HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 411 Evidentiary Standards for Actions Arising During an Emergency
SPONSOR(S): Melo
TIED BILLS: IDEN./SIM. BILLS: SB 542
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 14 Y, 2 N Brascomb Jones
2) Pandemics & Public Emergencies Committee 18 Y, 0 N Smith Williamson
3) Judiciary Committee 20 Y, 0 N Brascomb Kramer
SUMMARY ANALYSIS
An employee may have a civil cause of action against his or her employer for claims related to workers’
compensation, retaliatory personnel actions, state minimum wage, labor pool violations, and devices used in
payment for labor. An employee may also have a civil cause of action against his or her employer to recover
lost wages, salary, employment benefits, or other compensation. In each instance, the employee must prove
the existence of an employee-employer relationship before the employer may be held liable. Further, the
Department of Financial Services may impose civil penalties against an employer for violating unclaimed
wages laws.
HB 411 specifies that a plaintiff may not use the following actions of a business as evidence against the
business in specified civil causes of action if the business takes such actions during a public health emergency
or other declared state of emergency:
Providing financial assistance to previously engaged individuals who are unable to work because of
health and safety concerns.
Directly providing benefits related to an engaged individual's health and safety, including medical or
cleaning supplies, personal protective equipment, health checks, or medical testing.
Providing training or information related to an engaged individual's health and safety.
Taking any action, including action required or suggested by any federal, state, or local law, ordinance,
order, or directive intended to protect public health and safety.
Thus, the bill keeps any of the aforementioned actions from being considered as evidence that there is an
employer-employee relationship between a business and a plaintiff in specified civil actions. Specifically, the
bill applies to certain civil actions relating to workers’ compensation, retaliatory personnel actions, state
minimum wage, labor pool violations, devices used in payment for labor, and unclaimed wages. The bill also
applies to civil actions to recover lost wages, salary, employment benefits, or other compensation.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
An employee may have a civil cause of action against his or her employer for claims related to workers’
compensation (in specified instances), retaliatory personnel actions, state minimum wage, labor pool
violations, and devices used in payment for labor. An employee may also have a civil cause of action
against his or her employer to recover lost wages, salary, employment benefits, or other compensation.
In each instance, the employee has the burden to prove the existence of the employee-employer
relationship before the employer may be held liable. Further, the Department of Financial Services may
impose civil penalties against an employer for violating unclaimed wages laws.
Workers’ Compensation
Each employer and employee is bound by Florida’s Workers’ Compensation Law. 1 The employer must
pay compensation or furnish benefits required by the Workers’ Compensation Law if the employee
suffers an accidental compensable injury or death arising out of work performed in the course and
scope of employment.2 The injury and any resulting manifestations or disability must be established to
a reasonable degree of medical certainty, based on objective relevant medical findings, and the
accidental compensable injury must be the major contributing cause of any resulting injuries. 3
Normally, an employee may not sue an employer for claims arising under the Workers’ Compensation
Law, as such claims are handled through an administrative process instead of through the court
system.4 However, an employee has a civil cause of action against his or her employer if the employer:
Failed to carry sufficient workers’ compensation coverage;
Deliberately intended to injure the employee; or
Engaged in conduct that he or she knew was virtually certain to result in the employee’s injury
or death in certain situations.5
Retaliatory Personnel Actions
An employer may not take any retaliatory personnel action6 against an employee because the
employee has:
Disclosed or threatened to disclose, to any appropriate governmental agency, under oath, in
writing, any activity, policy, or practice of the employer that violates a law, rule, or regulation;
Provided information to, or testified before, any appropriate governmental agency, person, or
entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or
regulation by the employer; or
Objected to, or refused to participate in, any activity, policy, or practice of the employer which is
in violation of a law, rule, or regulation.7
An employee who is the object of a retaliatory personnel action has a civil cause of action against his or
her employer for the following relief:
An injunction restraining a continued violation;
The employee’s reinstatement to the same position held before the retaliatory personnel action
or to an equivalent position;
1 Ss. 440.03 and 440.10, F.S.
2 S. 440.09(1), F.S.
3 Id.
4 See ch. 440, F.S.; Deen v. Quantum Resources, Inc., 750 So. 2d 616 (Fla. 1999).
5 S. 440.11, F.S.
6 “Retaliatory personnel action” means the discharge, suspension, or demotion by an employer of an employee or any other advers e
employment action taken by an employer against an emplo yee in the terms and conditions of employment. S. 448.101(5), F.S.
