
  355  provision of law relating to pregnancy, or in any way to
  356  diminish the coverage of pregnancy, childbirth, or a medical
  357  condition related to pregnancy or childbirth under any other
  358  law, including chapter 444. An employee is entitled to take
  359  leave pursuant to this subsection in addition to any paid family
  360  care leave that the employee may be eligible to receive pursuant
  361  to chapter 444.
  362         Section 11. Subsection (1) of section 760.11, Florida
  363  Statutes, is reenacted and amended to read:
  364         760.11 Administrative and civil remedies; construction.—
  365         (1) Any person aggrieved by a violation of ss. 760.01
  366  760.10 may file a complaint with the commission within 365 days
  367  of the alleged violation, naming the employer, employment
  368  agency, labor organization, or joint labor-management committee,
  369  or, in the case of an alleged violation of s. 760.10(6) s.
  370  760.10(5), the person responsible for the violation and
  371  describing the violation. Any person aggrieved by a violation of
  372  s. 509.092 may file a complaint with the commission within 365
  373  days of the alleged violation naming the person responsible for
  374  the violation and describing the violation. The commission, a
  375  commissioner, or the Attorney General may in like manner file
  376  such a complaint. On the same day the complaint is filed with
  377  the commission, the commission shall clearly stamp on the face
  378  of the complaint the date the complaint was filed with the
  379  commission. In lieu of filing the complaint with the commission,
  380  a complaint under this section may be filed with the federal
  381  Equal Employment Opportunity Commission or with any unit of
  382  government of the state which is a fair-employment-practice
  383  agency under 29 C.F.R. ss. 1601.70-1601.80. If the date the
  384  complaint is filed is clearly stamped on the face of the
  385  complaint, that date is the date of filing. The date the
  386  complaint is filed with the commission for purposes of this
  387  section is the earliest date of filing with the Equal Employment
  388  Opportunity Commission, the fair-employment-practice agency, or
  389  the commission. The complaint shall contain a short and plain
  390  statement of the facts describing the violation and the relief
  391  sought. The commission may require additional information to be
  392  in the complaint. The commission, within 5 days of the complaint
  393  being filed, shall by registered mail send a copy of the
  394  complaint to the person who allegedly committed the violation.
  395  The person who allegedly committed the violation may file an
  396  answer to the complaint within 25 days of the date the complaint
  397  was filed with the commission. Any answer filed shall be mailed
  398  to the aggrieved person by the person filing the answer. Both
  399  the complaint and the answer shall be verified.
  400         Section 12. This act shall take effect July 1, 2016.