Text of FL H 319 (2017)

HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 1 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S A bill to be entitled 1 An act relating to discrimination in labor and 2 employment; creating the "Helen Gordon Davis Fair Pay 3 Protection Act"; amending s. 448.07, F.S.; revising 4 provisions prohibiting discrimination on the basis of 5 sex to include discrimination on the basis of gender 6 identity; providing definitions; prohibiting an 7 employer from providing less favorable employment 8 opportunities to employees based on their sex or 9 gender identity; providing exceptions; specifying 10 civil penalties; revising applicability; amending s. 11 448.102, F.S.; prohibiting an employer from taking 12 certain employment actions against employees; creating 13 s. 448.111, F.S.; prohibiting an employer from 14 engaging in certain activities relating to employee 15 wages and benefits or requiring an employee to sign 16 certain waivers; providing an effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. This act may be cited as the "Helen Gordon 21 Davis Fair Pay Protection Act." 22 Section 2. Section 448.07, Florida Statutes, is amended to 23 read: 24 448.07 Wage rate discrimination based on sex or gender 25 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 2 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S identity prohibited.— 26 (1) DEFINITIONS.—As used in this section, unless the 27 context or subject matter clearly requires otherwise, the 28 following terms shall have the meanings as defined in this 29 section: 30 (a) "Business necessity" means an overriding legitimate 31 business purpose that relies on a bona fide factor, as described 32 in subparagraph (2)(a)4., to effectively fulfill such business 33 purpose. 34 (b)(a) "Employee" means any individual employed by an 35 employer, including individuals employed by the state or any of 36 its political subdivisions or instrumentalities of subdivisions. 37 (c)(b) "Employer" means any person who employs two or more 38 employees. 39 (d) "Gender identity" means an individual's identification 40 of self as male, female, a combination of male and female, or 41 neither male or female, regardless of the individual's 42 physiology or assigned sex at birth. 43 (e) "Less favorable employment opportunities" means: 44 1. Assigning or directing an employee to a position or 45 career track in which the work performed requires substantially 46 less skill, effort, and responsibility than the work performed 47 by the majority of individuals in the employee's same occupation 48 and labor market area; 49 2. Assigning the employee work less likely to lead to a 50 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 3 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S promotion or career advancement opportunity; or 51 3. Limiting or depriving an employee of a promotion or 52 career advancement opportunity that would otherwise be available 53 to the employee but for the employee's sex or gender identity. 54 (f)(d) "Rate" with reference to wages means the basis of 55 compensation for services by an employee for an employer and 56 includes compensation based on time spent in the performance of 57 such services, on the number of operations accomplished, or on 58 the quality produced or handled. 59 (g)(e) "Unpaid wages" means the difference between the 60 wages actually paid to an employee and the wages required to be 61 paid to an employee pursuant to subsection (3). 62 (h)(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 (2) DISCRIMINATION BASED ON BASIS OF SEX OR GENDER 67 IDENTITY PROHIBITED.— 68 (a) An No employer may not provide less favorable 69 employment opportunities to employees based on their shall 70 discriminate between employees on the basis of sex or gender 71 identity or pay by paying wages to employees at a rate less than 72 the rate the employer at which he or she pays wages to employees 73 of the opposite sex or a different gender identity for 74 substantially similar equal work on jobs the performance of 75 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 4 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S which requires equal skill, effort, and responsibility, and 76 which are performed under similar working conditions, except 77 when the employer demonstrates the entire wage differential is 78 based on one or more of the following reasonably applied factors 79 when such payment is made pursuant to: 80 1. A seniority system; 81 2. A merit system; 82 3. A system that which measures earnings by quantity or 83 quality of production; or 84 4. A bona fide differential based on any reasonable factor 85 other than sex or gender identity, including, but not limited 86 to, education, training, or experience. This subparagraph only 87 applies if the employer demonstrates that the factor is not 88 based on, or derived from, a sex-based or gender identity-based 89 wage differential, is job related with respect to the position 90 in question, and is consistent with a business necessity. 