Florida Senate - 2021 SB 1726 By Senator Torres 15-01862-21 20211726__ Page 1 of 23 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1

An act relating to the Department of Labor; creating 2 s. 20.71, F.S.; creating the Department of Labor, 3 headed by the Secretary of Labor, who is appointed by 4 the Governor and confirmed by the Senate; authorizing 5 the secretary to establish divisions and regional 6 offices of the department; requiring that the 7 headquarters of the department be located in 8 Tallahassee; providing the purpose of the department; 9 authorizing the department to adopt rules; amending s. 10 448.109, F.S.; conforming provisions to changes made 11 by the act; amending s. 448.110, F.S.; designating the 12 Department of Labor as the state Agency for Workforce 13 Innovation for purposes of implementing s. 24, Art.

X 14 of the State Constitution; defining terms; revising 15 the protected rights of an employee; creating a 16 rebuttable presumption and burden of proof for an 17 employer; revising the process for filing a complaint 18 or a civil action for a violation of protected rights; 19 providing that employers have the burden of proving 20 that the complainant is not an employee; providing a 21 presumption regarding employment status in the absence 22 by proof to the contrary; authorizing the department 23 to conduct investigations, issue citations, enforce 24 and collect judgments by certain means, and enter into 25 agreements with other agencies to assist it with 26 administration and enforcement; subject to the 27 appropriation of funds for that purpose, requiring the 28 department to establish and maintain an outreach and 29

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 2 of 23 CODING: Words stricken are deletions; words underlined are additions. education partnership program for a specified purpose; 30 specifying the powers of the department in connection 31 with its powers and duties; providing for injunctive 32 relief under certain circumstances; providing a 33 process for review of a citation, levy, or stop-order 34 issued by the department; providing penalties, 35 including criminal penalties; tolling the statute of 36 limitations during an investigation; providing 37 liability; requiring that certain records be 38 maintained for a specified length of time; conforming 39 provisions to changes made by the act; providing an 40 effective date. 41 42 Be It Enacted by the Legislature of the State of Florida: 43 44

Section

Section 20.71, Florida Statutes, is created to 45 read: 46 20.71 Department of Labor; creation; powers and duties.— 47

(1) There is created the Department of Labor. 48

(2) The head of the department is the Secretary of Labor, 49 who shall be appointed by the Governor, subject to confirmation 50 by the Senate. The secretary shall serve at the pleasure of, and 51 report to, the Governor. 52

(3) The secretary may establish divisions within the 53 department and allocate various functions of the department 54 among such divisions. 55 (4)(

a) The headquarters of the department must be located 56 in Tallahassee. However, the department may establish regional 57 offices throughout this state as the secretary deems necessary 58

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 3 of 23 CODING: Words stricken are deletions; words underlined are additions. for the efficient operation of the department in accomplishing 59 its purpose. 60 (

b) The purpose of the department is to enforce s. 24, Art. 61 X of the State Constitution, s. 448.110, and any other law that 62 the department has enforcement authority over as designated by 63 the Legislature. 64

(5) The department may adopt rules as necessary to carry 65 out the functions and purposes of the department. 66

Section 2. Paragraph (

a) of subsection (3) of

section 67 448.109, Florida Statutes, is amended to read: 68 448.109 Notification of the state minimum wage.— 69 (3)(

a) Each year the Department of Labor Department of 70 Economic Opportunity shall, on or before December 1, create and 71 make available to employers a poster in English and in Spanish 72 which reads substantially as follows: 73 74 NOTICE TO EMPLOYEES 75 76 The Florida minimum wage is $ ...(amount)... per hour, with a 77 minimum wage of at least $ ...(amount)... per hour for tipped 78 employees, in addition to tips, for January 1, ...(year)..., 79 through December 31, ...(year).... 80 81 The rate of the minimum wage is recalculated yearly on September 82 30, based on the Consumer Price Index.

