Florida Senate - 2022 SB 1756



By Senator Torres





15-01677-22 20221756__
1 A bill to be entitled
2 An act relating to the Department of Labor; creating
3 s. 20.71, F.S.; creating the Department of Labor as a
4 new department of state government; providing for the
5 secretary of the department to be appointed by the
6 Governor and confirmed by the Senate; authorizing the
7 secretary to establish divisions and regional offices
8 of the department; providing the purpose of the
9 department; authorizing the department to adopt rules;
10 amending s. 448.109, F.S.; revising requirements for
11 notifying employees of certain rights; conforming
12 provisions to changes made by the act; amending s.
13 448.110, F.S.; designating the Department of Labor as
14 the state Agency for Workforce Innovation for purposes
15 of implementing s. 24, Art. X of the State
16 Constitution; defining terms; revising the protected
17 rights of employees; creating a rebuttable presumption
18 and burden of proof for an employer; providing
19 applicability; prohibiting a person or entity from
20 entering into certain contracts relating to labor or
21 services under certain circumstances; authorizing and
22 providing the department certain powers to conduct
23 investigations, issue citations, and enforce and
24 collect judgments by certain means; providing for
25 appropriate relief, including injunctive relief, under
26 certain circumstances; providing a process for review
27 of a citation, levy, or stop-order issued by the
28 department; providing civil and criminal penalties;
29 tolling the statute of limitations during an
30 investigation; providing liability; requiring and
31 authorizing the department to take certain actions
32 relating to judgments against employers; requiring all
33 employers, client employers, and labor contractors to
34 create certain records documenting their compliance
35 with specified laws and maintain the records for a
36 specified length of time; requiring employers, client
37 employers, and labor contractors to allow the
38 department reasonable access to the records;
39 authorizing the department to partner with other
40 entities for administration and enforcement purposes;
41 requiring the department to establish an outreach and
42 education partnership program, subject to an
43 appropriation by the Legislature; providing duties and
44 powers of such program; creating s. 448.111, F.S.;
45 creating the Department of Labor Community Advisory
46 Board within the department; providing for membership,
47 meetings, and duties of the advisory board; requiring
48 an annual report to the Secretary of Labor, the
49 Governor, and the Legislature; providing an effective
50 date.
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Section 20.71, Florida Statutes, is created to
55 read:
56 20.71 Department of Labor; creation; powers and duties.—
57 (1) There is created the Department of Labor.
58 (2) The head of the department is the Secretary of Labor,
59 who shall be appointed by the Governor, subject to confirmation
60 by the Senate. The secretary shall serve at the pleasure of and
61 report to the Governor.
62 (3) The secretary may create divisions within the
63 department and allocate various functions of the department
64 among such divisions.
65 (4)(a) The headquarters of the department shall be located
66 in Tallahassee. However, the department may establish regional
67 offices throughout the state as the secretary deems necessary
68 for the efficient operation of the department in accomplishing
69 its purpose.
70 (b) The purpose of the department is to enforce s. 24, Art.
71 X of the State Constitution, s. 448.110, and any other law that
72 the department has enforcement authority over as designated by
73 the Legislature.
74 (5) The department may adopt rules as necessary to carry
75 out the functions and purposes of the department.
76 Section 2. Paragraph (a) of subsection (3) of section
77 448.109, Florida Statutes, is amended to read:
78 448.109 Notification of the state minimum wage.—
79 (3)(a) Each year the Department of Labor Department of
80 Economic Opportunity shall, on or before December 1, create and
81 make available to employers a poster in English, and in Spanish,
82 and any other languages, as necessary, which gives notice of all
83 of the following:
84 1. The right to the minimum wage as provided by s. 24, Art.
85 X of the State Constitution and s. 448.110.
86 2. The right to be protected from retaliation for
87 exercising in good faith any right protected under s. 24, Art. X
88 of the State Constitution and s. 448.110.
89 3. The right to file a complaint with the Department of
90 Labor or bring a civil action for a violation of s. 24, Art. X
91 of the State Constitution or s. 448.110. which reads
92 substantially as follows:
93 NOTICE TO EMPLOYEES
94 The Florida minimum wage is $ ...(amount)... per hour, with a
95 minimum wage of at least $ ...(amount)... per hour for tipped
96 employees, in addition to tips, for January 1, ...(year)...,
97 through December 31, ...(year)....
98 The rate of the minimum wage is recalculated yearly on September
99 30, based on the Consumer Price Index. Every year on January 1
100 the new Florida minimum wage takes effect.
