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Did you watch the Democratic presidential debate on October 13, 2015? If so, you heard the candidates make many promises, among them paid family leave.
True, we already have the FMLA, but it only requires unpaid leave, it only applies to employers with 50 or more employees, and it only applies to employees who have worked for 12 months and 1,250 hours in the 12 months preceding leave.
President Obama also signed an Executive Order on September 7, 2015, requiring federal contractors to allow employees to accrue paid sick leave for specified circumstances.
Proponents of paid leave want more.
According to Bernie Sanders, “every other major country” has paid family leave. On that point, perhaps he’s right. In 2014, the International Labor Organization (an agency of the United Nations) revealed that the United States is among a very small handful of countries that does not provide paid maternity leave. We share that “distinction” with countries like Papua New Guinea.
Addressing a primary concern among opponents of paid family leave, Hillary Clinton believes that “we can design a system and pay for it that does not put the burden on small business.”
Here in Florida, on September 9, 2015, State Senator Dwight Bullard introduced SB 384, titled “Paid Family Care Leave,” which is designed to provide Florida employees with 6 weeks of paid leave to bond with an employee’s newborn child or a child placed with an employee for foster care or adoption.
If it passes, here’s how the state law will work:
Covered Employers: “Employer” is defined the same as under the Florida Civil Rights Act of 1992 — any person employing 15 or more employees in 20 or more calendar weeks in the current or preceding calendar year.
Covered Employees: Any person (but not an independent contractor) who performs work for an average of 20 or more hours per week for an employer. Notably, the law would grant leave rights to employees ineligible for FMLA leave.
Type Of Leave Permitted: An employee could take family care leave for up to 6 weeks to bond with his or her minor child during the 1st year after the birth or placement of the child with the employee for foster care or adoption.
Paid or Unpaid: Paid, and without any loss of benefits or privileges of employment.
Leave Runs Concurrently With FMLA: The 6 weeks of paid leave would run concurrently with FMLA leave, so an employee would not be entitled to his/her 12 weeks of FMLA leave plus an additional 6 weeks of family care leave under state law.
Adverse Action Prohibited: An employer would be prohibited from retaliating against an employee who requested or took family care leave.
Employer Notice Requirements: An employer would be required to notify employees of their entitlement to family care leave and their rights under the law. An employer would be able to comply with its notice obligations by using a poster or model notice developed by the Department of Economic Opportunity.
Rebuttable Presumption: There would be a rebuttable presumption of a violation if an employer were to take adverse action against an employee within 90 days after the employee engaged in protected activity. The rebuttable presumption could be overcome by “clear and convincing evidence.”
Civil Actions & Penalties: Violation of the law would result in a fine of up to $125 for the 1st violation and up to $250 for each subsequent violation. An employee also could file a civil action in court without exhausting any administrative remedies, and could be awarded: (i) the monetary value of the denied leave; (ii) actual economic damages sustained; (iii) up to 3 times the actual economic damages; (iv) attorneys fees and costs; and (v) other relief, such as reinstatement of employment, back pay, and injunctive relief. The Department of Economic Opportunity also could investigate an alleged violation and bring a civil action on the employee’s behalf (or ask the Attorney General to bring an action).
Bad Faith Actions: A bad faith action commenced by an employee would be a 1st degree misdemeanor.
SB 384 was referred to committee on October 9, 2015. Given the current make-up of the Florida legislature, the prospects for passage of the bill may not be great, but we’ll nevertheless continue to keep our eye on its status and advise you of any significant developments.