Senate Bill 1756 (2022) — Department of Labor
SB 1756
Florida Bills
Florida Senate - 2022 SB 1756 By Senator Torres 15-01677-22 20221756__ Page 1 of 25 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 as a 3 new department of state government; providing for the 4 secretary of the department to be appointed by the 5 Governor and confirmed by the Senate; authorizing the 6 secretary to establish divisions and regional offices 7 of the department; providing the purpose of the 8 department; authorizing the department to adopt r ules; 9 amending s. 448.109, F.S.; revising requirements for 10 notifying employees of certain rights; conforming 11 provisions to changes made by the act; amending s. 12 448.110, F.S.; designating the Department of Labor as 13 the state Agency for Workforce Innovation for purposes 14 of implementing s. 24, Art.
X of the State 15 Constitution; defining terms; revising the protected 16 rights of employees; creating a rebuttable presumption 17 and burden of proof for an employer; providing 18 applicability; prohibiting a person or entity from 19 entering into certain contracts relating to labor or 20 services under certain circumstances; authorizing and 21 providing the department certain powers to conduct 22 investigations, issue citations, and enforce and 23 collect judgments by certain means; providing for 24 appropriate relief, including injunctive relief, under 25 certain circumstances; providing a process for review 26 of a citation, levy, or stop-order issued by the 27 department; providing civil and criminal penalties; 28 tolling the statute of limitations during an 29
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 2 of 25 CODING: Words stricken are deletions; words underlined are additions. investigation; providing liability; requiring and 30 authorizing the department to take certain actions 31 relating to judgments against employers; requiring all 32 employers, client employers, and labor contractors to 33 create certain records documenting their compliance 34 with specified laws and maintain the records for a 35 specified length of time; requiring employers, client 36 employers, and labor contractors to allow the 37 department reasonable access to the records; 38 authorizing the department to partner with other 39 entities for administration and enforcement purposes; 40 requiring the department to establish an outreach and 41 education partnership program, subject to an 42 appropriation by the Legislature; providing duties and 43 powers of such program; creating s. 448.111, F.
S.; 44 creating the Department of Labor Community Advisory 45 Board within the department; providing for membership, 46 meetings, and duties of the advisory board; requiring 47 an annual report to the Secretary of Labor, the 48 Governor, and the Legislature; providing an effective 49 date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53
Section
Section 20.71, Florida Statutes, is created to 54 read: 55 20.71 Department of Labor; creation; powers and duties. — 56
(1) There is created the Department of Labor. 57
(2) The head of the department is the Secretary of Labor, 58
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 3 of 25 CODING: Words stricken are deletions; words underlined are additions. who shall be appointed by the Governor, subject to confirmation 59 by the Senate. The secretary shall serve at the pleasure of and 60 report to the Governor. 61
(3) The secretary may create divisions within the 62 department and allocate various functions of the department 63 among such divisions. 64 (4)(
a) The headquarters of the department shall be located 65 in Tallahassee. However, the department may establish regional 66 offices throughout the state as the secretary deems necessary 67 for the efficient operation of the department in accomplishing 68 its purpose. 69 (
b) The purpose of the department is to enforce s. 24, Art. 70 X of the State Constitution, s. 448.110, and any other law that 71 the department has enforcement authority over as designated by 72 the Legislature. 73
(5) The department may adopt rules as necessary to carry 74 out the functions and purposes of the department. 75
Section 2. Paragraph (
a) of subsection (3) of
section 76 448.109, Florida Statutes, is amended to read: 77 448.109 Notification of the state minimum wage.— 78 (3)(
a) Each year the Department of Labor Department of 79 Economic Opportunity shall, on or before December 1, create and 80 make available to employers a poster in English , and in Spanish, 81 and any other languages, as necessary, which gives notice of all 82 of the following: 83 1. The right to the minimum wage as provided by s. 24, Art. 84 X of the State Constitution and s. 448.110. 85 2. The right to be protected from retaliation for 86 exercising in good faith any right protected under s. 24, Art. X 87
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 4 of 25 CODING: Words stricken are deletions; words underlined are additions. of the State Constitution and s. 448.110. 88 3. The right to file a complaint with the Department of 89 Labor or bring a civil action for a violation of s. 24, Art.
X 90 of the State Constitution or s. 448.110. which reads 91 substantially as follows: 92 NOTICE TO EMPLOYEES 93 The Florida minimum wage is $ ...(amount)... per hour, with a 94 minimum wage of at least $ ...(amount)... per hour for tipped 95 employees, in addition to tips, for January 1, ...(year)..., 96 through December 31, ...(year).... 97 The rate of the minimum wage is recalculated yearly on September 98 30, based on the Consumer Price Index.