101 An employer may not retaliate against an employee for exercising
102 his or her right to receive the minimum wage. Rights protected
103 by the State Constitution include the right to:
104 1. File a complaint about an employer’s alleged noncompliance
105 with lawful minimum wage requirements.
106 2. Inform any person about an employer’s alleged noncompliance
107 with lawful minimum wage requirements.
108 3. Inform any person of his or her potential rights under
109 Section 24, Article X of the State Constitution and to
110 assist him or her in asserting such rights.
111 An employee who has not received the lawful minimum wage after
112 notifying his or her employer and giving the employer 15 days to
113 resolve any claims for unpaid wages may bring a civil action in
114 a court of law against an employer to recover back wages plus
115 damages and attorney’s fees.
116 An employer found liable for intentionally violating minimum
117 wage requirements is subject to a fine of $1,000 per violation,
118 payable to the state.
119 The Attorney General or other official designated by the
120 Legislature may bring a civil action to enforce the minimum
121 wage.
122 For details see Section 24, Article X of the State Constitution.
123 Section 3. Section 448.110, Florida Statutes, is amended to
124 read:
125 448.110 State minimum wage; annual wage adjustment;
126 enforcement.—
127 (1) This section may be cited as the “Florida Minimum Wage
128 Act.”
129 (2) The purpose of this section is to provide measures
130 appropriate for the implementation of s. 24, Art. X of the State
131 Constitution, in accordance with authority granted to the
132 Legislature under pursuant to s. 24(f), Art. X of the State
133 Constitution. To implement s. 24, Art. X of the State
134 Constitution, the Department of Labor Department of Economic
135 Opportunity is designated as the state Agency for Workforce
136 Innovation.
137 (3) As used in this section, the term:
138 (a) “Adverse action” means the discharge, suspension,
139 transfer, or demotion of an employee; the withholding of wages,
140 bonuses, benefits, or workable hours; filing, or threatening to
141 file, a false report with a government agency or engaging in
142 unfair immigration-related practices; or any other adverse
143 action taken against an employee within the terms and conditions
144 of employment by an employer.
145 (b) “Client employer” means a business entity, regardless
146 of its form, that obtains or is provided employees to perform
147 labor within its usual course of business from a labor
148 contractor. The term does not include:
149 1. A business entity with a workforce of 25 or fewer
150 employees, including employees hired directly by the client
151 employer and those obtained from or provided by a labor
152 contractor.
153 2. A business entity with a workforce of 5 or fewer
154 employees supplied by a labor contractor to the client employer
155 at any given time.
156 3. The state or a political subdivision of the state.
157 (c) “Department” means the Department of Labor as created
158 in s. 20.71.
159 (d) “Employee” has the same meaning as established under
160 the federal Fair Labor Standards Act and its implementing
161 regulations in effect on July 1, 2022.
162 (e) “Employer” has the same meaning as established under
163 the federal Fair Labor Standards Act and its implementing
164 regulations in effect on July 1, 2022.
165 (f) “Judgment debtor” means each person who is liable on a
166 judgment or order to pay a sum of money which remains
167 unsatisfied.
168 (g) “Labor contractor” means a person or entity that
169 supplies, with or without a contract, a client employer with
170 employees to perform labor within the client employer’s usual
171 course of business. The term does not include a bona fide
172 nonprofit, community-based organization that provides services
173 to employees or a labor organization or an apprenticeship
174 program operating under a collective bargaining agreement.
175 (h) “Usual course of business” means the regular and
176 customary work of a business performed within or upon the
177 premises or worksite of the client employer.
178 (4)(3) Effective May 2, 2005, employers shall pay employees
179 a minimum wage at an hourly rate of $6.15 for all hours worked
180 in Florida. Only those individuals entitled to receive the
181 federal minimum wage under the federal Fair Labor Standards Act
182 and its implementing regulations shall be eligible to receive
183 the state minimum wage under pursuant to s. 24, Art. X of the
184 State Constitution and this section. Sections 213 and 214 The
185 provisions of ss. 213 and 214 of the federal Fair Labor
186 Standards Act, as interpreted by applicable federal regulations
187 and implemented by the Secretary of Labor, are incorporated
188 herein.