7 S. 448.102, F.S.
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Reinstatement of the employee’s full fringe benefits and seniority rights;
Compensation for lost wages, benefits, and other remuneration; and
Any other compensatory damages allowable at law. 8
State Minimum Wage
Florida’s Constitution requires an employer to pay his or her employees a minimum wage. 9 An
employee not paid the minimum wage may bring a civil action against his or her employer to recover
the full amount of back wages unlawfully withheld, plus the same amount as liquidated damages.10 An
employee bringing such an action may also be entitled to legal or equitable relief, including employment
reinstatement or injunctive relief.11
Labor Pool Violations
No labor pool12 may:
Charge a day laborer:13
o For safety equipment, clothing, accessories, or any other items required by the nature of
the work;
o More than a reasonable amount to transport a worker to or from the designated worksite;
or
o For directly or indirectly cashing a worker’s check. 14
Request or require that any day laborer sign any document waiving statutory protections.15
Charge more than the actual cost of providing lunch, if the labor pool provides lunch at the
worksite.16
Restrict a day laborer’s right to accept a permanent position with a third-party user to whom the
laborer is referred for temporary work.17
A labor pool must:
If operating a labor hall, provide restroom facilities, drinking water, and sufficient seating for a
worker waiting at the hall for a job assignment.18
Select one of the following methods to pay a day laborer for work performed:
o Cash;
o Commonly accepted negotiable instruments that are payable in cash, on demand at a
financial institution, and without discounts;
o Payroll debit card; or
o Electronic fund transfer.19
Notify a day laborer of the payment method that the labor pool intends to use and the day
laborer’s options to elect a different payment method. 20
8 S. 448.103, F.S.
9 Art. X, s. 24, Fla. Const. Effective September 30, 2021, the existing state minimum wage increased to $10.00 per hour, and will
increase each September 30 thereafter by $1.00 per hour until the minimum wage reaches $15.00 per hour on September 30, 2026.
On September 30, 2027, and each subsequent September 30, the State Agency for Workforce Innovation must calculate an adjusted
minimum wage rate in the manner specified in the State Constitution.
10 Id.
11 Id.
12 “Labor pool” means a business entity that operates a labor hall by one or more of the following methods: contracting with thi rd-party
users to supply day laborers on a temporary basis; hiring, employing, recruiting, or contracting with workers to fulfill these temporary
labor contracts for day labor; or fulfilling any contracts for day labor in accordance with this subsection, even if the enti ty also conducts
other business. S. 448.22(1), F.S.
13 “Day labor” means temporary labor or employment that is occas ional or irregular for which the worker is employed for not longer than
the time period required to complete the temporary assignment for which the individual worker was hired, although an individu al may be
eligible for additional temporary assignments when available. S. 448.22(2), F.S.
