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 mustshallcontain 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 attorneyattorney’sfee as part of the costs. It is 217 the intent of the Legislature that this provision for attorney 218attorney’sfees 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 attorneyattorney’sfee 242 as part of the costs. It is the intent of the Legislature that 243 this provision for attorneyattorney’sfees 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.