Florida Senate - 2019                                     SB 866
       
       
        
       By Senator Berman
       
       
       
       
       
       31-00989-19                                            2019866__
    1                        A bill to be entitled                      
    2         An act relating to workplace sexual harassment and
    3         sexual assault; creating s. 448.077, F.S.; providing
    4         definitions; prohibiting an employer from requiring an
    5         employee to sign a nondisclosure agreement, waiver, or
    6         other document, as a condition of employment, to
    7         prevent the employee from disclosing sexual harassment
    8         or sexual assault; specifying that such nondisclosure
    9         agreements, waivers, or documents are against public
   10         policy and are void and unenforceable; prohibiting an
   11         employer from discharging or retaliating against an
   12         employee for disclosing or discussing workplace sexual
   13         harassment or sexual assault; providing for relief for
   14         violations of the act; providing for construction;
   15         amending ss. 760.06 and 760.11, F.S.; conforming
   16         provisions relating to the Florida Commission on Human
   17         Relations to changes made by the act; providing an
   18         effective date.
   19          
   20  Be It Enacted by the Legislature of the State of Florida:
   21  
   22         Section 1. Section 448.077, Florida Statutes, is created to
   23  read:
   24         448.077 Nondisclosure agreements that prevent disclosure of
   25  sexual assault or sexual harassment prohibited; exception.—
   26         (1) As used in this section, the term:
   27         (a) “Employee” means any individual employed by an
   28  employer. The term does not include human resources staff,
   29  supervisors, or managers when they are expected to maintain
   30  confidentiality as part of their assigned duties, or individuals
   31  who are requested to maintain confidentiality in connection with
   32  their participation in an open and ongoing investigation into
   33  alleged sexual harassment or sexual assault.
   34         (b) “Employer” has the same meaning as provided in s.
   35  760.02(7).
   36         (c) “Sexual assault” means any type of sexual contact or
   37  behavior that occurs without the explicit consent of the
   38  recipient.
   39         (d) “Sexual contact” means any touching of the sexual or
   40  other intimate parts of a person done for the purpose of
   41  gratifying the sexual desire of either party or a third party.
   42         (e) “Sexual harassment” means unwelcome sexual advances,
   43  requests for sexual favors, sexually motivated physical contact,
   44  or other verbal or physical conduct or communication of a sexual
   45  nature if:
   46         1. Submission to that conduct or communication is made a
   47  term or condition, either explicitly or implicitly, of obtaining
   48  employment;
   49         2. Submission to or rejection of that conduct or
   50  communication by an individual is used as a factor in decisions
   51  affecting that individual’s employment; or
   52         3. Such conduct or communication has the purpose or effect
   53  of substantially interfering with an individual’s work
   54  performance, or of creating an intimidating, hostile, or
   55  offensive work environment.
   56         (2) Except for settlement agreements authorized under
   57  subsection (5), an employer may not require an employee, as a
   58  condition of employment, to sign a nondisclosure agreement,
   59  waiver, or other document that prevents the employee from
   60  disclosing or discussing sexual harassment or sexual assault
   61  occurring in the workplace, at work-related events coordinated
   62  by or through the employer, or between employees, or between an
   63  employer and an employee, off the employment premises. Any such
   64  nondisclosure agreement, waiver, or other document is against
   65  public policy and is void and unenforceable.
   66         (3) It is an unlawful employment practice for an employer
   67  to discharge or otherwise retaliate against an employee for
   68  disclosing or discussing sexual harassment or sexual assault
   69  occurring in the workplace, at work-related events coordinated
   70  by or through the employer, or between employees, or between an
   71  employer and an employee, off the employment premises.
   72         (4) An employee who is required to sign a nondisclosure
   73  agreement, waiver, or other document that is prohibited by this
   74  section as a condition of employment, or is discharged or
   75  otherwise retaliated against in violation of this section, may
   76  file a complaint with the Florida Commission on Human Relations.
   77  Such an employee shall file the complaint in accordance with the
   78  procedures specified in s. 760.11 and is entitled to the same
   79  relief as provided under that section for violations of the
   80  Florida Civil Rights Act of 1992.
   81         (5) This section does not prohibit the inclusion of
   82  confidentiality provisions in a settlement agreement between an
   83  employee or former employee alleging sexual harassment and an
   84  employer.
   85         Section 2. Subsection (14) is added to section 760.06,
   86  Florida Statutes, to read:
