Florida Senate - 2023                                    SB 1026
       
       
        
       By Senator Stewart
       
       
       
       
       
       17-00256-23                                           20231026__
    1                        A bill to be entitled                      
    2         An act relating to discrimination in labor and
    3         employment; providing a short title; amending s.
    4         448.07, F.S.; defining the terms “business necessity”
    5         and “less favorable employment opportunity”;
    6         prohibiting an employer from providing less favorable
    7         employment opportunities to employees based on their
    8         sex or from paying employees at rates less than those
    9         paid to the opposite sex for substantially similar
   10         work; revising applicability; prohibiting employers
   11         from reducing another employee’s wage to avoid
   12         violating wage parity requirements; authorizing the
   13         payment of liquidated damages to an employee in a
   14         civil action; increasing the timeframe during which an
   15         aggrieved employee may bring an action after an
   16         alleged violation occurs; providing construction;
   17         providing civil penalties; creating s. 448.071, F.S.;
   18         prohibiting an employer from engaging in certain
   19         activities relating to wages and benefits; prohibiting
   20         an employer from requiring employees to sign certain
   21         waivers and documents; providing construction;
   22         authorizing an employer to confirm wage or salary
   23         history under certain circumstances; amending s.
   24         448.102, F.S.; prohibiting an employer from taking
   25         certain personnel actions against employees for
   26         specified actions; providing an effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. This act may be cited as the “Senator Helen
   31  Gordon Davis Fair Pay Protection Act.”
   32         Section 2. Section 448.07, Florida Statutes, is amended to
   33  read:
   34         448.07 Wage rate discrimination based on sex prohibited.—
   35         (1) DEFINITIONS.—As used in this section, unless the
   36  context or subject matter clearly requires otherwise, the term
   37  following terms shall have the meanings as defined in this
   38  section:
   39         (a) “Business necessity” means an overriding legitimate
   40  business purpose that relies on a bona fide factor, as described
   41  in subparagraph (2)(a)4., to effectively fulfill that business
   42  purpose.
   43         (b) “Employee” means any individual employed by an
   44  employer, including individuals employed by the state or any of
   45  its political subdivisions or instrumentalities of subdivisions.
   46         (c)(b) “Employer” means any person who employs two or more
   47  employees.
   48         (d)“Less favorable employment opportunity” means:
   49         1.Assigning or directing an employee to a position or
   50  career track in which the work performed requires substantially
   51  less skill, effort, and responsibility than the work performed
   52  by the majority of individuals in the employee’s same occupation
   53  and labor market area;
   54         2.Failing to provide an employee with information about
   55  promotions or advancement in the full range of career tracks
   56  offered by the employer;
   57         3.Assigning the employee work less likely to lead to a
   58  promotion or career advancement opportunity; or
   59         4.Limiting or depriving an employee of a promotion or
   60  career advancement opportunity that would otherwise be available
   61  to the employee but for the employee’s sex.
   62         (g)(c) “Wages” means and includes all compensation paid by
   63  an employer or the employer’s his or her agent for the
   64  performance of service by an employee, including the cash value
   65  of all compensation paid in any medium other than cash.
   66         (e)(d) “Rate,” with reference to wages, means the basis of
   67  compensation for services by an employee for an employer and
   68  includes compensation based on time spent in the performance of
   69  such services, on the number of operations accomplished, or on
   70  the quality produced or handled.
   71         (f)(e) “Unpaid wages” means the difference between the
   72  wages actually paid to an employee and the wages required to be
   73  paid to an employee pursuant to subsection (3).
   74         (2) DISCRIMINATION BASED ON BASIS OF SEX PROHIBITED.—
   75         (a) An No employer may not provide a less favorable
   76  employment opportunity to an employee based on the employee’s
   77  shall discriminate between employees on the basis of sex or pay
   78  the employee by paying wages to employees at a rate less than
   79  the rate the employer pays an employee at which he or she pays
   80  wages to employees of the opposite sex for substantially similar
   81  equal work on a job, jobs the performance of which requires
   82  equal skill, effort, and responsibility, and which is are
   83  performed under similar working conditions, except when the
   84  employer demonstrates that the entire wage differential is based
   85  on one or more of the following reasonably applied factors when
   86  such payment is made pursuant to:
   87         1. A seniority system;
   88         2. A merit system;
   89         3. A system that which measures earnings by quantity or
   90  quality of production; or
   91         4. A bona fide differential based on any reasonable factor
   92  other than sex, including, but not limited to, education,
   93  training, or experience. This subparagraph applies only if the
   94  employer demonstrates that the factor is not based on, or
   95  derived from, a sex-based wage differential; is job-related with
   96  respect to the position in question; and is consistent with a
   97  business necessity. This subparagraph does not apply if the
   98  employee demonstrates that an alternative business practice
   99  exists that would serve the same business purpose without
  100  producing the wage differential.
  101         (b)An employer who pays a wage in violation of this
  102  section may not reduce another employee’s wage to comply with
  103  this section when exercised in good faith.
  104         (c)(b)A No person may not shall cause or attempt to cause
  105  an employer to discriminate against an any employee in violation
  106  of the provisions of this section.
  107         (3) CIVIL ACTION FOR UNPAID WAGES.—Any employer or person
  108  who violates the provisions of this section is liable to the