189 (5)(a)(4)(a) Beginning September 30, 2005, and annually on
190 September 30 thereafter, the department of Economic Opportunity
191 shall calculate an adjusted state minimum wage rate by
192 increasing the state minimum wage by the rate of inflation for
193 the 12 months prior to September 1. In calculating the adjusted
194 state minimum wage, the department of Economic Opportunity shall
195 use the Consumer Price Index for Urban Wage Earners and Clerical
196 Workers, not seasonally adjusted, for the South Region or a
197 successor index as calculated by the United States Department of
198 Labor. Each adjusted state minimum wage rate shall take effect
199 on the following January 1, with the initial adjusted minimum
200 wage rate to take effect on January 1, 2006.
201 (b) The Department of Revenue and the department of
202 Economic Opportunity shall annually publish the amount of the
203 adjusted state minimum wage and the effective date. Publication
204 shall occur by posting the adjusted state minimum wage rate and
205 the effective date on the Internet home pages of the department
206 of Economic Opportunity and the Department of Revenue by October
207 15 of each year. In addition, to the extent funded in the
208 General Appropriations Act, the department of Economic
209 Opportunity shall provide written notice of the adjusted rate
210 and the effective date of the adjusted state minimum wage to all
211 employers registered in the most current reemployment assistance
212 database. Such notice shall be mailed by November 15 of each
213 year using the addresses included in the database. Employers are
214 responsible for maintaining current address information in the
215 reemployment assistance database. The department of Economic
216 Opportunity is not responsible for failure to provide notice due
217 to incorrect or incomplete address information in the database.
218 The department of Economic Opportunity shall provide the
219 Department of Revenue with the adjusted state minimum wage rate
220 information and effective date in a timely manner.
221 (6)(a)(5) It is shall be unlawful for an employer or any
222 other party to discriminate in any manner or take adverse action
223 against any person in retaliation for exercising rights
224 protected under pursuant to s. 24, Art. X of the State
225 Constitution or this section.
226 (b) Rights protected under s. 24, Art. X of the State
227 Constitution and this section include, but are not limited to:,
228 1. The right to file a complaint or inform any person of
229 his or her potential rights under pursuant to s. 24, Art. X of
230 the State Constitution or this section and to assist such person
231 him or her in asserting his or her such rights.
232 2. The right to inform a person’s employer, union or other
233 similar organization, legal counsel, or any other person about
234 an alleged violation of s. 24, Art. X of the State Constitution
235 or this section.
236 3. The right to file a complaint with the department or
237 file a civil action for an alleged violation of s. 24, Art. X of
238 the State Constitution or this section.
239 4. The right to cooperate with any investigation conducted
240 under this section and to testify in any proceeding or action
241 brought under this section.
242 5. The right to refuse to participate in an activity that
243 violates city, state, or federal law.
244 6. The right to oppose any policy, practice, or act that
245 violates s. 24, Art. X of the State Constitution or this
246 section.
247 (c) There is a rebuttable presumption that an employer has
248 violated s. 24, Art. X of the State Constitution or this section
249 if the employer takes adverse action against an employee within
250 90 days after the employee exercises a right under paragraph
251 (b). If an employee is a seasonal worker and his or her work
252 ended before the end of the 90-day period, the rebuttable
253 presumption applies if the employer fails to rehire the seasonal
254 worker in the same position at the next opportunity. The
255 rebuttable presumption may be overcome by clear and convincing
256 evidence.
257 (d) The protections provided under this section apply to
258 any employee who alleges a violation of s. 24, Art. X of the
259 State Constitution or this section in good faith. Any complaint
260 or other communication by an employee alleging a violation of s.
261 24, Art. X of the State Constitution or this section triggers
262 the protections under this section even if the complaint or
263 communication does not specifically reference this section.
264 (e) An employee who believes he or she has been
265 discriminated or retaliated against for exercising a right under
266 s. 24, Art. X of the State Constitution or this section may file
267 a complaint with the department or a civil action within 4 years
268 after the alleged violation or, in the case of a willful
269 violation, within 5 years after the alleged violation.
270 (7) An employer has the burden of proving that a person is
271 an independent contractor and not an employee. A person who
272 receives remuneration for services provided is considered an
273 employee unless the employer proves all of the following:
274 (a) The person is free from control or direction by the
275 employer over the performance of such service.
276 (b) The service provided by the person is outside the usual
277 course of business of the employer.
278 (c) The person is customarily engaged in an independently
279 established trade, occupation, profession, or business.
280 (8) A person or entity may not enter into a contract or
281 agreement with an independent contractor for labor or services
282 if the person or entity knows or should know that the contract
283 or agreement does not include funds sufficient to allow the
284 independent contractor to comply with all applicable local,
285 state, and federal laws or regulations governing the labor or
286 servi