Every year on January 1 99 the new Florida minimum wage takes effect. 100 An employer may not retaliate against an employee for exercising 101 his or her right to receive the minimum wage. Rights protected 102 by the State Constitution include the right to: 103 1. File a complaint about an employer’s alleged noncompliance 104 with lawful minimum wage requirements. 105 2. Inform any person about an employer’s alleged noncompliance 106 with lawful minimum wage requirements. 107 3. Inform any person of his or her potential rights under 108
Section 24,
Article X of the State Constitution and to 109 assist him or her in asserting such rights. 110 An employee who has not received the lawful minimum wage after 111 notifying his or her employer and giving the employer 15 days to 112 resolve any claims for unpaid wages may bring a civil action in 113 a court of law against an employer to recover back wages plus 114 damages and attorney’s fees. 115 An employer found liable for intentionally violating minimum 116
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 5 of 25 CODING: Words stricken are deletions; words underlined are additions. wage requirements is subject to a fine of $1,000 per violation, 117 payable to the state. 118 The Attorney General or other official designated by the 119 Legislature may bring a civil action to enforce the minimum 120 wage. 121 For details see
Section 24,
Article X of the State Constitution. 122
Section
Section 448.110, Florida Statutes, is amended to 123 read: 124 448.110 State minimum wage; annual wage adjustment; 125 enforcement.— 126
(1) This
section may be cited as the “Florida Minimum Wage 127 Act.” 128
(2) The purpose of this
section is to provide measures 129 appropriate for the implementation of s. 24, Art. X of the State 130 Constitution, in accordance with authority granted to the 131 Legislature under pursuant to s. 24(f), Art. X of the State 132 Constitution. To implement s. 24, Art. X of the State 133 Constitution, the Department of Labor Department of Economic 134 Opportunity is designated as the state Agency for Workforce 135 Innovation. 136
(3) As used in this section, the term: 137 (a) “Adverse action” means the discharge, suspension, 138 transfer, or demotion of an employee; the withholding of wages, 139 bonuses, benefits, or workable hours; filing, or threatening to 140 file, a false report with a government agency or engaging in 141 unfair immigration-related practices; or any other adverse 142 action taken against an employee within the terms and conditions 143 of employment by an employer. 144 (b) “Client employer” means a business entity, regardless 145
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 6 of 25 CODING: Words stricken are deletions; words underlined are additions. of its form, that obtains or is provided employees to perform 146 labor within its usual course of business from a labor 147 contractor. The term does not include: 148 1. A business entity with a workforce of 25 or fewer 149 employees, including employees hired directly by the client 150 employer and those obtained from or provided by a labor 151 contractor. 152 2.
A business entity with a workforce of 5 or fewer 153 employees supplied by a labor contractor to the client employer 154 at any given time. 155 3.
The state or a political subdivision of the state. 156 (c) “Department” means the Department of Labor as created 157 in s. 20.71. 158 (d) “Employee” has the same meaning as established under 159 the federal Fair Labor Standards Act and its implementing 160 regulations in effect on July 1, 2022. 161 (e) “Employer” has the same meaning as established under 162 the federal Fair Labor Standards Act and its implementing 163 regulations in effect on July 1, 2022. 164 (f) “Judgment debtor” means each person who is liable on a 165 judgment or order to pay a sum of money which remains 166 unsatisfied. 167 (g) “Labor contractor” means a person or entity that 168 supplies, with or without a contract, a client employer with 169 employees to perform labor within the client employer’s usual 170 course of business.
The term does not include a bona fide 171 nonprofit, community-based organization that provides services 172 to employees or a labor organization or an apprenticeship 173 program operating under a collective bargaining agreement. 174
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 7 of 25 CODING: Words stricken are deletions; words underlined are additions. (h) “Usual course of business” means the regular and 175 customary work of a business performed within or upon the 176 premises or worksite of the client employer. 177 (4)
(3) Effective May 2, 2005, employers shall pay employees 178 a minimum wage at an hourly rate of $6.15 for all hours worked 179 in Florida. Only those individuals entitled to receive the 180 federal minimum wage under the federal Fair Labor Standards Act 181 and its implementing regulations shall be eligible to receive 182 the state minimum wage under pursuant to s. 24, Art. X of the 183 State Constitution and this section. Sections 213 and 214 The 184 provisions of ss. 213 and 214 of the federal Fair Labor 185 Standards Act, as interpreted by applicable federal regulations 186 and implemented by the Secretary of Labor, are incorporated 187 herein. 188 (5)(a)(4)(
a) Beginning September 30, 2005, and annually on 189 September 30 thereafter, the department of Economic Opportunity 190 shall calculate an adjusted state minimum wage rate by 191 increasing the state minimum wage by the rate of inflation for 192 the 12 months prior to September 1. In calculating the adjusted 193 state minimum wage, the department of Economic Opportunity shall 194 use the Consumer Price Index for Urban Wage Earners and Clerical 195 Workers, not seasonally adjusted, for the South Region or a 196 successor index as calculated by the United States Department of 197 Labor.
