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How to Defuse
Florida’s
9t Laws
Most Critical
Employment Laws
NIBM
N AT I O N A L I N S T I T U T E O F B U S I N E S S M A N A G E M E N T
PDFFL1
AUTHOR
Anniken Davenport, Esq.
EDITOR
Kathy Shipp
EDITORIAL DIRECTOR
Patrick DiDomenico
MARKETING DIRECTOR
Linda Smith
PUBLISHER
Phillip A. Ash
© 2007, National Institute of Business Management, 7600A Leesburg Pike, West Building, Suite 300,
Falls Church, VA 22043-2004. Phone: (800) 543-2055. All rights reserved. No part of this special report
may be reproduced in any form or by any means without written permission from the publisher. Printed
in U.S.A.
The information presented in this special report is not legal advice. This publication is designed to
provide accurate and authoritative information on Florida employment law, but it is sold with the
understanding that the publisher and authors are not engaged in rendering legal, accounting or other
professional advice. If legal advice or other expert assistance is needed, the services of a competent professional should be sought. Legal cases turn on the facts of each case, and an attorney well versed in the
unique facts of your case and the law is best qualified to assist you.
Table of Contents
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. The Florida Unemployment Compensation Law . . . . . . . . . . . . . . . . . . . . . 2
2. The Florida Workers’ Compensation Law . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. The Florida Civil Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. The Florida Minimum Wage Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. The Florida Workforce Investment Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. The Florida Child Labor Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7. The Florida Clean Indoor Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Local Ordinances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Common-Law Protections for Employees . . . . . . . . . . . . . . . . . . . . . . . . . 11
Online Resources: Florida Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . 12
Florida’s 9 Most Critical Employment Laws
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Executive Summary
s a Florida employer, you don’t have to comply with just federal employment laws, such
as the Civil Rights Act, OSHA and the Fair Labor Standards Act. You must also follow
state laws on everything from workers’ compensation to jury duty.
Several cities and towns also get in on the act. Each wants to control some aspect of
how you run your business and treat your employees. For example, some municipalities regulate how much you must pay employees above the federal and state minimum wage; others
make it illegal to discriminate against employees and applicants based on their sexual orientation.
Running afoul of any of these government units can cost you time and money. Several
laws even impose personal liability on supervisors and managers who violate their mandates.
A few scenarios show how your organization could easily trip over state and local laws:
A
•
Opening a branch location in Orlando? If you do work for the city, be sure to comply
with its living-wage ordinance.
•
Making a deduction from an employee’s paycheck for damages or shortages? Better
brush up on how to get your money back before you withhold the value of the cell
phone he lost.
•
Require employees to wear uniforms at work? Don’t even think about charging them
for the clothing unless they can wear it on the street as casual attire.
•
Want to pay employees by check? Make sure the bank on which the check is drawn
will cash it for the full amount even if the employee has no account there.
•
An employee quit without notice? Make sure you figure out her commissions and other
incentive pay before the pay period ends even if those payments wouldn’t be due until
much later.
These and other Florida laws give employees rights far beyond anything mandated by
the federal government, the EEOC and the U.S. Labor Department. But rest assured, you
can comply with Florida’s employment laws without driving yourself insane or your company out of business. Knowledge is power.
This special report will quickly bring you up to speed on the top Florida employment
laws and provide the basic framework for handling employees in the Sunshine State.
Meanwhile, your subscription to Florida Employment Law will keep you updated on the latest developments, court cases and new laws that affect your role as HR professional, supervisor or business owner. We’ll provide the specialized information you need, including the
latest on immigration reform, which will disproportionately affect Florida employers.
If this special report enables you to spot a problem before it’s too late, you will have
done yourself and your organization a huge favor. Too often, Florida employers land in trouble because they’re unaware of a state law or local ordinance regulating some aspect of their
business.
© 2007 National Institute of Business Management
www.TheHRSpecialist.com/FL
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National Institute of Business Management
1. The Florida Unemployment Compensation Law
lorida’s unemployment compensation
law, like that of many other states, provides temporary payments to employees
who lose their jobs through no fault of their
own. The program draws from a public policy that assumes “unemployment is a serious menace to the health, morals and welfare” of the citizens of Florida and is aimed
at lightening the job-loss burden for workers and their families.
