Did Florida Make It Illegal To Refuse To Hire White Nationalists, and Yet Make Affirmative Action And CRT Legal? The Utter Stupidity of the Stop WOKE Act.

 The Florida legislature, in its infinite wisdom, has decided to modify Florida's anti-discrimination statute with the Stop WOKE Act. /1

There's a lot stupid about this, but let's unpack some of the most idiotic parts. 

The Whole Thing Is Opposite What They Meant

As has been the Florida Legislature's practice this session, the whole thing says the opposite of what they probably meant. Because the way it reads looks like the entire list (I put the whole list in a footnote below) is something the legislature believes is not discrimination, and should not be taught as such. But what they may have actually meant is that they think the entire list actually is discrimination. They wrote that, "Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section" is illegal.

But what they should have written instead is: "Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section" is illegal.

Is it illegal to discriminate against white nationalists?

What really jumps out at me is that employers are not allowed to refuse to hire someone who believes that, "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin." We're talking white nationalists here. As I read this, employers can't refuse to hire white nationalists in Florida. Taking out all the qualifiers, other types of discrimination, and weaselly language, here's what it says is one of the things that is illegal with respect to race discrimination: 

Subjecting any individual, as a condition of employment, to any required activity that compels such individual to believe the following concept constitutes discrimination based on race: 

1. Members of one race are morally superior to members of another race.

Since white nationalists, by definition, believe whites are superior in every way to non-whites, that means employers can't refuse to hire (or fire once they find out about their beliefs) white nationalists? This is what happens when you put in language deliberately meant to confuse and obfuscate your intent. 

Is Discrimination Based On Your Ancestors' Race Now Legal?

Let's look at another provision that says something stupid. 

The legislature also says that this concept is not discrimination: 

"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." 

So now it's also illegal to refuse to hire or fire anyone who believes that they should discriminate against employees or potential employees because of actions committed in the past by other members of the same race, color, sex, or national origin. Did they mean this? Or is it just too many double negatives? Who knows? It's the law now in Florida.

Is Affirmative Action Now Legal?

I think they also just made affirmative action legal, since they say this is not discrimination:

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.

Hello affirmative action.

Wait, I Thought They Were Against Critical Race Theory

The legislature also decided that employers are not allowed to refuse to hire someone who believes in some key tenets of Critical Race Theory. They also decided that employers can't subject employees to training that says Critical Race Theory is discrimination. Don't believe me? Look at the wording and tell me I'm wrong.

/1The statute now has this language added to it:

760.10 Unlawful employment practices.— 

(8)(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section: 

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. 

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously. 

3. 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. 

4. 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. 

5. 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.  

6. 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. 

7. 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. 

8. 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. 

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts. 

New Bills In Florida That Will Impact #Employees If Passed

The Florida legislature is in session through May. They may or may not pass some legislation that will affect employees and employment law. Be afraid. Be very afraid. Here are some of the bills to watch:

SB 160 - Minimum Wage: Revising the formula for the adjusted state minimum wage, etc.  See HB 945. This is an attempt to slowly bring Florida's minimum wage up to a living wage by adjusting an extra $1 - $1.50 per year until 2021. Since Republicans hate the minimum wage to begin with, it won't pass. 

SCR 194:  The annual and inevitably failing attempt to ratify the Equal Rights Amendment. Sigh.

HB 319:  Discrimination in Labor and Employment: Creates "Helen Gordon Davis Fair Pay Protection Act." This bill, which won't pass. would add gender identity to the categories of illegal discrimination, prohibit pay and other discrimination based on sex and gender identity,  and prohibit employers from punishing employees for discussing and comparing wages and benefits. 

HB 443:  Verification of Employment Eligibility: Requires employers to use E-Verify system to verify employment eligibility; prohibits employer from knowingly or intentionally employing unauthorized alien. This bill really has more of an impact on employers, and criminalizes the hiring of illegal aliens. However, it will make it more difficult for anyone with an accent or foreign-sounding name to get a job if employers become skittish about possible jail time for a bad hiring decision. This one has a shot at getting passed as we continue anti-immigrant fever in this country, but I'm guessing the Chambers and business interests will freak out and oppose it. My prediction is it probably won't pass.

HB 623:  Prohibited Discrimination: Provides that sexual orientation & gender identity are impermissible grounds for discrimination, provides exception for constitutionally protected free exercise of religion.  Related bills are SB 666, HB 659, SB 742. Despite the fact that major corporations and business interests support this, and the fact that it will be good for Florida's tourism and economic interests, this has failed every time it has been attempted. It will fail again.