Each adjusted state minimum wage rate shall take effect 198 on the following January 1, with the initial adjusted minimum 199 wage rate to take effect on January 1, 2006. 200 (
b) The Department of Revenue and the department of 201 Economic Opportunity shall annually publish the amount of the 202 adjusted state minimum wage and the effective date. Publication 203
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 8 of 25 CODING: Words stricken are deletions; words underlined are additions. shall occur by posting the adjusted state minimum wage rate and 204 the effective date on the Internet home pages of the department 205 of Economic Opportunity and the Department of Revenue by October 206 15 of each year.
In addition, to the extent funded in the 207 General Appropriations Act, the department of Economic 208 Opportunity shall provide written notice of the adjusted rate 209 and the effective date of the adjusted state minimum wage to all 210 employers registered in the most current reemployment assistance 211 database. Such notice shall be mailed by November 15 of each 212 year using the addresses included in the database. Employers are 213 responsible for maintaining current address information in the 214 reemployment assistance database.
The department of Economic 215 Opportunity is not responsible for failure to provide notice due 216 to incorrect or incomplete address information in the database. 217 The department of Economic Opportunity shall provide the 218 Department of Revenue with the adjusted state minimum wage rate 219 information and effective date in a timely manner. 220 (6)(a)
(5) It is shall be unlawful for an employer or any 221 other party to discriminate in any manner or take adverse action 222 against any person in retaliation for exercising rights 223 protected under pursuant to s. 24, Art. X of the State 224 Constitution or this section. 225 (
b) Rights protected under s. 24, Art. X of the State 226 Constitution and this
section include, but are not limited to:, 227 1. The right to file a complaint or inform any person of 228 his or her potential rights under pursuant to s. 24, Art. X of 229 the State Constitution or this
section and to assist such person 230 him or her in asserting his or her such rights. 231 2. The right to inform a person’s employer, union or other 232
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 9 of 25 CODING: Words stricken are deletions; words underlined are additions. similar organization, legal counsel, or any other person about 233 an alleged violation of s. 24, Art. X of the State Constitution 234 or this section. 235 3. The right to file a complaint with the department or 236 file a civil action for an alleged violation of s. 24, Art. X of 237 the State Constitution or this section. 238 4. The right to cooperate with any investigation conducted 239 under this
section and to testify in any proceeding or action 240 brought under this section. 241 5. The right to refuse to participate in an activity that 242 violates city, state, or federal law. 243 6. The right to oppose any policy, practice, or act that 244 violates s. 24, Art. X of the State Constitution or this 245 section. 246 (
c) There is a rebuttable presumption that an employer has 247 violated s. 24, Art. X of the State Constitution or this
section 248 if the employer takes adverse action against an employe e within 249 90 days after the employee exercises a right under paragraph 250 (b). If an employee is a seasonal worker and his or her work 251 ended before the end of the 90-day period, the rebuttable 252 presumption applies if the employer fails to rehire the seasonal 253 worker in the same position at the next opportunity. The 254 rebuttable presumption may be overcome by clear and convincing 255 evidence. 256 (
d) The protections provided under this
section apply to 257 any employee who alleges a violation of s. 24, Art. X of the 258 State Constitution or this
section in good faith. Any complaint 259 or other communication by an employee alleging a violation of s. 260 24, Art. X of the State Constitution or this
section triggers 261
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 10 of 25 CODING: Words stricken are deletions; words underlined are additions. the protections under this
section even if the complaint or 262 communication does not specifically reference this section. 263 (
e) An employee who believes he or she has been 264 discriminated or retaliated against for exercising a right under 265 s. 24, Art. X of the State Constitution or this
section may file 266 a complaint with the department or a civil action within 4 years 267 after the alleged violation or, in the case of a willful 268 violation, within 5 years after the alleged violation. 269
(7) An employer has the burden of proving that a person is 270 an independent contractor and not an employee. A pers on who 271 receives remuneration for services provided is considered an 272 employee unless the employer proves all of the following: 273 (
a) The person is free from control or direction by the 274 employer over the performance of such service. 275 (
b) The service provided by the person is outside the usual 276 course of business of the employer. 277 (
c) The person is customarily engaged in an independently 278 established trade, occupation, profession, or business. 279
(8) A person or entity may not enter into a contract or 280 agreement with an independent contractor for labor or services 281 if the person or entity knows or should know that the contract 282 or agreement does not include funds sufficient to allow the 283 independent contractor to comply with all applicable local, 284 state, and federal laws or regulations governing the labor or 285 services to be provided. 286 (9)(
a) The department may commence investigations, actions, 287 and proceedings necessary to enforce this section. The 288 department has the sole discretion whether to investigate an 289 employer to determine if a violation of this
section has 290
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 11 of 25 CODING: Words stricken are deletions; words underlined are additions. occurred. 291 (
b) In order to encourage a person or organization to 292 report a suspected violation of this section, the department: 293 1. Shall keep the name and other identifying information 294 about the reporter confidential to the extent permitted by law. 295 The department may disclose the reporter’s name or 296 identification with the written consent of the reporter. 297 2.