The Florida Unemployment Compensation Law is complex and in some
cases holds employers liable for unemployment insurance (UI) payments even
when former employees weren’t fired but
quit their jobs.
The law requires employers to post
workplace notices on unemployment benefits,
rights and claims. (You can obtain notices as
well as all required employer forms from the
Florida Agency for Workforce Innovation at
www.floridajobs.org/.)
Employees who are eligible for unemployment payments are entitled to 50 percent of their average weekly wages, up to a
maximum of $275 per week, and can ordinarily collect payments for up to 26 weeks.
Employees who find part-time work while
on unemployment may still be eligible;
however, their payments will be reduced
dollar for dollar once they earn at least eight
times the federal minimum wage ($5.15 per
hour).
Not every employee who loses his job
can expect to collect unemployment. As a
general rule, former employees are eligible
for unemployment compensation when
they’re not responsible for their dismissal.
In other words, unless a company fired
them for misconduct, they’re probably eligible for benefits.
When you terminate an employee, the
burden of proof is on you. That may sound
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© 2007 National Institute of Business Management
simple, but it isn’t. Be prepared to prove
that you fired the former employee for a
solid reason (for cause), such as stealing,
cheating, harassing or discriminating
against another employee, failing a drug test
or ignoring safety precautions.
Employees who quit may still be eligible for benefits, but the burden of proof is
on them to show that they resigned “for
good cause” connected with their employment.
As the employer, you will receive
notice when the Agency for Workforce
Innovation determines a former employee is
eligible for UI benefits. You have the right
to appeal the decision. Make sure you postmark your response within 20 days of the
date you received the notice or 20 days after
the agency mailed it. These are tight deadlines so don’t delay.
Here are some common tricky situations in which employees who quit or were
fired can sometimes be eligible for benefits
and sometimes not.
Misconduct. Employees who are fired
for misconduct (violating a company rule or
policy) aren’t entitled to benefits right away.
But their disqualification lasts for only
about six weeks (the week of their discharge plus the next five weeks). After that
period, they can start collecting benefits.
Trailing spouse. In this day and age of
dual-career families, a husband or wife may
quit a job when the spouse accepts a position in another city or state. While some
states do allow unemployment benefits for a
trailing spouse, Florida doesn’t consider this
a good cause connected with work.
Therefore, the trailing spouse wouldn’t be
eligible to collect unemployment. The only
exception: when a spouse on active duty in
the military is moving under orders.
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Florida’s 9 Most Critical Employment Laws
Retirement pay. Employees who are
eligible for social security retirement benefits can still collect unemployment. If they
begin collecting on a company-sponsored
retirement plan, however, their weekly benefits may be reduced:
• If the company and the employee both
contributed to the retirement plan,
weekly unemployment benefits would
be reduced by 50 percent.
•
•
If the employer contributed 100 percent
to the retirement plan (such as a
defined benefit plan), the employee
couldn’t collect unemployment.
If the employee contributed 100 percent to the plan (such as a companysponsored 401(k) with no employer
match), he would be eligible for the
entire weekly UI payment.
Visa holders. Foreign citizens working
in the United States on H1-B visas aren’t
entitled to unemployment benefits if their
employers permanently terminate them.
That’s because H1-B visa holders are
authorized to work for only one employer
and thus wouldn’t be ready, willing and able
to seek other employment. But if the same
workers are only temporarily laid off and
have a specific return date, they can collect
unemployment.
Ready and able to work. To be eligible for UI benefits, claimants must be physically and mentally capable of working. So,
if someone on unemployment is hurt in a
car accident, for example, her benefits will
stop until she’s been cleared to return to
work.
Elder care, child care and transportation. Claimants who must care for
family members or don’t have transportation to and from work may not be eligible
for benefits. Because they have time commitments and transportation problems that
© 2007 National Institute of Business Management
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prevent them from accepting a job immediately, they’re not ready and able to work.