Every year on January 1 83 the new Florida minimum wage takes effect. 84 85 An employer may not retaliate against an employee for exercising 86 his or her right to receive the minimum wage. Rights protected 87

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 4 of 23 CODING: Words stricken are deletions; words underlined are additions. by the State Constitution include the right to: 88 1. File a complaint about an employer’s alleged 89 noncompliance with lawful minimum wage requirements. 90 2. Inform any person about an employer’s alleged 91 noncompliance with lawful minimum wage requirements. 92 3. Inform any person of his or her potential rights under 93

Section 24,

Article X of the State Constitution and

section 94 448.110, Florida Statutes, and to assist him or her in 95 asserting such rights. 96 97 An employee who has not received the lawful minimum wage after 98 notifying his or her employer and giving the employer 15 days to 99 resolve any claims for unpaid wages may file a complaint with 100 the Department of Labor or bring a civil action in a court of 101 law against an employer to recover back wages plus damages and 102 attorney attorney’s fees. 103 104 An employer found liable for intentionally violating minimum 105 wage requirements is subject to a fine of $1,000 per violation, 106 payable to the state. 107 108 The Department of Labor Attorney General or other official 109 designated by the Legislature may bring a civil action to 110 enforce the minimum wage. 111 112 For details see

Section 24,

Article X of the State Constitution 113 and

section 448.110, Florida Statutes. 114

Section

Section 448.110, Florida Statutes, is amended to 115 read: 116

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 5 of 23 CODING: Words stricken are deletions; words underlined are additions. 448.110 State minimum wage; annual wage adjustment; 117 enforcement.— 118

(1) This

section may be cited as the “Florida Minimum Wage 119 Act.” 120

(2) The purpose of this

section is to provide measures 121 appropriate for the implementation of s. 24, Art. X of the State 122 Constitution, in accordance with authority granted to the 123 Legislature under pursuant to s. 24(f), Art. X of the State 124 Constitution. To implement s. 24, Art. X of the State 125 Constitution, the Department of Labor Department of Economic 126 Opportunity is designated as the state Agency for Workforce 127 Innovation. 128

(3) As used in this section, the term: 129 (a) “Adverse action” means the discharge, suspension, 130 transfer, or demotion of an employee; the withholding of wage, 131 bonuses, benefits, or workable hours; filing, or threatening to 132 file, a false report with a government agency or engaging in 133 unfair immigration-related practices; or any other adverse 134 action taken against an employee within the terms and conditions 135 of employment by an employer. 136 (b) “Client employer” means a business entity, regardless 137 of its form, which obtains or is supplied employees by a labor 138 contractor to perform labor within its usual course of business. 139 The term does not include: 140 1.

A business entity with a workforce of 25 or fewer 141 employees, including those hired directly by the client employer 142 and those obtained from or supplied by a labor contractor. 143 2. A business entity with a workforce of 5 or fewer 144 employees supplied by a labor contractor to the client employer 145

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 6 of 23 CODING: Words stricken are deletions; words underlined are additions. at any given time. 146 3.

The state or a political subdivision of the state. 147 (c) “Department” means the Department of Labor as created 148 in s. 20.71. 149 (d) “Employee” has the same meaning as established under 150 the federal Fair Labor Standards Act and its implementing 151 regulations in effect on July 1, 2021. 152 (e) “Employer” has the same meaning as established under 153 the federal Fair Labor Standards Act and its implementing 154 regulations in effect on July 1, 2021. 155 (f) “Judgment debtor” means each person who is liable on a 156 judgment or order to pay a sum of money which remains 157 unsatisfied. 158 (g) “Labor contractor” means a person or entity that 159 supplies, with or without a contract, a client employer with 160 employees to perform labor within the client employer’s usual 161 course of business.

The term does not include a bona fide 162 nonprofit, community-based organization that provides services 163 to employees or a labor organization or apprenticeship program 164 operating under a collective bargaining agreement. 165 (h) “Usual course of business” means the regular and 166 customary work of a business performed within or on the premises 167 or worksite of the client employer. 168 (4)

(3) Effective May 2, 2005, employers shall pay employees 169 a minimum wage at an hourly rate of $6.15 for all hours worked 170 in Florida. Only those individuals entitled to receive the 171 federal minimum wage under the federal Fair Labor Standards Act 172 and its implementing regulations shall be eligible to receive 173 the state minimum wage under pursuant to s. 24, Art. X of the 174