Shall provide a notice form to an employer being 298 investigated, which must be posted in a conspicuous and 299 accessible location at the workplace, notifying the employees 300 that the department is conducting an investigation under this 301 section. The notice form must be in English and any other 302 language that is the primary language of a majority of the 303 employees in the workplace. If displaying the notice form is not 304 feasible, the employer must provide the notice form to each 305 employee through electronic means and also provide each employee 306 a physical copy of the notice form. 307 3.
May certify the eligibility of a person for a visa und er 308 8 U.S.C. s. 1184(
p) and 8 U.S.C. s. 1101(a)(15)(U), subject to 309 applicable federal law and regulations, and other rules issued 310 by the department. 311 (10)(
a) During an investigation under this section, the 312 department has the power to: 313 1. Enter and inspect the workplace. 314 2. Inspect and make copies of papers, books, accounts, 315 records, payroll, and other documents necessary to further its 316 investigation. 317 3. Question witnesses under oath and in a private location. 318 4. Issue subpoenas to compel the attendance and testimony 319
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 12 of 25 CODING: Words stricken are deletions; words underlined are additions. of witnesses and the production of papers, books, accounts, 320 records, payroll, and other documents necessary to further its 321 investigation. 322 5. Take depositions and affidavits. 323 6. Investigate any facts, conditions, practices, or matters 324 as the department deems appropriate to determine whether a 325 violation of this
section has occurred. 326 (
b) If an employer fails to comply with a lawfully issued 327 subpoena or if a witness refuses to testify or be questioned, 328 the department may request that the court compel compliance by 329 initiating a proceeding for contempt. The court shall take 330 judicial notice under s. 90.202(13) of the department’s seal, 331 “Department of Labor-State of Florida,” and shall enforce any 332 subpoena issued by the Secretary of Labor or his or her 333 representative under such seal. 334 (
c) During an administrative or civil proceeding under this 335 section, an employer may not introduce any documentation as 336 evidence that was not provided to the department. 337 (11)(
a) During the course of an investigation under this 338 section, the department or the Attorney General may seek 339 injunctive relief upon a finding of reasonable cause that a 340 violation has occurred. 341 (
b) When determining whether injunctive relief is 342 appropriate, the court shall consider any direct harm to an 343 employee from a violation of this
section and the chilling 344 effect on other employees attempting to assert their rights 345 under this section. Reasonable cause exists for a court to issue 346 an injunction if an employee has faced adverse action for 347 asserting his or her rights under this section. 348
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 13 of 25 CODING: Words stricken are deletions; words underlined are additions. (
c) A temporary injunction remains in effect until the 349 department issues a citation to the employer or until the 350 completion of an administrative hearing, whichever is longer, or 351 until a time certain set by the court. A temporar y injunction 352 does not prohibit an employer from taking adverse action against 353 an employee for conduct unrelated to an alleged violation of 354 this section. 355 (
d) The court may issue a preliminary or permanent 356 injunction if it determines such injunction is just and proper. 357 (12)(
a) If a violation of this
section is found during an 358 investigation and the violation has not been remedied by the end 359 of the investigation, the department shall issue a citation to 360 the employer. The citation must be in writing and describe the 361 nature of the violation and include any and all appropriate 362 relief.
Appropriate relief includes requiring an employer to 363 cease and desist; to take any action necessary to remedy the 364 violation, such as rehiring or reinstating an employee, 365 reimbursing lost wages, or paying liquidated damages or other 366 fines and penalties; to take training classes relating to 367 compliance with this section; or to submit to compliance 368 monitoring by the department. The department shall serve the 369 citation in a manner provided by the Florida Rules of Civil 370 Procedure.
