Because state legislation only affects a small percentage of people, I don’t discuss it much on HR Bartender. At least, that’s what I used to think. Two reasons why state laws are important to monitor:
- There is a growing number of remote and hybrid employees. Employers are increasingly able to work from anywhere. This means companies must be familiar with the laws in the state where employees live and work.
- Certain states are starting to be a beacon for others. No matter what your political views, we are starting to see states adopt legislation. Other states will then watch and perhaps follow their lead.
These are the two reasons I am sharing with your new piece of legislation that will be in effect in Florida starting July 1, 2022. The Individual Freedom Act (IFA) is a Florida Civil Rights Act amendment. This law will have implications for employees and employers in Florida. Some states may consider Florida to be a beacon when it comes to legislation.
This particular piece of legislation is worth your attention. It states that discrimination is when someone is subject to learnings or lessons that encourage, advance or compel them to believe in discriminatory concepts. Further, the law defines discriminatory concepts as any person who is disadvantaged or subject to adverse treatment is included.
To help you get a better understanding of the legislation, I spoke to Mia C. Larson. She is a labour and employment associate at Buchanan Ingersoll & Rooney PC, Tampa, Florida. Mia’s practice focuses on labour and employment counselling and litigation services, including state and federal regulatory compliance and employee benefits, tax and change management and employment litigation.
Mia is a lawyer, so please remember that her comments should not be considered legal advice. It would help if you directed any questions to your local labour and employment lawyer.
Mia, thank you so much for coming. When I hear about new legislation, one of my first steps is understanding if it applies to my company or me. Let’s get started with some definitions. While I know these definitions may change over time, let’s focus on what we think they are now.
First, I know that Florida’s Individual Freedom Bill HB.7 can be applied to employment situations. Given the popularity of hybrid and remote work, organizations might want to know if this bill applies only to Florida-based organizations or to any other organization with employees in Florida.
[Larson] The Individual Freedom Act (IFA), which amends the Florida Civil Rights Act, means that any employer subject to the FCRA will also be subject to IFA. The FCRA defines an ’employer’ as anyone who employs 15 or more workers for every working day over 20 weeks of the current or previous calendar year.
This question is more complex because it asks whether the FCRA applies even to non-resident Florida-based organizations with employees who are or have been residents of Florida. The Eleventh Circuit addressed this question in Sinclair, 170 F.3d 1045 (1st Cor. 1999). The Eleventh Circuit ruled in Sinclair that Florida’s definition of an employer does not require all fifteen employees to be located there. Sinclair applies. An organization is an employer for the FCRA and thus the IFA if it has at least 15 employees in any country, regardless of whether those employees are located in Florida.
This analysis may be more difficult if you consider hybrid and remote work. If an organization employs 15 or more people and at least one is physically present in Florida (including remote employees), it can be considered an employer under the FCRA. According to the Eleventh Circuit: “The plain and unambiguous language in the FCRA only requires that an employer employ 15 persons to be considered a statutory employer under section FCRA.” It does not specify where employees must work.
In other words, when determining which employees should count towards the requirement of fifteen employees for an organization to be considered a statutory employer, it will likely apply to any employer that has 15 or more employees (nationwide), at minimum, one of whom is a Florida resident, physically present, and working in Florida. This applies regardless of whether or not the FCRA protects those employees.