   87         760.06 Powers of the commission.—Within the limitations
   88  provided by law, the commission shall have the following powers:
   89         (14) To receive, and act upon, any complaints alleging a
   90  violation of s. 448.077.
   91         Section 3. Subsections (1), (3), (4), (5), (6), and (7) of
   92  section 760.11, Florida Statutes, are amended to read:
   93         760.11 Administrative and civil remedies; construction.—
   94         (1) Any person aggrieved by a violation of ss. 760.01
   95  760.10 may file a complaint with the commission within 365 days
   96  of the alleged violation, naming the employer, employment
   97  agency, labor organization, or joint labor-management committee,
   98  or, in the case of an alleged violation of s. 760.10(5), the
   99  person responsible for the violation and describing the
  100  violation. Any person aggrieved by a violation of s. 448.077 or
  101  s. 509.092 may file a complaint with the commission within 365
  102  days of the alleged violation naming the person responsible for
  103  the violation and describing the violation. The commission, a
  104  commissioner, or the Attorney General may in like manner file
  105  such a complaint. On the same day the complaint is filed with
  106  the commission, the commission shall clearly stamp on the face
  107  of the complaint the date the complaint was filed with the
  108  commission. In lieu of filing the complaint with the commission,
  109  a complaint under this section may be filed with the federal
  110  Equal Employment Opportunity Commission or with any unit of
  111  government of the state which is a fair-employment-practice
  112  agency under 29 C.F.R. ss. 1601.70-1601.80. If the date the
  113  complaint is filed is clearly stamped on the face of the
  114  complaint, that date is the date of filing. The date the
  115  complaint is filed with the commission for purposes of this
  116  section is the earliest date of filing with the Equal Employment
  117  Opportunity Commission, the fair-employment-practice agency, or
  118  the commission. The complaint must shall contain a short and
  119  plain statement of the facts describing the violation and the
  120  relief sought. The commission may require additional information
  121  to be in the complaint. The commission, within 5 days of the
  122  complaint being filed, shall by registered mail send a copy of
  123  the complaint to the person who allegedly committed the
  124  violation. The person who allegedly committed the violation may
  125  file an answer to the complaint within 25 days of the date the
  126  complaint was filed with the commission. Any answer filed shall
  127  be mailed to the aggrieved person by the person filing the
  128  answer. Both the complaint and the answer shall be verified.
  129         (3) Except as provided in subsection (2), the commission
  130  shall investigate the allegations in the complaint. Within 180
  131  days of the filing of the complaint, the commission shall
  132  determine if there is reasonable cause to believe that
  133  discriminatory practice has occurred in violation of the Florida
  134  Civil Rights Act of 1992 or that an unlawful employment practice
  135  has occurred in violation of s. 448.077. When the commission
  136  determines whether or not there is reasonable cause, the
  137  commission by registered mail shall promptly notify the
  138  aggrieved person and the respondent of the reasonable cause
  139  determination, the date of such determination, and the options
  140  available under this section.
  141         (4) In the event that the commission determines that there
  142  is reasonable cause to believe that a discriminatory practice
  143  has occurred in violation of the Florida Civil Rights Act of
  144  1992 or that an unlawful employment practice has occurred in
  145  violation of s. 448.077, the aggrieved person may either:
  146         (a) Bring a civil action against the person named in the
  147  complaint in any court of competent jurisdiction; or
  148         (b) Request an administrative hearing under ss. 120.569 and
  149  120.57.
  150  
  151  The election by the aggrieved person of filing a civil action or
  152  requesting an administrative hearing under this subsection is
  153  the exclusive procedure available to the aggrieved person
  154  pursuant to this act.
  155         (5) In any civil action brought under this section, the
  156  court may issue an order prohibiting the discriminatory practice
  157  or unlawful employment practice and providing affirmative relief
  158  from the effects of the practice, including back pay. The court
  159  may also award compensatory damages, including, but not limited
  160  to, damages for mental anguish, loss of dignity, and any other
  161  intangible injuries, and punitive damages. The provisions of ss.
  162  768.72 and 768.73 do not apply to this section. The judgment for
  163  the total amount of punitive damages awarded under this section
  164  to an aggrieved person shall not exceed $100,000. In any action
  165  or proceeding under this subsection, the court, in its
  166  discretion, may allow the prevailing party a reasonable
  167  attorney’s fee as part of the costs. It is the intent of the
  168  Legislature that this provision for attorney’s fees be
  169  interpreted in a manner consistent with federal case law
  170  involving a Title VII action. The right to trial by jury is