Active job search. To receive benefits,
claimants must actively seek work: i.e., contact at least three employers per week about
job openings. Some claimants may be asked
to keep records of their attempts to find a job.
Refusing a job offer. Claimants who
refuse to accept a job offer may lose their
benefits. They may also have to accept less
money or a different type of job if they’ve
been unemployed for a long time.
Job transfer. If an employer relocates
a business or asks an employee to transfer
to another location as a condition of staying
employed, the employee may quit and be
able to collect unemployment. Each case is
considered on an individual basis and
depends on whether the move will create an
undue hardship on the employee.
Representing your organization
Employers should carefully consider
whether they want to contest an unemployment claim and, ideally, consult an employment-law expert about the best course of
action. This is true especially if you suspect
the employee will file a discrimination lawsuit against your company. What you say
about your organization’s actions can come
back to haunt you, especially if the former
employee’s attorney uses the relatively lowstakes unemployment setting to fish for
information for a lawsuit against you. Your
stated reason for firing an employee may
bind you in a later, high-stakes lawsuit.
For example, if you testify that you
fired an employee because of her frequent
absences, the records you produce could be
used later to show you violated the Family
and Medical Leave Act (FMLA) by counting her sick-child call-off as an unexcused
absence.
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National Institute of Business Management
That’s why it’s best to run your expected
testimony and documentary evidence by an
attorney before representing your organization
at a hearing. You don’t want to say anything
that could turn into ammunition against you
later, or be silent about something that will
prevent you from putting on evidence later.
Sometimes, it may be best to have an
© 2007 National Institute of Business Management
attorney handle the case. Other times, if you
and your attorney think the former employee
will likely file a state or federal discrimination lawsuit, it may be better to forgo a hearing altogether to avoid showing your cards
too early. Not contesting an unemployment
claim won’t prevent you later from showing
you fired an employee for a legitimate reason.
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Florida’s 9 Most Critical Employment Laws
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2. The Florida Workers’ Compensation Law
he Florida workers’ compensation system
protects employees who are injured on
the job by replacing lost wages while they
recover. The system works as a no-fault
guarantee. The law entitles employees who
can show they were hurt while working to
a portion of their earnings and paid medical
care for their injuries. They needn’t prove
that their employer was negligent. In exchange for the no-fault guarantee, the law
doesn’t permit workers to sue for negligence and collect far more than just lost
wages and medical payments.
The Florida Department of Financial
Services administers the law through its
Division of Workers’ Compensation (www
.fldfs.com/wc/).
In 2005, Florida’s legislature modified
the workers’ compensation system. Under
the new system, workers’ compensation carriers must pay compensation or benefits
only when the workplace injury is more
than 50 percent responsible for the worker’s
condition. This determination is made based
on medical evidence.
Some employees aren’t eligible for
workers’ comp payments. For example,
employees can’t collect benefits if they:
supplied safety equipment (benefits
reduced by 25 percent).
T
•
Are injured while under the influence
of alcohol or illegal drugs, or refuse to
submit to a drug test following the
accident.
•
If the injured worker is a professional
athlete (benefits reduced by 50 percent).
In the construction industry, contractors
are responsible for making sure their subcontractors carry workers’ comp insurance.
Contractors who shave dollars off their bid
by skipping workers’ comp coverage to win
a bid may be held liable to losing bidders
who played by the rules.
In addition, Florida’s law severely
restricts claims for mental or nervous conditions. Workers’ comp won’t pay unless “an
accompanying physical injury” requires
medical treatment.
The state law works in concert with
other laws, such as the Americans with
Disabilities Act (ADA). Employers with at
least 15 employees must make reasonable
accommodations for workers who can’t perform their jobs’ essential functions.
Virtually all Florida businesses must
carry workers’ comp insurance. Even sole
proprietors who employ another person
must provide coverage or be approved for
self-insurance.
Tips for reducing workers’ comp costs
•
Are injured while attempting to harm
themselves or unlawfully injure another
person.
•
Commit fraud with the intent to collect
benefits.
One way to reduce your workers’ comp
costs is to encourage employees to return to
work as soon as they’re able. You can, for
example, make available light-duty positions for injured employees who may not be
ready to return to more demanding jobs.
