August 8, 2022Share
EMPLOYMENT LAW UPDATE – JUNE 2022
Amendment to Florida Civil Rights Act
Under the Florida Civil Rights Act of 1992 (FCRA), Florida employers are prohibited from discrimination against employees on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On April 22, 2022, Florida Governor Ron DeSantis signed into law House Bill 7 (“HB 7”), which will become effective on July 1, 2022. HB 7 amends the FCRA, by adding a new category of employer actions that constitute “unlawful employment practices.”
The additional “unlawful employment practices” added to the Florida Civil Rights Act center around workplace training, pertaining to Diversity, Equity, and Inclusion (“DEI”). The law limits what can be taught in such training programs and how it can be taught. HB 7 states that it is an unlawful employment practice to subject any individual, as a condition of employment, to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe” certain enumerated “concepts.” The concepts are:
- Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
- Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
- Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
Some of the distinctions between the categories are subjective and/or subtle, which can create uncertainty when training on HR employment policies or diversity issues is contemplated. HB 7 states that it is not unlawful to discuss the enumerated concepts as part of a course of training, as long as the training is “given in an objective manner without endorsement of the concepts.” How courts will treat this distinction between discussing the concepts objectively and discussing them in a way that endorses the concepts remains to be seen.
The first lawsuit challenging the legislation has been filed in federal court. The lawsuit argues that HB 7 violates the First Amendment of the U.S. Constitution and that it is so vague that it fails to put a reasonable person on notice of what is prohibited. We will keep our clients advised as the law is implemented starting on July 1, 2022. In the meantime, employers should carefully review their existing DEI policies for compliance.
Ban The Box Law
The Fair Chance to Compete for Jobs Act(“FCA”), became effective on December 20, 2021. The law prohibits certain federal employers and contractors from requiring a job applicant to disclose his or her criminal background on a job application or during an interview prior to a conditional job offer being extended. The FCA applies to federal civilian and defense contractors. Federal contractors are businesses or organizations that enter into a contractual agreement with any department or agency of the United States Government to perform a specific job, supply labor and/or materials, or for the sale of products and services. Prudent federal employers, contractors, and human resources professionals should carefully examine their job applications, job postings, and interviewing policies to ensure compliance with this new federal law.
Under the FCA, federal contractors cannot ask about arrests, indictments, formal criminal charges, sentencing, or sealed or expunged records on an application form or during the interview process. There are some limited exceptions to the FCA.
Florida Reporting Requirement Change
Effective October 1, 2021, Florida employers were required to report newly retained independent contractors in the same manner as they report new employees to the Florida Department of Revenue’s State Directory of New Hires. The law applies to Florida businesses that have paid an independent contractor $600 or more in a calendar year. The information must be submitted within 20 days after their first payment to the independent contractor or the date on which the business and independent contractor entered the contract, whichever is earlier.
Previously, the law only required that employers report newly hired employees to the Department, while reporting independent contractors was optional.
To comply with the law, employers must report the following: the independent contractor’s name; address; Social Security number (or other identifying number assigned under Section 6109 of the Internal Revenue Code); the date services for payment were first performed by the individual; and the name, address, and employer identification number of the service recipient.
The information must be submitted on the Florida New Hire Reporting Center website within twenty days after the first payment to the independent contractor, or the date the business and independent contractor entered into contract, whichever is earlier.
DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.