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Florida’s 2015 legislative session started in March with many employment-related measures being introduced. They include:
SB 98, HB 25: Employment Discrimination Creating the Helen Gordon Davis Fair Pay Protection Act recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensuring fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; and requiring that the award be given annually to employers in Florida who have engaged in activities that eliminate barriers to equal pay for equal work for women
SB 114, HB 47: State Minimum Wage Increasing the state’s hourly minimum wage to $10.10.
SB 156, HB 33: Prohibited Discrimination Revising the Florida Civil Rights Act to include sexual orientation and gender identity or expression as protected characteristics; and prohibiting discrimination based on perceived race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status.
SB 192, SB 246, HB 1: Texting While Driving Revising penalties for violations of the Florida Ban on Texting While Driving Law to include enhanced penalties when the violation is committed in a school zone and removing requirement that provisions be enforced as secondary action by law enforcement.
SB 214, HB977: Discrimination in Employment Screening (“Ban the Box”) Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application, unless required to do so by law.
SB 356, HB 121: Employment of Felons Providing incentives for employment of person previously convicted of felony.
SB 456, HB 325: Labor Pools Revising the methods by which labor pools are to compensate day laborers.
SB 528, HB 683: Medical Use of Marijuana Permitting medical use of marijuana and providing licensure requirements for growers and retailers.
SB 890, HB 455: Florida Overtime Act of 2015 Requiring payment of time-and-one-half an employee’s regular rate of pay for all hours worked over eight in a day, over 40 in a work week, or on the seventh day of any workweek.
SB 892, HB 297: Safe Work Environments Subjecting employees to an “abusive work environment” is made an unlawful employment practice, and retaliation for reporting the practice is prohibited.
SB982, HB 625: Discrimination Based on Pregnancy Amending the Florida Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. (The Florida Supreme Court in 2014 held that the Act protects against pregnancy discrimination.)
SB1318, HB 589: State Minimum Wage Making it a third degree felony to procure labor for less than minimum wage, i.e., “with intent to defraud or deceive a person.”
SB1396, HB 433: Employment Discrimination Amending the Florida Civil Rights Act to include unpaid interns within the definition of “employee.”
SB1490, HB 1185: Florida Healthy Working Families Act (“Mini FMLA”) Requiring employers to provide sick and safe leave to employees and creating a complaint procedure, plus a civil cause of action for damages and fees in the event of a violation. Employers of more than nine employees must provide paid sick and safe leave; employers of nine or fewer employees must provide unpaid sick and safe leave.
SB 126: Social Media Privacy Among other things, prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances.
SB 1096: Unemployment Compensation Prohibiting disqualification of victims of domestic violence from receiving benefits if they leave work voluntarily.
Job seekers are not the only ones who may say something inappropriate or botch a question during a job interview. A recent survey by CareerBuilder found that approximately 20% of hiring managers reported that they have asked an interview question only to find out later that asking the question possibly violated the law.
It is important for both interviewer and interviewee to understand what employers have (and don’t have) a legal right to ask in a job interview. Even though their intention may be harmless, hiring managers could be putting themselves at risk for legal action by asking certain questions, that some could argue are discriminatory.
A number of hiring managers responding to the poll said they didn’t know if it was legal to ask job applicants about arrest records. Attorneys familiar with the issue agreed that asking about applicants’ criminal records can be tricky for hiring managers.
The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 designed to help employers understand what they can and can’t ask regarding criminal records.
The EEOC guidance states that an “arrest does not establish that criminal conduct has occurred, and a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
Asking job applicants about their criminal records has become something of a hot employment topic as a growing number of states and municipalities have enacted “ban-the-box” laws that prohibit employers from asking on job applications if job seekers have been convicted of a crime.
Ban-the-box laws generally allow employers to conduct background screenings and ask about convictions later in the employment process—such as during job interviews. However, the constantly changing legal landscape on what employers can and can’t ask on applications and during interviews can confuse and frustrate many hiring managers.
Generally, the best policy is to avoid questions about applicants’ age, marital status, political beliefs, disabilities, ethnicity, religion and family. Some questions that can be legal and seem relevant to the job can be problematic by the way the question is posed. For example, the question “Are you a U.S. citizen?” might seem reasonable if a hiring manager is trying to determine if an applicant is eligible to work in the U.S. However, the better and more legally prudent question is: “Are you eligible to work in the United States?” Asking about a person’s citizenship status could reveal information about ethnic and national origin that could expose employers to complaints of bias.