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 7 of 23 CODING: Words stricken are deletions; words underlined are additions. State Constitution and this section. Sections 213 and 214 The 175 provisions of ss. 213 and 214 of the federal Fair Labor 176 Standards Act, as interpreted by applicable federal regulations 177 and implemented by the Secretary of Labor, are incorporated 178 herein. 179 (5)(a)(4)(

a) Beginning September 30, 2005, and annually on 180 September 30 thereafter, the department of Economic Opportunity 181 shall calculate an adjusted state minimum wage rate by 182 increasing the state minimum wage by the rate of inflation for 183 the 12 months prior to September 1. In calculating the adjusted 184 state minimum wage, the department of Economic Opportunity shall 185 use the Consumer Price Index for Urban Wage Earners and Clerical 186 Workers, not seasonally adjusted, for the South Region or a 187 successor index as calculated by the United States Department of 188 Labor.

Each adjusted state minimum wage rate shall take effect 189 on the following January 1, with the initial adjusted minimum 190 wage rate to take effect on January 1, 2006. 191 (

b) The Department of Revenue and the department of 192 Economic Opportunity shall annually publish the amount of the 193 adjusted state minimum wage and the effective date. Publication 194 shall occur by posting the adjusted state minimum wage rate and 195 the effective date on the Internet home pages of the department 196 of Economic Opportunity and the Department of Revenue by October 197 15 of each year.

In addition, to the extent funded in the 198 General Appropriations Act, the department of Economic 199 Opportunity shall provide written notice of the adjusted rate 200 and the effective date of the adjusted state minimum wage to all 201 employers registered in the most current reemployment assistance 202 database. Such notice shall be mailed by November 15 of each 203

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 8 of 23 CODING: Words stricken are deletions; words underlined are additions. year using the addresses included in the database. Employers are 204 responsible for maintaining current address information in the 205 reemployment assistance database. The department of Economic 206 Opportunity is not responsible for failure to provide notice due 207 to incorrect or incomplete address information in the database. 208 The department of Economic Opportunity shall provide the 209 Department of Revenue with the adjusted state minimum wage rate 210 information and effective date in a timely manner. 211 (6)(a)

(5) It is shall be unlawful for an employer or any 212 other party to discriminate in any manner or take adverse action 213 against any person in retaliation for exercising rights 214 protected under pursuant to s. 24, Art. X of the State 215 Constitution or this section. 216 (

b) Rights protected under s. 24, Art. X of the State 217 Constitution and this

section include, but are not limited to:, 218 1. The right to file a complaint or inform any person of 219 his or her potential rights under pursuant to s. 24, Art. X of 220 the State Constitution or this

section and to assist him or her 221 in asserting such rights. 222 2. The right to inform a person’s employer, union or other 223 similar organization, legal counsel, or any other person about 224 an alleged violation of s. 24, Art. X of the State Constitution 225 or this section. 226 3. The right to file a complaint with the department or 227 file a civil action for an alleged violation of s. 24, Art. X of 228 the State Constitution or this section. 229 4. The right to cooperate with any investigation conducted 230 under this

section and to testify in any proceeding or action 231 brought under this section. 232

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 9 of 23 CODING: Words stricken are deletions; words underlined are additions. 5. The right to refuse to participate in an activity that 233 violates city, state, or federal law. 234 6. The right to oppose any policy, practice, or act that 235 violates s. 24, Art. X of the State Constitution or this 236 section. 237 (

c) There is a rebuttable presumption that an employer has 238 violated s. 24, Art. X of the State Constitution or this

section 239 if the employer takes adverse action against an employee within 240 90 days after the employee exercises a right under paragraph 241 (b). If an employee is a seasonal worker and his or her work 242 ended before the end of the 90-day period, the rebuttable 243 presumption applies if the employer fails to rehire the seasonal 244 worker in the same position at the next opportunity. The 245 rebuttable presumption may be overcome by clear and convincing 246 evidence. 247 (

d) The protections provided under this

section apply to 248 any employee who in good faith alleges a violation of s. 24, 249 Art. X of the State Constitution or this section. Any complaint 250 or other communication by an employee alleging a violation of s. 251 24, Art. X of the State Constitution or this

