Florida Senate - 2020                                      SB 90
       By Senator Stewart
       13-00036-20                                             202090__
    1                        A bill to be entitled                      
    2         An act relating to discrimination in labor and
    3         employment; creating the “Senator Helen Gordon Davis
    4         Fair Pay Protection Act”; amending s. 448.07, F.S.;
    5         defining terms; prohibiting an employer from providing
    6         less favorable employment opportunities to employees
    7         based on their sex; providing exceptions; revising
    8         applicability; providing civil penalties; amending s.
    9         448.102, F.S.; prohibiting an employer from taking
   10         certain employment actions against employees; creating
   11         s. 448.111, F.S.; prohibiting an employer from
   12         engaging in certain activities relating to wages and
   13         benefits; prohibiting an employer from requiring
   14         employees to sign certain waivers and documents;
   15         providing applicability; authorizing an employer to
   16         confirm wage or salary history under certain
   17         conditions; providing an effective date.
   19  Be It Enacted by the Legislature of the State of Florida:
   21         Section 1. This act may be cited as the “Senator Helen
   22  Gordon Davis Fair Pay Protection Act.”
   23         Section 2. Section 448.07, Florida Statutes, is reordered
   24  and amended to read:
   25         448.07 Wage rate discrimination based on sex prohibited.—
   26         (1) DEFINITIONS.—As used in this section, unless the
   27  context or subject matter clearly requires otherwise, the term
   28  following terms shall have the meanings as defined in this
   29  section:
   30         (a)“Business necessity” means an overriding legitimate
   31  business purpose that relies on a bona fide factor, as described
   32  in subparagraph (2)(a)4., to effectively fulfill such business
   33  purpose.
   34         (b)(a) “Employee” means any individual employed by an
   35  employer, including individuals employed by the state or any of
   36  its political subdivisions or instrumentalities of subdivisions.
   37         (c)(b) “Employer” means any person who employs two or more
   38  employees.
   39         (d)“Less favorable employment opportunity” means:
   40         1.Assigning or directing an employee to a position or
   41  career track in which the work performed requires substantially
   42  less skill, effort, and responsibility than the work performed
   43  by the majority of individuals in the employee’s same occupation
   44  and labor market area;
   45         2.Failing to provide an employee with information about
   46  promotions or advancement in the full range of career tracks
   47  offered by the employer;
   48         3.Assigning the employee work less likely to lead to a
   49  promotion or career advancement opportunity; or
   50         4.Limiting or depriving an employee of a promotion or
   51  career advancement opportunity that would otherwise be available
   52  to the employee but for the employee’s sex.
   53         (g)(c) “Wages” means and includes all compensation paid by
   54  an employer or the employer’s his or her agent for the
   55  performance of service by an employee, including the cash value
   56  of all compensation paid in any medium other than cash.
   57         (e)(d) “Rate” with reference to wages means the basis of
   58  compensation for services by an employee for an employer and
   59  includes compensation based on time spent in the performance of
   60  such services, on the number of operations accomplished, or on
   61  the quality produced or handled.
   62         (f)(e) “Unpaid wages” means the difference between the
   63  wages actually paid to an employee and the wages required to be
   64  paid to an employee pursuant to subsection (3).
   66         (a) An No employer may not provide a less favorable
   67  employment opportunity to an employee based on the employee’s
   68  shall discriminate between employees on the basis of sex or pay
   69  the employee by paying wages to employees at a rate less than
   70  the rate the employer pays at which he or she pays wages to an
   71  employee employees of the opposite sex for substantially similar
   72  equal work on a job jobs the performance of which requires equal
   73  skill, effort, and responsibility, and which is are performed
   74  under similar working conditions, except when the employer
   75  demonstrates the entire wage differential is based on one or
   76  more of the following reasonably applied factors when such
   77  payment is made pursuant to:
   78         1. A seniority system;
   79         2. A merit system;
   80         3. A system that which measures earnings by quantity or
   81  quality of production; or
   82         4. A bona fide differential based on any reasonable factor
   83  other than sex, including, but not limited to, education,
   84  training, or experience. This subparagraph applies only if the
   85  employer demonstrates that the factor is not based on, or
   86  derived from, a sex-based wage differential, is job-related with
   87  respect to the position in question, and is consistent with a
   88  business necessity. This subparagraph does not apply if the
   89  employee demonstrates that an alternative business practice
   90  exists that would serve the same business purpose without
   91  producing the wage differential.
   92         (b)An employer who is paying a wage in violation of this
   93  section may not reduce another employee’s wage to comply with
   94  this section when exercised in good faith.
   95         (c)(b)A No person may not shall cause or attempt to cause
   96  an employer to discriminate against an any employee in violation
   97  of the provisions of this section.