14 S. 448.24(1), F.S.
15 S. 448.24(3), F.S.
16 S. 448.24(4), F.S.
17 S. 448.24(6), F.S.
18 S. 448.24(5), F.S.
19 S. 448.24(2), F.S.
20 Id.
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If selecting to pay a day laborer by payroll debit card:
o Offer the day laborer the option to elect payment by electronic fund transfer; and
o Provide the day laborer with a list, including the address, of a nearby business that does
not charge a fee to withdraw the debit card’s contents. 21
Compensate day laborers at or above the minimum wage. 22
Comply with the requirements of ch. 440, F.S.23
Insure any motor vehicle owned or operated by the labor pool and used for worker
transportation.24
Furnish each worker with a written itemized statement showing in detail each wage deduction. 25
Give each worker an annual earnings statement summary. 26
A worker harmed by a labor pool violation may bring a civil action against the labor pool to recover
actual and consequential damages, or $1,000, whichever is greater, for each violation. 27
Devices Issued in Payment for Labor
Any order, check, draft, note, memorandum, payroll debit card, or other acknowledgement of
indebtedness for wages due must be negotiable and payable in cash, on demand, without discount, at
some established place of business in Florida.28 The business’s name and address must appear on the
instrument or in the payroll debit card issuing materials. At the time of its issuance, and for at least 30
days thereafter, the maker or drawer must have sufficient funds or credit, arrangement, or
understanding with the drawee for its payment.29
Any person issuing a coupon, punch-out, ticket, token, or other device in lieu of cash as payment for
labor is:
Liable for the full face value thereof in current legal tender on or after the 30 th day after the date
of issuance;
Liable for payment in legal tender, notwithstanding any contrary stipulation or provision, which
may be therein contained; and
Subject to suit brought thereon in any court of competent jurisdiction, upon failure to comply with
the requirements immediately above, wherein the legal holder’s recovery must include the full
face value of the device, with legal interest from the date of demand. 30
Further, no employer may terminate an employee’s employment solely for refusing to authorize the
direct deposit of wages.31 An employee may bring a civil action for equitable relief against any employer
violating this provision.32
Unclaimed Wages
Unpaid wages owing in the ordinary course of the holder’s business that have not been claimed by the
owner for more than one year after becoming payable are presumed unclaimed. 33 Every holder of
unclaimed wages must report the unclaimed wages to the Department of Financial Services (“DFS”) by
May 1 of each year and must simultaneously pay to DFS all unclaimed wages required to be reported. 34
Employers violating these requirements face DFS-imposed penalties.35
21 Id.
22
Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 S. 448.25, F.S.
28 S. 532.01, F.S.
29 Id.
30 S. 532.02, F.S.
31 S. 532.04(2), F.S.
32 S. 532.04(3), F.S.
33 S. 717.115, F.S.
34 Ss. 717.117 and 717.119, F.S.
35 Id.; Ch. 69G-20, F.A.C.
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Effect of Proposed Changes
HB 411 creates s. 448.111, F.S., specifying that an engaged individual 36 may not use the following
actions of a business as evidence against the business in specified civil causes of action if the business
takes such actions during a public health emergency37 or other declared state of emergency:38
Providing financial assistance to previously engaged individuals who are unable to work
because of health and safety concerns.
Directly providing benefits related to an engaged individual’s health and safety, including
medical or cleaning supplies, personal protective equipment, health checks, or medical testing.
Providing training or information related to an engaged individual’s health and safety.
Taking any action, including action required or suggested by any federal, state, or local law,
ordinance, order, or directive intended to protect public health and safety.
Thus, the bill keeps any of the aforementioned actions from being considered as evidence that there is
an employer-employee relationship between a business and a plaintiff in specified civil actions.
Specifically, the bill applies to certain civil actions relating to workers’ compensation, retaliatory
personnel actions, state minimum wage, labor pool violations, devices used in payment for labor, and
unclaimed wages. The bill also applies to civil actions to recover lost wages, salary, employment
benefits, or other compensation.
The bill provides an effective date of July 1, 2022.
B. SECTION DIRECTORY:
Section 1: Creates s. 448.111, F.S., relating to evidentiary standards for actions of a business during
an emergency.
Section 2: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill protects a business taking specified action from being deemed a plaintiff’s employer based
solely on evidence of such action, allowing the business to prioritize the health and safety of persons
36 The bill defines “engaged individual” to mean an individual who provides a good or service to a business or on behalf of a business
who is remunerated for the good or service regardless of the individual’s classification as an employee or independent contra ctor.
37 The State Health Officer is responsible for declaring a public health emergency. S. 381.00315(1), F.S.
38 The Governor may declare a state of emergency under the emergency powers delegated to him in s. 252.36, F.S.
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with whom it has dealings in any capacity without the risk of incurring civil liability for specified
employment-related claims. This may have an indeterminate positive impact on the private sector.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:<