section triggers 252 the protections under this

section even if the complaint or 253 communication does not specifically reference this section. 254 (

e) An employee who believes that he or she has been 255 discriminated or retaliated against for exercising a right under 256 s. 24, Art. X of the State Constitution or this

section may file 257 a complaint with the department or a civil action within 4 years 258 after the alleged violation or, in the case of a willful 259 violation, within 5 years after the alleged violation. 260 (

f) An employer has the burden of proving that a person is 261

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 10 of 23 CODING: Words stricken are deletions; words underlined are additions. an independent contractor and not an employee. A person who 262 receives remuneration for services provided is considered an 263 employee unless the employer proves: 264 1. The person is free from control or direction by the 265 employer over the performance of such services. 266 2. The services provided by the person are outside the 267 usual course of business of the employer. 268 3. The person is customarily engaged in an independently 269 established trade, occupation, profession, or business. 270 (7)(

a) The department may commence investigations, actions, 271 and proceedings necessary to enforce this section. The 272 department has the sole discretion as to whether to investigate 273 an employer to determine if a violation of this

section has 274 occurred. 275 (

b) In order to encourage a person or organization to 276 report a suspected violation of this section, the department: 277 1. Shall keep the name and other identifying information of 278 the reporter confidential to the extent allowed by law. The 279 department may disclose the reporter’s name or identification 280 with the written consent of the reporter. 281 2. Shall provide a notice form to an employer being 282 investigated, which must be posted in a conspicuous and 283 accessible location at the workplace, notifying employees that 284 the department is conducting an investigation under this 285 section.

The notice form must be in English and the primary 286 language of the employees in the workplace. If display of the 287 notice form is not feasible, the employer must provide it to 288 each employee through electronic means and also provide each 289 employee a physical copy of the notice form. 290

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 11 of 23 CODING: Words stricken are deletions; words underlined are additions. 3. May certify the eligibility of a person for a visa under 291 8 U.S.C. s. 1184(

p) and 8 U.S.C. s. 1101(a)(15)(U), subject to 292 applicable federal law and regulations, and other rules issued 293 by the department. 294 (8)(

a) During an investigation under this section, the 295 department has the power to: 296 1. Enter and inspect the workplace. 297 2. Inspect and make copies of papers, books, accounts, 298 records, payroll, and other documents necessary to further its 299 investigation. 300 3. Question witnesses under oath and in a private location. 301 4. Issue subpoenas to compel the attendance and testimony 302 of witnesses and the production of papers, books, accounts, 303 records, payroll, and other documents necessary to further its 304 investigation. 305 5. Take depositions and affidavits. 306 6.

Investigate any facts, conditions, practices, or matters 307 as the department deems appropriate to determine whether a 308 violation of this

section has occurred. 309 (

b) If an employer fails to comply with a lawfully issued 310 subpoena or a witness refuses to testify or be questioned, the 311 department may request that the court compel compliance by 312 initiating a proceeding for contempt. 313 (

c) During an administrative or civil proceeding under this 314 section, an employer may not introduce any documentation as 315 evidence which was not provided to the department. 316 (9)(

a) During the course of an investigation under this 317 section, the department or the Attorney General may seek 318 injunctive relief upon a finding of reasonable cause that a 319

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 12 of 23 CODING: Words stricken are deletions; words underlined are additions. violation has occurred. 320 (

b) When determining whether injunctive relief is 321 appropriate, the court shall consider any direct harm to an 322 employee from a violation of this

section and the chilling 323 effect on other employees attempting to assert their rights 324 under this section. Reasonable cause exists for a court to issue 325 an injunction if an employee has faced adverse action for 326 asserting his or her rights under this section. 327 (

c) A temporary injunction remains in effect until the 328 department issues a citation to the employer or until the 329 completion of an administrative hearing, whichever is longer, or 330 until a time certain set by the court. A temporary injunction 331 does not prohibit an employer from taking adverse action against 332 an employee for conduct unrelated to an alleged violation of 333 this section. 334 (

d) The court may issue a preliminary or permanent 335 injunction if it determines such injunction is just and proper. 336 (10)(

a) If a violation of this

section is found during an 337 investigation and the violation has not been remedied by the end 338 of the investigation, the department shall issue a citation to 339 the employer. The citation must be in writing and describe the 340 nature of the violation and include any and all appropriate 341 relief.