Work with your insurance carrier to develop
a light-duty program.
In some circumstances, a worker won’t
receive full benefits:
ADA, FMLA and workers’ compensation
If the injured worker had knowingly
refused to wear proper employer-
Employees injured at work may also be disabled under the ADA or the Florida Civil
© 2007 National Institute of Business Management
www.TheHRSpecialist.com/FL
•
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National Institute of Business Management
Rights Act and have a serious medical condition under the FMLA. So HR professionals should make sure to coordinate any
unpaid leave and reasonable accommodations, such as light-duty work or intermittent leave, with the insurance carrier. It’s
important to coordinate those claims:
Nothing will sink a case faster than evidence that an employer acquiesced to a
workers’ comp claim but refused to allow
an FMLA claim for the same condition.
3. The Florida Civil Rights Act
he Florida Civil Rights Act (FCRA) prohibits discrimination or segregation in
employment and access to places of public
accommodation because of race, color, age,
national origin, sex, handicap, familial status or religion.
The law prohibits employers from discriminating against any member of the protected classes listed above in any job-related
action, including recruitment, interviewing,
hiring, promotions, discharge, compensation
and the terms, conditions and privileges of
employment.
The FCRA is the state version of the
federal Civil Rights Act, Age Discrimination in Employment Act, Equal Pay Act and
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© 2007 National Institute of Business Management
ADA all rolled into one. As under those
federal laws, the FCRA covers employers
with 15 or more employees.
The state law as well as the ADA
requires places of public accommodation to
make reasonable modifications to their policies, practices or procedures to ensure
access for people with disabilities.
Reasonable accommodations may include
providing auxiliary aides and making physical changes to ensure paths of travel.
The Florida Commission on Human
Relations (http://fchr.state.fl.us) administers the Civil Rights Act.
(For details on the main federal jobdiscrimination laws, go to www.eeoc.gov.)
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Florida’s 9 Most Critical Employment Laws
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4. The Florida Minimum Wage Act
ffective Jan. 1, 2006, the minimum wage
in Florida is $6.40 per hour ($1.25 higher
than the federal minimum). The Agency for
Workforce Innovation administers the wage
and hour law.
In 2004, a state constitutional amendment established Florida’s minimum wage.
Every year, the agency calculates the following year’s minimum wage based on the
rate of inflation for the year ending Sept. 1.
The new minimum wage, announced each
E
Sept. 30, takes effect the following Jan. 1.
The Florida Minimum Wage Act follows the federal Fair Labor Standards Act in
all respects except the minimum wage.
Specifically, exempt workers under the
FLSA are also exempt under the state law.
(For more information on the state law,
go to www.doh.state.fl.us/Environment
/community/fciaa/index.html. To review the
FLSA’s regulations, go to www.dol.gov/flsa.)
5. The Florida Workforce Investment Act
lorida’s Workforce Investment Act (WIA)
was designed as part of the welfare
reform movement of the ’90s. Like its federal counterpart, the Florida WIA provides
incentives and assistance to employers who
hire workers who had been long-term welfare recipients.
Florida’s WIA includes the state’s 1998
Untried Worker Placement and Employment
Incentive Act, which also provides incentives for Florida employers to hire difficultto-place workers. Since many of them suffer
from mental or physical disabilities, the
ADA may protect them as well.
Under the WIA, employers may receive
incentive payments from the state’s regional
work force boards for workers who maintain full-time employment for six months.
Employees hired under the program may be
subject to a maximum probationary period
of six months. (To locate the regional work
force board that serves your area, go to
www.workforceflorida.com/wages/wfi
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© 2007 National Institute of Business Management
/boards/index.htm.)
The law requires employers to provide
workers’ comp and unemployment compensation coverage for those workers. But
oftentimes, employers can offset those costs
by using federal tax credits and subsidies.
Receiving state WIA incentive funds doesn’t
affect employers’ federal tax incentives.
Employers may not displace other
employees to hire WIA workers. Once the
workers complete one year of employment,
employers receive no more incentives or
subsidies.
