Legal Alerts

2021 Florida Labor & Employment Law Year-End Review

Tampa, Fla. (January 11, 2022) – There were several important developments in labor and employment law last year in the State of Florida, including changes to the minimum wage, new hire reporting obligations, and COVID-19 vaccine-related legislation. Below is a summary of these key changes.

Minimum Wage

Florida’s minimum wage increased to $10.00 per hour on September 30, 2021 ($6.98 for tipped employees). On September 30, 2022, the minimum wage will increase to $11.00 per hour, and increase $1 per year thereafter until it reaches $15.00 per hour ($11.98 for tipped employees). After which, it will be adjusted annually based on inflation.

New Hire Reporting

Florida has expanded the new hire reporting obligations for employers starting October 1, 2021.

First, Florida employers must report the hiring of independent contractors who are paid $600 or more in the calendar year in the same way they do for new hires.

Second, Florida has expanded the new hire reporting to all employers. Previously, only large employers (250+ employees) were required to report new hires to a state registry. Florida has expanded that reporting obligation to all employers, regardless of size.

COVID-19 Ambiguity

Florida passed legislation complicating employers’ responses to COVID-19 and creating potential conflicts with their obligations under federal law.

Employers in Florida are now prohibited from requiring their employees to obtain a COVID-19 vaccine without allowing them an opportunity to claim one of several new exemptions, some which are so broad anyone can “opt out.” These include: (a) medical exemption; (b) pregnancy or expectant pregnancy; (c) religious exemption (which includes all seriously held religious, ethical, and moral beliefs); (d) showing that they have recently recovered from a COVID-19 infection; (e) undergoing periodic testing at their employer’s expense; OR (f) agreeing to wear a mask. Employers must cover the costs of testing and PPE for employees that select those exemptions. Florida even provided forms for each of these purposes, linked below:

If an employer does not accept an employee’s properly completed exemption form and terminates an employee for refusing to obtain a vaccine, the employer faces significant fines. Small businesses (defined as those with 99 employees or less) can be fined $10,000 per violation. Businesses with more than 100 employees will face a $50,000 per violation fine.

Additionally, Florida laws prohibit retaliatory actions against employees who object to or refuse to participate in conduct of their employer that they believe is a violation of a law, rule, or regulation.

The federal government is already claiming its rules and regulations preempt state law. However, a federal court will need to determine whether state law is actually preempted. The federal mandates are being challenged in various states and their status is also uncertain. Finally, preemption will only preclude enforcement of state law if there is an actual conflict between state and federal law. For example, Florida’s requirement that the employer pay for testing will likely not be preempted.

Employers who face competing and contradictory instructions from the federal and state governments will need to carefully review their options and risks when developing COVID-19 response programs. For more information on these new laws, contact the authors of this alert or visit our COVID-19 Response Resource Center to find an attorney in your area.

Not Directly Employment Law, But Positive Nonetheless

On an encouraging note to start off the year, the Florida court system made several positive changes in 2021.

First, Florida finally adopted the Apex Doctrine protections for high level company officials. Historically, Florida state courts allowed plaintiffs to depose a defendant’s senior executives regardless of whether they have personal knowledge of the underlying claim, which was used by some plaintiff’s counsel as an attempt to exert pressure on the defendant. Notably, this practice is not allowed in federal court under the so called “Apex Doctrine.” The Florida Supreme Court has finally adopted the “Apex Doctrine.” On August 26, 2021, the court amended the Florida Rules of Civil Procedure following a certified question of the First District Court of Appeal in Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019).

Second, Florida has also adopted a new standard for summary judgment that is closer to federal law. Under the previous standard, it was more difficult to obtain summary judgment in Florida state courts than in federal court. It is hopeful that with the new standard, employers will have a better chance of obtaining a judgment in their favor without having to go through the expense and risk of trial.

For more information on these developments, contact the authors of this alert. Visit our Labor & Employment Practice page for additional alerts in this area.

Authors:

David S. Harvey, Jr., Partner

Sarah Hock, Associate

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