Appropriate relief includes requiring an employer to 342 cease and desist; to take any action necessary to remedy the 343 violation, such as rehiring or reinstating an employee, 344 reimbursing lost wages, or paying liquidated damages or other 345 fines and penalties; to take training classes relating to 346 compliance with this section; or to submit to compliance 347 monitoring by the department. The department shall serve the 348

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 13 of 23 CODING: Words stricken are deletions; words underlined are additions. citation in a manner provided by the Florida Rules of Civil 349 Procedure. The citation must advise the employer of his or her 350 right to an administrative hearing to have the citation 351 reviewed. 352 (

b) Within 30 days after service of a citation, an employer 353 must pay the amount specified in the citation or may seek review 354 of the citation by providing a written request for review to the 355 office of the Secretary of Labor. Hearings conducted under this 356 subsection are governed by the department and the rules of 357 practice and procedure adopted by the department. 358 (

c) An administrative hearing must commence within 90 days 359 after receipt of a timely submitted request for review. The 360 hearing officer must render a written decision within 90 days 361 after the conclusion of the hearing. The decision must include a 362 statement of findings, conclusions of law, and a recommended 363 order. The decision must be served on all parties in a manner 364 provided by the Florida Rules of Civil Procedure. If the 365 recommended order includes a monetary remedy, the amount is due 366 45 days after the written decision is properly served on the 367 employer. 368 (d)1. An employer may obtain review of the written decision 369 and order issued under paragraph (

c) by filing a petition for a 370 writ of mandamus to a court having jurisdiction within 45 days 371 after service of the decision. If a petition for a writ of 372 mandamus is not filed within the appropriate time, the 373 recommended order in the written decision becomes final. 374 2. Before an employer may obtain review of the decision, he 375 or she must post an appeal bond, in the amount specified in the 376 recommended order, issued by a licensed surety or as a cash 377

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 14 of 23 CODING: Words stricken are deletions; words underlined are additions. deposit with the court. The employer shall provide written 378 notice to the department and any other parties of the posting of 379 the appeal bond. 380 3. A court may overturn a decision based on abuse of 381 discretion.

An employer establishes an abuse of discretion if he 382 or she alleges that the findings are not supported by the 383 evidence and the court determines that the findings are not 384 supported by substantial evidence when looking at the entire 385 record. 386 4.

If the court issues an order in favor of the aggrieved 387 party or if the appeal is withdrawn or dismissed without entry 388 of judgment, the employer is liable for the amount in the 389 written decision from the administrative hearing, unless the 390 parties execute a settlement agreement, in which case the 391 employer is liable for the amount in the settlement agreement. 392 If the employer fails to pay the amount owed within 10 days 393 after entry of a judgment, dismissal or withdrawal of the 394 appeal, or the execution of a settlement agreement, a portion of 395 the appeal bond equal to the amount owed or, if the amount owed 396 exceeds the amount of the bond, the entire appeal bond shall be 397 paid to the aggrieved party. 398 5.

If the employer does not file a petition for a writ of 399 mandamus under subparagraph 1. or fails to post the appeal bond 400 as required in subparagraph 2., or if the petition is dismissed 401 or withdrawn without entry of judgment, the clerk of the court 402 must certify a copy of the written decision and order issued at 403 the administrative hearing and enter judgment for the state or 404 aggrieved party. The judgment has the same force and effect as a 405 judgment entered in a civil action and may be enforced in the 406

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 15 of 23 CODING: Words stricken are deletions; words underlined are additions. same manner as any other judgment of the court. The court must 407 give priority to petitions to enforce a judgment entered under 408 this section. 409 6.