The citation must advise the employer of his or her 371 right to an administrative hearing to have the citation 372 reviewed. 373 (
b) Within 30 days after service of a citation, an employer 374 must comply with all appropriate relief specified in the 375 citation or may obtain review of the citation by providing a 376 written request for review to the office of the Secretary of 377
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 14 of 25 CODING: Words stricken are deletions; words underlined are additions. Labor. Upon receipt of a written request for review, the 378 Secretary of Labor shall assign the citation to an 379 administrative law judge to conduct a hearing and issue a 380 written decision. Hearings conducted under this subsection are 381 governed by the department and the rules of practice and 382 procedure adopted by the department. 383 (
c) An administrative hearing must commence within 90 days 384 after receipt of a timely submitted request for review. The 385 administrative law judge must render a written decision within 386 90 days after the conclusion of the hearing. The decision must 387 include a statement of findings, conclusions of law, and a 388 recommended order that specifies all appropriate relief as 389 authorized under paragraph (a), including the amount required 390 for an appeal bond should the employer choose to obtain review 391 of the order issued under paragraph (d).
The decision must be 392 served on all parties in a manner provided by the Florida Rules 393 of Civil Procedure. If the recommended order includes a monetary 394 remedy, the amount is due 45 days after the written decision is 395 properly served on the employer. 396 (d)1. An employer may obtain review of the written decision 397 and order issued under paragraph (
c) by filing a petition for a 398 writ of mandamus to a court having jurisdiction within 45 days 399 after service of the decision. If a petition for a writ of 400 mandamus is not filed within the appropriate time, the 401 recommended order in the written decision becomes final. 402 2. Before an employer may obtain review of the decision, he 403 or she must post an appeal bond, in the amount specified in the 404 recommended order, issued by a licensed surety or as a cash 405 deposit with the court. The employer shall provide written 406
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 15 of 25 CODING: Words stricken are deletions; words underlined are additions. notice to the department and any other parties of the posting of 407 the appeal bond. 408 3. A court may overturn a decision based on abuse of 409 discretion. An employer establishes an abuse of discretion if he 410 or she alleges that the findings are not supported by the 411 evidence and the court determines that the findings are not 412 supported by substantial evidence when looking at the entire 413 record. 414 4.
If the court issues an order in favor of the aggrieved 415 party or if the appeal is withdrawn or dismissed without entry 416 of judgment, the employer is liable for the relief specified in 417 the written decision from the administrative hearing, unless the 418 parties execute a settlement agreement, in which case the 419 employer is liable for the relief specified in the settlement 420 agreement.
If the written decision from the administrative 421 hearing or the settlement agreement provides for monetary 422 relief, and the employer fails to pay the amount owed within 10 423 days after entry of a judgment, dismissal or withdrawal of the 424 appeal, or the execution of a settlement agreement, a portion of 425 the appeal bond equal to the amount owed, or the entire appeal 426 bond if the amount owed exceeds the amount of the bond, shall be 427 paid to the aggrieved party. 428 5.
If the employer does not request review of the citation 429 under paragraph (b), file a writ of mandamus under subparagraph 430 1., or post the appeal bond as required in subparagraph 2., and 431 the time to do so has expired, or if the petition for a writ of 432 mandamus is dismissed or withdrawn without entry of judgment, 433 the clerk of the court shall certify a copy of the citation or 434 written decision and order issued by the department or by the 435
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 16 of 25 CODING: Words stricken are deletions; words underlined are additions. administrative law judge, respectively, and enter judgment for 436 the state or aggrieved party. The judgment has the same force 437 and effect as a judgment entered in a civil action and may be 438 enforced in the same manner as any other judgment of the court. 439 The court must give priority to petitions to enforce a judgment 440 entered under this section. 441 6.