  171  preserved in any such private right of action in which the
  172  aggrieved person is seeking compensatory or punitive damages,
  173  and any party may demand a trial by jury. The commission’s
  174  determination of reasonable cause is not admissible into
  175  evidence in any civil proceeding, including any hearing or
  176  trial, except to establish for the court the right to maintain
  177  the private right of action. A civil action brought under this
  178  section shall be commenced no later than 1 year after the date
  179  of determination of reasonable cause by the commission. The
  180  commencement of such action shall divest the commission of
  181  jurisdiction of the complaint, except that the commission may
  182  intervene in the civil action as a matter of right.
  183  Notwithstanding the above, the state and its agencies and
  184  subdivisions shall not be liable for punitive damages. The total
  185  amount of recovery against the state and its agencies and
  186  subdivisions shall not exceed the limitation as set forth in s.
  187  768.28(5).
  188         (6) Any administrative hearing brought pursuant to
  189  paragraph (4)(b) shall be conducted under ss. 120.569 and
  190  120.57. The commission may hear the case provided that the final
  191  order is issued by members of the commission who did not conduct
  192  the hearing or the commission may request that it be heard by an
  193  administrative law judge pursuant to s. 120.569(2)(a). If the
  194  commission elects to hear the case, it may be heard by a
  195  commissioner. If the commissioner, after the hearing, finds that
  196  a violation of the Florida Civil Rights Act of 1992 or s.
  197  448.077 has occurred, the commissioner shall issue an
  198  appropriate proposed order in accordance with chapter 120
  199  prohibiting the practice and providing affirmative relief from
  200  the effects of the practice, including back pay. If the
  201  administrative law judge, after the hearing, finds that a
  202  violation of the Florida Civil Rights Act of 1992 or s. 448.077
  203  has occurred, the administrative law judge shall issue an
  204  appropriate recommended order in accordance with chapter 120
  205  prohibiting the practice and providing affirmative relief from
  206  the effects of the practice, including back pay. Within 90 days
  207  of the date the recommended or proposed order is rendered, the
  208  commission shall issue a final order by adopting, rejecting, or
  209  modifying the recommended order as provided under ss. 120.569
  210  and 120.57. The 90-day period may be extended with the consent
  211  of all the parties. An administrative hearing pursuant to
  212  paragraph (4)(b) must be requested no later than 35 days after
  213  the date of determination of reasonable cause by the commission.
  214  In any action or proceeding under this subsection, the
  215  commission, in its discretion, may allow the prevailing party a
  216  reasonable attorney attorney’s fee as part of the costs. It is
  217  the intent of the Legislature that this provision for attorney
  218  attorney’s fees be interpreted in a manner consistent with
  219  federal case law involving a Title VII action.
  220         (7) If the commission determines that there is not
  221  reasonable cause to believe that a violation of the Florida
  222  Civil Rights Act of 1992 or s. 448.077 has occurred, the
  223  commission shall dismiss the complaint. The aggrieved person may
  224  request an administrative hearing under ss. 120.569 and 120.57,
  225  but any such request must be made within 35 days of the date of
  226  determination of reasonable cause and any such hearing shall be
  227  heard by an administrative law judge and not by the commission
  228  or a commissioner. If the aggrieved person does not request an
  229  administrative hearing within the 35 days, the claim will be
  230  barred. If the administrative law judge finds that a violation
  231  of the Florida Civil Rights Act of 1992 or s. 448.077 has
  232  occurred, he or she shall issue an appropriate recommended order
  233  to the commission prohibiting the practice and recommending
  234  affirmative relief from the effects of the practice, including
  235  back pay. Within 90 days of the date the recommended order is
  236  rendered, the commission shall issue a final order by adopting,
  237  rejecting, or modifying the recommended order as provided under
  238  ss. 120.569 and 120.57. The 90-day period may be extended with
  239  the consent of all the parties. In any action or proceeding
  240  under this subsection, the commission, in its discretion, may
  241  allow the prevailing party a reasonable attorney attorney’s fee
  242  as part of the costs. It is the intent of the Legislature that
  243  this provision for attorney attorney’s fees be interpreted in a
  244  manner consistent with federal case law involving a Title VII
  245  action. In the event the final order issued by the commission
  246  determines that a violation of the Florida Civil Rights Act of
  247  1992 or s. 448.077 has occurred, the aggrieved person may bring,
  248  within 1 year of the date of the final order, a civil action
  249  under subsection (5) as if there has been a reasonable cause
  250  determination or accept the affirmative relief offered by the
  251  commission, but not both.
  252         Section 4. This act shall take effect October 1, 2019.