If an employer fails to comply with a final order, 410 whether issued by a hearing officer or the court, and has 411 exhausted all appeals, the department or the Attorney General 412 may commence and prosecute a civil action to recover unpaid 413 wages, including interest, fines, or penalties; equitable 414 relief; or liquidated damages owed to an aggrieved person. The 415 prevailing party is entitled to applicable fines or civil 416 penalties and reasonable attorney fees and costs. 417 (6)(

a) Any person aggrieved by a violation of this

section 418 may bring a civil action in a court of competent jurisdiction 419 against an employer violating this

section or a party violating 420 subsection (5). However, prior to bringing any claim for unpaid 421 minimum wages pursuant to this section, the person aggrieved 422 shall notify the employer alleged to have violated this section, 423 in writing, of an intent to initiate such an action. The notice 424 must identify the minimum wage to which the person aggrieved 425 claims entitlement, the actual or estimated work dates and hours 426 for which payment is sought, and the total amount of alleged 427 unpaid wages through the date of the notice. 428 (

b) The employer shall have 15 calendar days after receipt 429 of the notice to pay the total amount of unpaid wages or 430 otherwise resolve the claim to the satisfaction of the person 431 aggrieved. The statute of limitations for bringing an action 432 pursuant to this

section shall be tolled during this 15-day 433 period. If the employer fails to pay the total amount of unpaid 434 wages or otherwise resolve the claim to the satisfaction of the 435

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 16 of 23 CODING: Words stricken are deletions; words underlined are additions. person aggrieved, then the person aggrieved may bring a claim 436 for unpaid minimum wages, the terms of which must be consistent 437 with the contents of the notice. 438 (11)(a)(c)1.

Upon prevailing in an action brought under 439 pursuant to this section, aggrieved persons shall recover the 440 full amount of any unpaid back wages, plus interest, unlawfully 441 withheld plus up to two times the unpaid wages the same amount 442 as liquidated damages and must shall be awarded reasonable 443 attorney attorney’s fees and costs.

As provided under the 444 federal Fair Labor Standards Act, pursuant to s. 11 of the 445 Portal-to-Portal Act of 1947, 29 U.S.C. s. 260, if the employer 446 proves by a preponderance of the evidence that the act or 447 omission giving rise to such action was in good faith and that 448 the employer had reasonable grounds for believing that his or 449 her act or omission was not a violation of s. 24, Art.

X of the 450 State Constitution or this section, the court may, in its sound 451 discretion, award no liquidated damages or award any amount 452 thereof not to exceed an amount equal to the amount of unpaid 453 minimum wages. The court may shall not award any economic 454 damages on a claim for unpaid minimum wages not expressly 455 authorized in this section. 456 (b)2.

Upon prevailing in an action brought under pursuant 457 to this section, aggrieved persons also are shall also be 458 entitled to such legal or equitable relief as may be appropriate 459 to remedy the violation, including, without limitation, 460 reinstatement in employment and injunctive relief. However, any 461 entitlement to legal or equitable relief in an action brought 462 under s. 24, Art. X of the State Constitution or this

section 463 may shall not include punitive damages. 464

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 17 of 23 CODING: Words stricken are deletions; words underlined are additions. (

c) If an employer is found to have willfully violated this 465 section, the department may impose a fine of $1,000 per 466 violation payable to the state. 467 (

d) Any employer or other person found to have hindered, 468 prevented, impeded, or interfered with the department or 469 administrative hearing body in the performance of its duties is 470 subject to a civil penalty of not less than $1,000 and not more 471 than $5,000. 472 (

e) If the court finds that an employer took adverse action 473 or retaliated against an employee in violation of subsection 474 (6): 475 1. The court may order reinstatement of the aggrieved 476 party, front pay in lieu of reinstatement, back pay, liquidated 477 damages up to two times the amount of the unpaid wages, and 478 other compensatory damages as appropriate. 479 2. The department may impose an administrative penalty not 480 to exceed $5,000 to the aggrieved party. 481 (f)(

d) Any civil action brought under s. 24, Art. X of the 482 State Constitution and this

section is shall be subject to s. 483 768.79. 484

(7) The Attorney General may bring a civil action to 485 enforce this section. The Attorney General may seek injunctive 486 relief. In addition to injunctive relief, or in lieu thereof, 487 for any employer or other person found to have willfully 488 violated this section, the Attorney General may seek to impose a 489 fine of $1,000 per violation, payable to the state. 490 (12)