If an employer fails to comply with a citation or final 442 order, whether issued by the department, administrative law 443 judge, or court, and has exhausted all reviews or appeals or the 444 time to file a review or appeal has expired, the department or 445 the Attorney General may commence and prosecute a civil action 446 to recover unpaid wages, including interest, fines, or 447 penalties; equitable relief; or liquidated damages owed to an 448 aggrieved person. The prevailing party is entitled to applicable 449 fines or civil penalties and reasonable attorney fees and costs. 450 (6)(
a) Any person aggrieved by a violation of this
section 451 may bring a civil action in a court of competent jurisdiction 452 against an employer violating this
section or a party violating 453 subsection (5). However, prior to bringing any claim for unpaid 454 minimum wages pursuant to this section, the person aggrieved 455 shall notify the employer alleged to have violated this section, 456 in writing, of an intent to initiate such an action. The notice 457 must identify the minimum wage to which the person aggrieved 458 claims entitlement, the actual or estimated work dates and hours 459 for which payment is sought, and the total amount of alleged 460 unpaid wages through the date of the notice. 461 (
b) The employer shall have 15 calendar days after receipt 462 of the notice to pay the total amount of unpaid wages or 463 otherwise resolve the claim to the satisfaction of the person 464
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 17 of 25 CODING: Words stricken are deletions; words underlined are additions. aggrieved. The statute of limitations for bringing an action 465 pursuant to this
section shall be tolled during this 15 -day 466 period. If the employer fails to pay the total amount of unpaid 467 wages or otherwise resolve the claim to the satisfaction of the 468 person aggrieved, then the person aggrieved may bring a claim 469 for unpaid minimum wages, the terms of which must be consistent 470 with the contents of the notice. 471 (13)(a)(c)1. Upon prevailing in a civil an action brought 472 under paragraph (6)(
e) pursuant to this section, aggrieved 473 persons shall recover the full amount of any unpaid back wages , 474 plus interest, unlawfully withheld plus up to two times the 475 unpaid wages the same amount as liquidated damages and shall be 476 awarded reasonable attorney attorney’s fees and costs. 477 Additionally, As provided under the federal Fair Labor Standards 478 Act, pursuant to s. 11 of the Portal-to-Portal Act of 1947, 29 479 U.S.C. s. 260, if the employer proves by a preponderance of the 480 evidence that the act or omission giving rise to such action was 481 in good faith and that the employer had reasonable grounds for 482 believing that his or her act or omission was not a violati on of 483 s. 24, Art.
X of the State Constitution, the court may, in its 484 sound discretion, award no liquidated damages or award any 485 amount thereof not to exceed an amount equal to the amount of 486 unpaid minimum wages. The court shall not award any economic 487 damages on a claim for unpaid minimum wages not expressly 488 authorized in this section. 489 2. Upon prevailing in an action brought pursuant to this 490 section, aggrieved persons are shall also be entitled to such 491 legal or equitable relief as may be appropriate to remed y the 492 violation, including, without limitation, reinstatement in 493
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 18 of 25 CODING: Words stricken are deletions; words underlined are additions. employment and injunctive relief. However, any entitlement to 494 legal or equitable relief in an action brought under s. 24, Art. 495 X of the State Constitution or this
section may shall not 496 include punitive damages. 497 (
b) If an employer is found to have willfully violated s. 498 24, Art. X of the State Constitution or this section, the 499 department, administrative law judge, or court may impose a fine 500 of $1,000 per violation payable to the state. 501 (
c) Any employer or other person found to have hindered, 502 prevented, impeded, or interfered with the department or 503 administrative hearing body in the performance of their duties 504 is subject to a civil penalty of not less than $1,000 and not 505 more than $5,000, which may be assessed by the department, 506 administrative law judge, or court. 507 (
d) If the department, administrative law judge, or court 508 finds that an employer took adverse action or retaliated against 509 an employee in violation of subsection (6): 510 1. The department, administrative law judge, or court may 511 order reinstatement of the aggrieved party, front pay in lieu of 512 reinstatement, back pay, liquidated damages up to two times the 513 amount of the unpaid wages, and other compensatory damages as 514 appropriate. 515 2. The department, administrative law judge, or court may 516 impose an administrative penalty not to exceed $5,000 payable to 517 the aggrieved party. 518 (e)(
d) Any civil action brought under s. 24, Art. X of the 519 State Constitution and this
section is shall be subject to s. 520 768.79. 521
(7) The Attorney General may bring a civil action to 522
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 19 of 25 CODING: Words stricken are deletions; words underlined are additions. enforce this section. The Attorney General may seek injunctive 523 relief. In addition to injunctive relief, or in lieu thereof, 524 for any employer or other person found to have willfully 525 violated this section, the Attorney General may seek to impose a 526 fine of $1,000 per violation, payable to the state. 527 (14)
(8) The statute of limitations for an action brought 528 under pursuant to this
section is shall be for the period of 529 time specified in s. 95.11 beginning on the date the alleged 530 violation occurred. The statute of limitations applicable to an 531 action under this