91 (b) An employer who is paying a wage in violation of this 92 section may not reduce another employee's wage to comply with 93 this section when exercised in good faith. 94 (c)(b) A No person may not shall cause or attempt to cause 95 an employer to discriminate against an any employee in violation 96 of the provisions of this section. 97 (3) CIVIL ACTION FOR UNPAID WAGES.—Any employer or person 98 who violates the provisions of this section is liable to the 99 employee for the amount of the difference between the amount the 100 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 5 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S employee was paid and the amount he or she should have been paid 101 under this section. Nothing in this section allows a claimant to 102 recover more than an amount equal to any his or her unpaid wages 103 while so employed for 1 year prior to the filing of the claim. 104 An action to recover such liability may be maintained in any 105 court of competent jurisdiction by the aggrieved employee within 106 6 months after termination of employment. The court in such 107 action may award to the prevailing party costs of the action and 108 a reasonable attorney attorney's fee. 109 (4) CIVIL PENALTIES FOR VIOLATIONS.— 110 (a) An employer who violates this section is subject to a 111 civil penalty of: 112 1. Up to $2,500 for a first violation. 113 2. Up to $3,000 for a second violation. 114 3. Up to $5,000 for a third and each subsequent violation. 115 (b) In determining the amount of a civil penalty to be 116 assessed under paragraph (a), a court of competent jurisdiction 117 shall consider the severity of the violation. 118 (5) A minority business enterprise, as defined in s. 119 288.703, is exempt from this section. 120 (4) Nothing in this section or in s. 725.07, relating to 121 discrimination based on sex in providing equal pay for equal 122 services performed, is applicable to any employer, labor 123 organization or member thereof, or employee whose employer is 124 subject to the federal Fair Labor Standards Act of 1938, as 125 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 6 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S amended. 126 Section 3. Subsection (4) is added to section 448.102, 127 Florida Statutes, to read: 128 448.102 Prohibitions.—An employer may not take any 129 retaliatory personnel action against an employee because the 130 employee has: 131 (4)(a) Discussed or disclosed the employee's own wages; 132 (b) Inquired about another employee's wages; 133 (c) Discussed another employee's wages if such wages have 134 been voluntarily disclosed by such employee; 135 (d) Requested that the employer provide a reason for the 136 amount of the employee's own wages; or 137 (e) Aided or encouraged another employee to exercise 138 rights under this chapter. 139 Section 4. Section 448.111, Florida Statutes, is created 140 to read: 141 448.111 Prohibited employer activities related to wages 142 and benefits.—An employer may not: 143 (1)(a)1. Screen a job applicant based on prior wages or 144 benefits or require that the applicant's prior wages or benefits 145 satisfy minimum or maximum criteria. 146 2. Request or require as a condition of being interviewed, 147 or as a condition of continued consideration for an employment 148 offer, that an applicant disclose prior wages or benefits. 149 (b) Request or inquire about the prior wages or benefits 150 HB 319 2017 CODING: Words stricken are deletions; words underlined are additions. hb0319-00 Page 7 of 7 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S of an applicant from a current or former employer. However, an 151 applicant may provide written authorization to a prospective 152 employer to confirm such prior wages or benefits after an 153 employment offer with compensation has been made to the 154 applicant. 155 (2) Prohibit an employee from: 156 (a) Discussing or disclosing the employee's own wages; 157 (b) Inquiring about another employee's wages; 158 (c) Discussing another employee's wages if such wages have 159 been voluntarily disclosed by such employee; or 160 (d) Requesting that the employer provide a reason for the 161 amount of the employee's own wages. 162 (3) Require an employee to sign a waiver or any other 163 document that prohibits the employee from: 164 (a) Discussing or disclosing the employee's own wages; 165 (b) Inquiring about another employee's wages; or 166 (c) Discussing another employee's wages if such wages have 167 been voluntarily disclosed by such employee. 168 Section 5. This act shall take effect July 1, 2017. 169