(8) The statute of limitations for an action brought 491 under pursuant to this

section is shall be for the period of 492 time specified in s. 95.11 beginning on the date the department 493

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 18 of 23 CODING: Words stricken are deletions; words underlined are additions. issues a written notice to the employer that an investigation 494 has commenced the alleged violation occurred. The statute of 495 limitations applicable to an action under this

section is tolled 496 during the department’s investigation and any administrative 497 enforcement under this section. 498 (13)

(9) Actions brought under pursuant to this

section may 499 be brought as a class action pursuant to Rule 1.220, Florida 500 Rules of Civil Procedure. In any class action brought under 501 pursuant to this section, the plaintiffs must shall prove, by a 502 preponderance of the evidence, the individual identity of each 503 class member and the individual damages of each class member. 504 (14)

(10) This

section is shall constitute the exclusive 505 remedy under state law for violations of s. 24, Art. X of the 506 State Constitution. 507

(15) The department shall make reasonable efforts to ensure 508 that judgments against an employer are satisfied and may use any 509 remedy available to a judgment creditor to collect an 510 unsatisfied judgment. The department may collect wages, damages, 511 and other monetary remedies on behalf of an employee. The 512 department acts as the trustee of any unsatisfied judgment it 513 collects and shall deposit such wages, damages, or other 514 monetary remedy in the appropriate fund as provided by rule. The 515 department shall conduct a diligent search for any employee for 516 whom it collects an unsatisfied judgment. 517 (16)(

a) Beginning on the 20th day after a judgment is 518 entered by a court of competent jurisdiction in favor of the 519 department, the department may issue a notice of levy on all 520 persons having in their possession or under their control any 521 credits, money, or property belonging to the judgment debtor. If 522

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 19 of 23 CODING: Words stricken are deletions; words underlined are additions. the levy is made on credits, money, or property in the 523 possession or under the control of a bank, a savings and loan 524 association, or another financial institution as defined in 42 525 U.S.C. s. 669a(d)(1), the notice of levy may be mailed or hand-526 delivered to a centralized location designated by the bank, the 527 savings and loan association, or the other financial 528 institution. 529 (

b) Any person who receives a notice of levy shall 530 surrender the credits, money, or property to the department or 531 pay to the department the amount of any debt owed within 10 days 532 after service of the levy. Any person who surrenders to the 533 department any credits, money, or property of the judgment 534 debtor is discharged from any obligation or liability to the 535 judgment debtor relating to the amount paid to the department. 536 (

c) Any person who receives a notice of levy from the 537 department and fails or refuses to surrender any credits, money, 538 or property of the judgment debtor is liable to the department 539 for the amount specified in the notice of levy. 540 (

d) Any fees, commissions, expenses, or costs associated 541 with the sale of property levied under this subsection are the 542 obligation of the judgment debtor and may be collected by virtue 543 of the levy or in any other manner as though the fees, 544 commissions, expenses, or costs were part of the judgment. 545 (

e) The department may create a lien on any real or 546 personal property of an employer found in violation of s. 24, 547 Art. X of the State Constitution or this section. The department 548 shall release the lien upon final satisfaction of any judgment 549 entered in favor of an aggrieved party or the department, or 550 upon adjudication of the claim in favor of the employer. A lien 551

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 20 of 23 CODING: Words stricken are deletions; words underlined are additions. created under this paragraph lasts 10 years after the date it is 552 created unless the lien is satisfied or released. A lien created 553 under this paragraph is in addition to any other rights 554 available to an aggrieved party or the department. 555 (17)(

a) If a final judgment awarded under this

section 556 remains unsatisfied 30 days after all appeals have been 557 exhausted or the time to file an appeal has expired, the 558 department may issue a stop-order prohibiting the employer from 559 conducting business in this state using employee labor, 560 including conducting business using the labor of another 561 business, contractor, or subcontractor instead of the labor of 562 an employee, until the judgment is satisfied. The stop-order is 563 effective upon receipt of the order, and the employer must pay 564 employees up to 10 days of lost wages due to the stop-order. 565 (

b) An employer may appeal the stop-order by filing, within 566 20 days after receipt of the stop-order, a written request with 567 the department for an administrative hearing. The hearing must 568 be held within 5 days after receipt of the written request, at 569 which time the stop-order must be affirmed or dismissed, and the 570 department shall serve a written notice of findings on all 571 parties within 24 hours after the conclusion of the hearing. A 572 party may appeal the written notice of findings to a court of 573 competent jurisdiction within 45 days after the notice is 574 mailed.