section is tolled during the department’s 532 investigation and any administrative enforcement under t his 533 section. 534 (15)
(9) Actions brought under pursuant to this
section may 535 be brought as a class action pursuant to Rule 1.220, Florida 536 Rules of Civil Procedure. In any class action brought under 537 pursuant to this section, the plaintiffs must shall prove, by a 538 preponderance of the evidence, the individual identity of each 539 class member and the individual damages of each class member. 540 (16)
(10) This
section is shall constitute the exclusive 541 remedy under state law for violations of s. 24, Art. X of the 542 State Constitution. 543
(17) The department shall make reasonable efforts to ensure 544 that judgments against an employer are satisfied and may use any 545 remedy that is available to a judgment creditor to collect an 546 unsatisfied judgment. The department may collect wages, damages, 547 and other monetary remedies on behalf of an employee. The 548 department acts as the trustee of any unsatisfied judgment it 549 collects and shall deposit such wages, damages, or other 550 monetary remedy in the appropriate fund as provided by rule. Th e 551
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 20 of 25 CODING: Words stricken are deletions; words underlined are additions. department shall conduct a diligent search for any employee for 552 whom it collects an unsatisfied judgment. 553 (18)(
a) Beginning on the 20th day after a judgment is 554 entered by the clerk of the court under paragraph (12)(
d) or 555 otherwise by a court of competent jurisdiction in favor of the 556 department, the department may issue a notice of levy on all 557 persons having in their possession or under their control any 558 credits, money, or property belonging to the judgment debtor. If 559 the levy is made on credits, money, or property in the 560 possession or under the control of a bank, savings and loan 561 association, or other financial institution as defined in 42 562 U.S.C. s. 669a(d)(1), the notice of levy may be mailed or hand -563 delivered to a centralized location designated by the b ank, 564 savings and loan association, or other financial institution. 565 (
b) Any person who receives a notice of levy shall 566 surrender the credits, money, or property to the department or 567 pay to the department the amount of any debt owed within 10 days 568 after service of the levy. Any person who surrenders to the 569 department any credits, money, or property of the judgment 570 debtor is discharged from any obligation or liability to the 571 judgment debtor relating to the amount paid to the department. 572 (
c) Any person who receives a notice of levy from the 573 department and fails or refuses to surrender any credits, money, 574 or property of the judgment debtor is liable to the department 575 for the amount specified in the notice of levy. 576 (
d) Any fees, commissions, expenses, or costs associated 577 with the sale of property levied under this subsection are the 578 obligation of the judgment debtor and may be collected by virtue 579 of the levy or in any other manner as though the fees, 580
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 21 of 25 CODING: Words stricken are deletions; words underlined are additions. commissions, expenses, or costs were part of the judgment. 581 (
e) The department may create a lien on any real or 582 personal property of an employer found in violation of s. 24, 583 Art. X of the State Constitution or this section. The department 584 shall release the lien upon final satisfaction of any judgment 585 entered in favor of an aggrieved party or the department, or 586 upon adjudication of the claim in favor of the employer. A lien 587 created under this paragraph lasts 10 years after the date it is 588 created unless the lien is satisfied or released. A lien created 589 under this paragraph is in addition to any other rights 590 available to an aggrieved party or the department. 591 (19)(
a) If a citation issued by the department, written 592 decision and order issued by an administrative law judge, or 593 final judgment awarded under this
section remains uns atisfied 30 594 days after all reviews and appeals have been exhausted or the 595 time to request a review or file an appeal has expired, the 596 department may issue a stop-order prohibiting the employer from 597 conducting business in the state using employee labor, inc luding 598 conducting business using the labor of another business, 599 contractor, or subcontractor instead of the labor of an 600 employee, until the judgment is satisfied. The stop -order is 601 effective upon receipt of the order and the employer must pay 602 employees up to 10 days of lost wages due to the stop-order. 603 (
b) An employer may appeal the stop-order by filing, within 604 20 days after receipt of the stop-order, a written request with 605 the department for an administrative hearing. The hearing must 606 be held within 5 days after receipt of the written request, at 607 which time the stop-order shall be affirmed or dismissed and the 608 department shall serve a written notice of findings on all 609
Florida Senate - 2022 SB 1756 15-01677-22 20221756__ Page 22 of 25 CODING: Words stricken are deletions; words underlined are additions. parties within 24 hours after the conclusion of the hearing. A 610 party may appeal the written notice of findings to a court of 611 competent jurisdiction within 45 days after the notice is 612 mailed. The department may seek injunctive or other appropriate 613 relief to enforce the stop-order and is entitled to attorney 614 fees and costs if the department prevails. 615 (
c) An employer, owner, director, officer, or managing 616 agent of an employer who fails to comply with a stop -order 617 issued under this subsection is guilty of a misdemeanor of the 618 second degree, punishable as provided in s. 775.082 or s. 619 775.083. 620 (
