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.