To keep their standing in the program,
employers must maintain a good record of
employing and developing hard-to-place
workers; otherwise, they risk being disqualified from the program.
The regional work force boards partner
with the state’s Agency for Workforce
Innovation (www.floridajobs.org/PDG/wia
.html) to administer the law.
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National Institute of Business Management
6. The Florida Child Labor Law
lorida’s child labor law prohibits employers from hiring minors under age 16
to work in hazardous jobs ranging from
operating industrial machinery and meatpacking equipment to even handling certain
dangerous animals.
Teens must be at least 18 years old to
work:
F
•
With explosives or radioactive materials or around toxic substances such as
pesticides
•
On scaffolding, roofs or ladders above
six feet
•
On an electric apparatus or wiring
•
In the mining industry and most meatpacking jobs
•
Operating any power-driven woodworking machine; hoisting apparatus;
metal-forming, punching or shearing
machines; bakery machines; paper
products and printing machines
•
In the manufacture of brick, tile or
other similar products
•
In wrecking or demolition; excavation
operations; logging or sawmilling; firefighting.
Minors under age 16 may not work
prior to 7 a.m. or past 7 p.m. on school
© 2007 National Institute of Business Management
nights. During holidays and summer vacations they may work until 9 p.m. They may
not work more 40 hours a week or eight
hours a day.
For minors under age 18, employers
may not schedule them to work before 6:30
a.m. or past 11 p.m. or for more than eight
hours a day prior to a school day. When
school’s in session, 16- and 17-year-olds
may not work more than 30 hours per week.
Minors under age 18 may not work more
than six consecutive days in one week.
They may not work more than four hours
continuously without a 30-minute lunch
break. (Any breaks shorter than 30 minutes
aren’t considered an interruption of continuous work.)
Exception: Summer camps run by nonprofits that employ workers ages 16 to 18
during June through September are exempt
from the law.
The Bureau of Child Labor in the
Department of Business and Professional
Regulation administers the law. For more
information, go to ww.state.fl.us/dbpr/reg
/childlabor.
(The federal Fair Labor Standards Act
also sets child labor rules. To review those
regulations, go to www.dol.gov/dol/topic
/youthlabor.)
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Florida’s 9 Most Critical Employment Laws
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7. The Florida Clean Indoor Air Act
he state recently amended the Florida Clean
Indoor Air Act to comply with the Florida
Health Initiative. The law prohibits smoking
in all enclosed indoor workplaces except:
T
•
Private residences or private clubs
•
Retail tobacco shops
•
Smoking-designated guest rooms in
hotels and motels
•
Stand-alone bars
•
Designated smoking rooms under the
control of the U.S. Bureau of Customs
and Homeland Security in airports
•
Facilities that conduct medical or scientific research on smoking cessation
The law defines an “enclosed indoor
workplace” as one predominantly or totally
bounded on all sides and above by physical
© 2007 National Institute of Business Management
barriers. (“Predominantly bounded” means
either the top barrier covers more than 50
percent of the roof space or physical barriers cover more than 50 percent of the sides.)
Under the clean indoor air act, employers may still provide designated smoking
rooms for employees. The law requires
employers to develop and implement policies that deal with violations and address
the consequences for employees who break
the smoke-free rule.
The Florida Department of Health and
the Florida Department of Business and
Professional Regulation enforce the law.
Fines range from $250 to $2,000 per violation, depending on the business size and the
number of previous violations. For more
information, go to www.doh.state.fl.us
/Environment/community/fciaa/index.html.
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National Institute of Business Management
8. Local Ordinances
ocal governments can (and sometimes
do) legislate what employers can and
can’t do within their jurisdictions. For
example, since the Florida Civil Rights Act
contains no protections against discrimination based on sexual preference, some local
governments have adopted ordinances to
address the issue:
Covered employers that don’t provide
health benefits must pay them 20 percent more than the hourly wage.
L
•
•
Orlando: All organizations with six or
more employees must comply with the
city’s anti-discrimination ordinance. It
prohibits discrimination on the basis of
sexual orientation, race, national origin,
religion, gender, disability and age.