d) This subsection does not apply if the stop-order would 621 compromise public safety or the life, health, and care of a 622 vulnerable person. 623
(20) If a citation issued by the department, written 624 decision and order issued by an administrative law judge, or 625 final judgment awarded under this
section remains unsatisfied 30 626 days after all reviews or appeals have been exhausted or the 627 time to request a review or file an appeal has expired, the 628 department may request that the appropriate state agency, and 629 the state agency is authorized to, deny, suspend, or revoke any 630 license held by the employer until such time as the judgment is 631 satisfied. 632
(21) Any person acting on behalf of an employer may be held 633 liable as the employer for a violation of s. 24, Art. X of the 634 State Constitution or this section. A client employer is jointly 635 and severally liable with a labor contractor for the payment of 636 unpaid wages, interest, liquidated damages, fines, or penalties 637 awarded under this section. 638
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(22) All employers, client employers, and labor contractors 639 shall create records documenting compliance with s. 24, Art. X 640 of the State Constitution and this
section in accordance with 641 department rules. Records must be maintained for a minimum of 5 642 years after an employee leaves the employment of the em ployer or 643 client employer, or is no longer working with a labor 644 contractor. An employer, client employer, or labor contractor 645 must allow the department reasonable access to the records when 646 requested. If an employee, or other authorized person or entity, 647 alleges a violation of s. 24, Art. X of the State Constitution 648 or this
section and the employer, client employer, or labor 649 contractor has not created and maintained records as required 650 under this subsection, there is a rebuttable presumption that 651 the he or she is in violation of the law. The employer, client 652 employer, or labor contractor can overcome this presumption with 653 clear and convincing evidence. 654
(23) The department may enter into agreements with local, 655 state, or federal agencies to assist in the admin istration and 656 enforcement of this section. 657
(24) Subject to appropriation of funds by the Legislature, 658 the department shall establish and maintain an outreach and 659 education partnership program to promote awareness of, and 660 compliance with, s. 24, Art. X of the State Constitution and 661 this section. The department shall pursue partnerships with 662 community-based organizations and unions through a competitive 663 request for proposals. Duties of the outreach and education 664 partnership program may include: 665 (
a) Disseminating information and conducting outreach and 666 training to educate employees about their rights. 667
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b) Conducting educational training for employers about 668 their obligations. 669 (
c) Assisting employees with filing a claim for a violation 670 under s. 24, Art. X of the State Constitution or this section. 671 (
d) Assisting the department in conducting investigations 672 under this section, including the collection of evidence and 673 enforcement of a judgment. 674 (
e) Monitoring compliance with s. 24, Art. X of the State 675 Constitution and this section. 676 (
f) Establishing networks for education, communication, and 677 participation in the workplace and community. 678 (
g) Producing and disseminating training materials to 679 employers and employees. 680 (25)
(11) Except for calculating the adjusted state minim um 681 wage and publishing the initial state minimum wage and any 682 annual adjustments thereto, the authority of the department of 683 Economic Opportunity in implementing s. 24, Art. X of the State 684 Constitution, pursuant to this section, is shall be limited to 685 that authority expressly granted by the Legislature. 686
Section
Section 448.111, Florida Statutes, is created to 687 read: 688 448.111 Department of Labor Community Advisory Board.—The 689 Department of Labor Community Advisory Board is established 690 within the Department of Labor. 691
(1) The advisory board shall consist of the following 692 members who must be appointed by the Secretary of Labor: 693 (
a) A representative from the Department of Labor. 694 (
b) A representative from the Department of Economic 695 Opportunity. 696
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c) A representative from the Department of Education. 697 (
d) A representative from the Florida Chamber of Commerce. 698 (
e) A representative from a small business as defined in s. 699 288.703. 700 (
f) Four representatives from labor organizations as 701 defined in s. 447.02(1) throughout the state. 702
(2) Members of the advisory board shall be appointed for 2 -703 year terms, which shall be staggered. 704
(3) Members of the advisory board shall serve without 705 compensation and are not entitled to receive reimbursement for 706 per diem or travel expenses. 707
(4) The advisory board shall meet at least three times a 708 year in order to review reports and projects of the Department 709 of Labor. Meetings of the advisory board must be open to the 710 public and provide the opportunity for public comment. 711
(5) The advisory board shall submit an annual report to the 712 Secretary of Labor recommending changes to existing state 713 policies and programs to ensure worker safety and equity, with 714 particular emphasis on low-wage workers, migrant workers, and 715 racial equity. 716
(6) By January 1, 2023, and annually thereafter, the 717 Secretary of Labor shall submit the annual report to the 718 Governor, the President of the Senate, and the Speaker of the 719 House of Representatives. 720