   98         (3) CIVIL ACTION FOR UNPAID WAGES.—Any employer or person
   99  who violates the provisions of this section is liable to the
  100  employee for the amount of the difference between the amount the
  101  employee was paid and the amount he or she should have been paid
  102  under this section, plus liquidated damages. Nothing in this
  103  section allows a claimant to recover more than an amount equal
  104  to his or her unpaid wages while so employed for 1 year prior to
  105  the filing of the claim. An action to recover such liability may
  106  be maintained in any court of competent jurisdiction by one or
  107  more employees on their own behalf or on behalf of other
  108  employees similarly situated the aggrieved employee within 3
  109  years 6 months after the date of the alleged violation
  110  termination of employment. For purposes of this subsection, a
  111  violation occurs when a discriminatory compensation decision or
  112  other practice is adopted, when an employee becomes subject to a
  113  discriminatory compensation decision or other practice, or when
  114  an employee is affected by the application of a discriminatory
  115  compensation decision or other practice, including each time
  116  wages are paid, resulting in whole or in part from such a
  117  decision or other practice. The court in such action may award
  118  to the prevailing party costs of the action and a reasonable
  119  attorney attorney’s fee.
  120         (4) CIVIL PENALTIES.—
  121         (a)An employer who violates this section is subject to a
  122  civil penalty:
  123         1.Not to exceed $2,500 for a first violation.
  124         2.Not to exceed $3,000 for a second violation.
  125         3.Not to exceed $5,000 for a third or subsequent
  126  violation.
  127         (b)In determining the amount of a civil penalty to be
  128  assessed under paragraph (a), a court of competent jurisdiction
  129  shall consider the severity of the violation Nothing in this
  130  section or in s. 725.07, relating to discrimination based on sex
  131  in providing equal pay for equal services performed, is
  132  applicable to any employer, labor organization or member
  133  thereof, or employee whose employer is subject to the federal
  134  Fair Labor Standards Act of 1938, as amended.
  135         Section 3. Section 448.102, Florida Statutes, is amended to
  136  read:
  137         448.102 Prohibitions.—An employer may not take any
  138  retaliatory or discriminatory personnel action against an
  139  employee because the employee has:
  140         (1) Disclosed, or threatened to disclose, to any
  141  appropriate governmental agency, under oath, in writing, an
  142  activity, policy, or practice of the employer that is in
  143  violation of a law, rule, or regulation. However, this
  144  subsection does not apply unless the employee has, in writing,
  145  brought the activity, policy, or practice to the attention of a
  146  supervisor or the employer and has afforded the employer a
  147  reasonable opportunity to correct the activity, policy, or
  148  practice.
  149         (2) Provided information to, or testified before, any
  150  appropriate governmental agency, person, or entity conducting an
  151  investigation, hearing, or inquiry into an alleged violation of
  152  a law, rule, or regulation by the employer.
  153         (3) Objected to, or refused to participate in, any
  154  activity, policy, or practice of the employer which is in
  155  violation of a law, rule, or regulation.
  156         (4)(a)Discussed or disclosed the employee’s own wages;
  157         (b)Inquired about another employee’s wages;
  158         (c)Discussed another employee’s wages, if such wages have
  159  been voluntarily disclosed by such employee;
  160         (d)Requested that the employer provide a reason for the
  161  amount of the employee’s own wages; or
  162         (e)Testified or will testify, assisted, or participated in
  163  an investigation or proceeding under this section.
  164         Section 4. Section 448.111, Florida Statutes, is created to
  165  read:
  166         448.111Prohibited employer activities related to wages and
  167  benefits.—
  168         (1)An employer may not:
  169         (a)Rely on the wage or salary history of a current,
  170  former, or prospective employee in determining the wages or
  171  salary for such individual.
  172         (b)Orally or in writing seek, request, or require the wage
  173  or salary history from a current, former, or prospective
  174  employee as a condition of being interviewed, as a condition of
  175  continuing to be considered for an offer of employment, or as a
  176  condition of employment or promotion.
  177         (c)Orally or in writing seek, request, or require the wage
  178  or salary history of a current, former, or prospective employee
  179  from a current or former employer except as provided in
  180  subsection (3).
  181         (d)Retaliate against or refuse to interview, hire,
  182  promote, or otherwise employ a current, former, or prospective
  183  employee:
  184         1.Based upon prior wage or salary history.
  185         2.Because the current, former, or prospective employee did
  186  not provide wage or salary history in accordance with this
  187  section.
  188         3.Because the current, former, or prospective employee
  189  filed a complaint alleging a violation of this section.
  190         (e)Prohibit an employee from:
  191         1.Discussing or disclosing the employee’s own wages;
  192         2.Inquiring about another employee’s wages;
  193         3.Discussing another employee’s wages, if such wages have
  194  been voluntarily disclosed by such employee; or
  195         4.Requesting that the employer provide a reason for the
  196  amount of the employee’s own wages.
  197         (f)Require an employee to sign a waiver or any other
  198  document that prohibits the employee from:
  199         1.Discussing or disclosing the employee’s own wages;
  200         2.Inquiring about another employee’s wages; or
  201         3.Discussing another employee’s wages, if such wages have
  202  been voluntarily disclosed by such employee.
  203         (2)This section does not prevent a current, former, or
  204  prospective employee from voluntarily disclosing wage or salary
  205  history, including, but not limited to, for the purposes of
  206  negotiating wages or salary.
  207         (3)An employer may confirm wage or salary history only if,
  208  at the time an offer of employment with compensation is made,
  209  the prospective employee responds to the offer by providing
  210  prior wage information to support a wage higher than that
  211  offered by the employer.
  212         Section 5. This act shall take effect July 1, 2020.