  109  employee for the amount of the difference between the amount the
  110  employee was paid and the amount he or she should have been paid
  111  under this section, plus liquidated damages. Nothing in this
  112  section allows a claimant to recover more than an amount equal
  113  to his or her unpaid wages while so employed for 1 year prior to
  114  the filing of the claim. An action to recover such liability may
  115  be maintained in any court of competent jurisdiction by one or
  116  more employees on their own behalf or on behalf of other
  117  employees similarly situated the aggrieved employee within 3
  118  years 6 months after the date of the alleged violation
  119  termination of employment. For purposes of this subsection, a
  120  violation occurs when a discriminatory compensation decision or
  121  other practice is adopted, when an employee becomes subject to a
  122  discriminatory compensation decision or other practice, or when
  123  an employee is affected by the application of a discriminatory
  124  compensation decision or other practice, including each time
  125  wages are paid, resulting in whole or in part from such a
  126  decision or practice. The court in such action may award to the
  127  prevailing party costs of the action and a reasonable attorney
  128  attorney’s fee.
  129         (4) CIVIL PENALTIES.—
  130         (a)An employer who violates this section is subject to a
  131  civil penalty:
  132         1.Not to exceed $2,500 for a first violation.
  133         2.Not to exceed $3,000 for a second violation.
  134         3.Not to exceed $5,000 for a third or subsequent
  135  violation.
  136         (b)In determining the amount of a civil penalty to be
  137  assessed under paragraph (a), a court of competent jurisdiction
  138  shall consider the severity of the violation Nothing in this
  139  section or in s. 725.07, relating to discrimination based on sex
  140  in providing equal pay for equal services performed, is
  141  applicable to any employer, labor organization or member
  142  thereof, or employee whose employer is subject to the federal
  143  Fair Labor Standards Act of 1938, as amended.
  144         Section 3. Section 448.071, Florida Statutes, is created to
  145  read:
  146         448.071Prohibited employer activities related to wages and
  147  benefits.—
  148         (1)An employer may not:
  149         (a)Rely on the wage or salary history of a current,
  150  former, or prospective employee in determining the wages or
  151  salary for such individual.
  152         (b)Orally or in writing seek, request, or require the wage
  153  or salary history from a current, former, or prospective
  154  employee as a condition of being interviewed, as a condition of
  155  continuing to be considered for an offer of employment, or as a
  156  condition of employment or promotion.
  157         (c)Orally or in writing seek, request, or require the wage
  158  or salary history of a current, former, or prospective employee
  159  from a current or former employer, except as provided in
  160  subsection (3).
  161         (d)Retaliate against or refuse to interview, hire,
  162  promote, or otherwise employ a current, former, or prospective
  163  employee:
  164         1.Based upon prior wage or salary history.
  165         2.Because the current, former, or prospective employee did
  166  not provide wage or salary history, in accordance with this
  167  section.
  168         3.Because the current, former, or prospective employee
  169  filed a complaint alleging a violation of this section.
  170         (e)Prohibit an employee from:
  171         1.Discussing or disclosing the employee’s own wages;
  172         2.Inquiring about another employee’s wages;
  173         3.Discussing another employee’s wages, if such wages have
  174  been voluntarily disclosed by the other employee; or
  175         4.Requesting that the employer provide a reason for the
  176  amount of the employee’s own wages.
  177         (f)Require an employee to sign a waiver or any other
  178  document that prohibits the employee from:
  179         1.Discussing or disclosing the employee’s own wages;
  180         2.Inquiring about another employee’s wages; or
  181         3.Discussing another employee’s wages, if such wages have
  182  been voluntarily disclosed by the other employee.
  183         (2)This section does not prevent a current, former, or
  184  prospective employee from voluntarily disclosing wage or salary
  185  history, including, but not limited to, for the purposes of
  186  negotiating wages or salary.
  187         (3)An employer may confirm wage or salary history only if,
  188  at the time an offer of employment with compensation is made,
  189  the prospective employee responds to the offer by providing
  190  prior wage information to support a wage higher than that
  191  offered by the employer.
  192         Section 4. Section 448.102, Florida Statutes, is amended to
  193  read:
  194         448.102 Prohibitions.—An employer may not take any
  195  retaliatory or discriminatory personnel action against an
  196  employee because the employee has:
  197         (1) Disclosed, or threatened to disclose, to any
  198  appropriate governmental agency, under oath, in writing, an
  199  activity, policy, or practice of the employer that is in
  200  violation of a law, rule, or regulation. However, this
  201  subsection does not apply unless the employee has, in writing,
  202  brought the activity, policy, or practice to the attention of a
  203  supervisor or the employer and has afforded the employer a
  204  reasonable opportunity to correct the activity, policy, or
  205  practice.
  206         (2) Provided information to, or testified before, any
  207  appropriate governmental agency, person, or entity conducting an
  208  investigation, hearing, or inquiry into an alleged violation of
  209  a law, rule, or regulation by the employer.
  210         (3) Objected to, or refused to participate in, any
  211  activity, policy, or practice of the employer which is in
  212  violation of a law, rule, or regulation.
  213         (4)(a)Discussed or disclosed the employee’s own wages;
  214         (b)Inquired about another employee’s wages;
  215         (c)Discussed another employee’s wages, if such wages have
  216  been voluntarily disclosed by the other employee;
  217         (d)Requested that the employer provide a reason for the
  218  amount of the employee’s own wages; or
  219         (e)Testified or will testify, assisted, or participated in
  220  an investigation or proceeding under this section.
  221         Section 5. This act shall take effect July 1, 2023.