Miami/Dade County: The county’s
human rights ordinance protects gays
and lesbians from discrimination in
employment, housing, credit and
accommodations. Courts have ruled,
however, that the ordinance doesn’t
grant them the right to sue; aggrieved
employees may seek only injunctive
relief.
Additionally, several municipalities
have living-wage laws that mandate higher
hourly pay than the state’s minimum wage
(currently $6.40 per hour):
•
Orlando: Workers employed by the
city or its contractors must earn $8.50
per hour and receive health benefits.
© 2007 National Institute of Business Management
•
Palm Beach County: Contractors
working on county construction contracts worth more than $100,000 must
pay their workers $9.73 per hour if they
offer health benefits, or $10.04 hourly
if they don’t provide health coverage.
•
Broward County: County employees
and contractors providing food preparation, security, maintenance, clerical
work, transportation, landscaping,
printing or reproduction services must
earn $9.57 per hour if they have health
coverage, and $10.82 per hour if they
don’t.
•
Miami Beach: The city and contractors
with contracts worth more than
$100,000 must pay their employees at
least $8.56 per hour if they offer health
coverage, or $9.81 hourly if they don’t
provide health benefits.
•
Miami/Dade County: County employees, contractors working on contracts in
excess of $100,000 and the airport’s
ground service personnel must earn
$9.81 per hour with health coverage, or
$11.82 hourly if they don’t receive
health benefits.
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Florida’s 9 Most Critical Employment Laws
11
9. Common-Law Protections for Employees
n addition to local and state laws, Florida
employers must abide by common-law
protections afforded to employees: most
notably, the right to be free from libel, slander and intentional infliction of emotional
distress.
Most often, employers land in trouble
when a supervisor makes a stupid comment
or tries to make an example of an employee.
Take, for instance, an employee suspected by a manager of stealing from the
petty cash. If that manager calls a staff
meeting, announces the “theft” and points
out the “guilty” party, the manager better be
sure he or she has the facts straight. If not,
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© 2007 National Institute of Business Management
the employee may be able to win a suit for
defamation and intentional infliction of
emotional distress under Florida common
law. What’s worse, the manager can be held
personally liable, too.
Another area in which to exercise
extreme caution: giving job references. Be
sure that any information you give can be
verified. Ask if the applicant signed a
release and consent form, allowing you to
discuss his or her work performance. Obtain
a copy. When in doubt, stick with the
basics. Name, rank and position held are
unlikely to get you into trouble.
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Online Resources: Florida Employment Law
Agency for Workforce Innovation
Minimum wage
www.floridajobs.org/
(800) 342-3450
Agency for Workforce Innovation
www.floridajobs.org/resources/fl_min_wage
.html
(888) 717-5577
Web sites:
Unemployment compensation
Agency for Workforce Innovation
www.floridajobs.org/unemployment/index.
html
(866) 778-7356
To report suspected fraud, go to www
.floridajobs.org/Benefits/BPC/fraud.asp.
To file claims appeals, go to www.floridajobs
.org/appeal
Workers’ compensation
Child labor rules
Bureau of Child Labor
Division of Regulation
Department of Business and Professional
Regulation
www.state.fl.us/dbpr/reg/childlabor
(850) 488-3131
Clean indoor air (smoke-free workplaces)
Florida Department of Health
www.doh.state.fl.us/Environment
/community/fciaa/index.html
Division of Workers’ Compensation
Florida Department of Financial Services
www.fldfs.com/wc/
(800) 337-3742
(850) 413-3100
Agency for Workforce Innovation
www.floridajobs.org/alc/index.html
Civil rights
Florida Commission on Human Relations
http://fchr.state.fl.us/
(850) 488-7082
Work force investment
Agency for Workforce Innovation
www.floridajobs.org/PDG/wia.html
© 2007 National Institute of Business Management
Alien labor certification
(850) 921-3299
Regional work force boards
The Agency for Workforce Innovation partners with 24 regional work force boards to
provide assistance to employers and jobseekers. To find the nearest board that serves
your location, go to www.workforceflorida
.com/wages/wfi/boards/index.htm
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