The department may seek injunctive or other appropriate 575 relief to enforce the stop-order and is entitled to attorney 576 fees and costs if the department prevails. 577 (

c) An employer, owner, director, officer, or managing 578 agent of an employer who fails to comply with a stop-order 579 issued under this subsection commits a misdemeanor of the second 580

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 21 of 23 CODING: Words stricken are deletions; words underlined are additions. degree, punishable as provided in s. 775.082 or s. 775.083. 581 (

d) This subsection does not apply if the stop-order would 582 compromise public safety or the life, health, and care of a 583 vulnerable person. 584

(18) If a final judgment awarded under this

section remains 585 unsatisfied 30 days after all appeals have been exhausted or the 586 time to file an appeal has expired, the department may request 587 that the appropriate state agency deny, suspend, or revoke any 588 license held by the employer until such time as the judgment is 589 satisfied, and that agency may take such action. 590

(19) Any person acting on behalf of an employer may be held 591 liable as the employer for a violation of s. 24, Art. X of the 592 State Constitution or this section. A client employer is jointly 593 and severally liable with a labor contractor for the payment of 594 unpaid wages, interest, liquidated damages, fines, or penalties 595 awarded under this section. 596

(20) All employers, client employers, and labor contractors 597 shall create records documenting compliance with s. 24, Art. X 598 of the State Constitution and this

section in accordance with 599 department rules. Records must be maintained for a minimum of 5 600 years after an employee leaves the employment of the employer or 601 client employer, or is no longer working with a labor 602 contractor. An employer, client employer, or labor contractor 603 must allow the department reasonable access to the records when 604 requested. If an employee alleges a violation of s. 24, Art. X 605 of the State Constitution or this

section and the employer, 606 client employer, or labor contractor has not created and 607 maintained records as required under this subsection, there is a 608 rebuttable presumption that the employer, client employer, or 609

Florida Senate - 2021 SB 1726 15-01862-21 20211726__ Page 22 of 23 CODING: Words stricken are deletions; words underlined are additions. labor contractor is in violation of the law. The employer, 610 client employer, or labor contractor can overcome this 611 presumption with clear and convincing evidence. 612

(21) The department may enter into agreements with local, 613 state, or federal agencies to assist in the administration and 614 enforcement of this section. 615

(22) Subject to the appropriation of funds by the 616 Legislature, the department shall establish and maintain an 617 outreach and education partnership program to promote awareness 618 of, and compliance with, s. 24, Art. X of the State Constitution 619 and this section. The department shall pursue partnerships with 620 community-based organizations and unions through a competitive 621 request for proposals. Duties of the outreach and education 622 partnership program may include: 623 (

a) Disseminating information and conducting outreach and 624 training to educate employees about their rights. 625 (

b) Conducting educational training for employers about 626 their obligations. 627 (

c) Assisting employees with filing a claim for a violation 628 under s. 24, Art. X of the State Constitution or this section. 629 (

d) Assisting the department in conducting investigations 630 under this section, including the collection of evidence and 631 enforcement of a judgment. 632 (

e) Monitoring compliance with s. 24, Art. X of the State 633 Constitution and this section. 634 (

f) Establishing networks for education, communication, and 635 participation in the workplace and community. 636 (

g) Producing and disseminating training materials to 637 employers and employees. 638

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(11) Except for calculating the adjusted state minimum 639 wage and publishing the initial state minimum wage and any 640 annual adjustments thereto, the authority of the department of 641 Economic Opportunity in implementing s. 24, Art. X of the State 642 Constitution, pursuant to this section, is shall be limited to 643 that authority expressly granted by the Legislature. 644

Section 4. This act shall take effect July 1, 2021. 645