HB 1255:  Florida Commission on Human Relations. This bill would adjust quorum requirements for the Commission and would make clear that the statute of limitations for suing for discrimination is 4 years from the date of discrimination, which is the law now but is continually the subject of litigation. Mostly, it guts the discrimination provisions regarding private clubs. It could pass.

HB 7047: Would deregulate/change regulations regarding a huge list of professions, including labor organizations.

Guns in workplaces: There is a giant batch of pro-gun legislation pending that could well pass, and it will affect workplace safety and also employee rights to carry. These bills include the right to bring guns to colleges and universities, passenger terminals of airports, public meetings, basically anywhere, career centers,  athletic events of schools and colleges,  the Florida legislature (okay, this would serve them right). Then there's SB 140 and SB 646 that would make Florida an open carry state. If business organizations aren't freaking out and screaming bloody murder, they should be. Can you imagine what will happen if a bunch of Floridians are running around with guns in all these places? Mayhem will ensue. And then there's the one that is the voice in the wilderness that would increase penalties for carrying weapons into schools and school events. It won't pass. Neither will the one adding public theaters and performing arts centers to the list of places you can't carry weapons.

Medical marijuana: Of the many bills relating to marijuana use, not one would protect employees from being fired for using prescribed marijuana, even the low THC kind. For shame.

SB 1208: Would add intentional touching in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering such areas to the crime of sexual battery, which could give sexual harassment victims more ammunition. It's by a Democrat so it probably won't pass.

SB 1148: Unemployment compensation. Would provide for an alternate base period for those currently being screwed out of unemployment benefits for arbitrary calendar reasons, would punish employers who refuse to give wage/employment info (which happens all the time now and delays unemployment benefits by weeks or months) and would add to the reasons an employee can resign and still get benefits. There is no way this will pass. Florida has done everything it can to screw people out of their unemployment benefits and will continue to do so.

HB 575: Threats to kill or do bodily harm. This one will affect many employees. It makes it a felony to post on the Internet or in social media, as well as email, etc. any threat to kill or do bodily harm. This means anyone who posts, "I could just kill my boss for what happened today," or "I could just strangle my coworker," whether or not there was any intent to do the harm and whether or not it was just venting, could face felony charges. This bill could be crazy overbroad and could result in lots of employees ending up in handcuffs. Right now, the threat has to be made to the actual person. Now, if anyone else sees the threat you can be prosecuted.

HB 561: Providing for a veteran's preference tax credit, which may help veterans get employment.

HB 31: Would "ban the box" and prohibit employers from asking about arrests/convictions and from refusing to interview based on criminal arrests and convictions. They can still do background checks once a conditional offer of employment is made. It won't pass.

SB 126: Would loosen the state's anti-nepotism laws. Somebody has a relative who needs a job. Could it be somebody who also wants to turn the state into the wild west? Could be.

HB 11: Would make it way easier to decertify labor organizations/labor unions. It will probably pass.

The good news is there are no bathroom bills this year. Will the legislature do anything to help employees this year? Not likely. I'll let you know if they do.

Florida Democrats Take Another Swing At Pro-Employee Legislation (That Won't Pass)

Another legislative session coming up, some more pro-employee legislation that will not pass. But here’s what some Florida Democrats (okay, I didn’t check them all, but c’mon, what are the odds that any of the co-sponsors of any pro-employee laws are Republicans?) are trying to pass in 2016 to help Florida employees:

$15 minimum wage: SB 6 and HB 109 would raise Florida’s minimum wage to $15/hour

ERA: SCR 74 and HCR 8001 would ratify the Equal Rights Amendment. Better late than never.

Sexual Orientation: SB 120 and HB 45would add sexual orientation and gender identity to prohibited categories of discrimination in the workplace.

Social Media Privacy: SB 186 would prohibit employers from demanding your social media passwords.

Unemployment and Domestic Violence: SB 188 protects employees who leave or lose jobs due to domestic violence from being disqualified for unemployment benefits.

Paid Sick Leave: SB 294 and HB 205 would require state and local governments with at least 9 employees to provide paid sick leave to employees. Why only government employers? I'm really not sure that's what the sponsors meant to do, but that's what it says employers are.

Paid Family Leave: SB 384 and HB 603 would require employers to provide paid leave similar to FMLA for birth or adoption of a child and care in the first year, but it applies to employees who work at least 20 hours a week, applies to employers with at least 15 employees, and would permit up to 6 weeks of protected leave. Creates a rebuttable presumption that any demotion or discharge taken within 90 days against an employee who takes leave is a violation.

Ban the Box: SB 448 and HB 353 would prohibit employers from asking about criminal history in initial employment applications.

If you support any of these bills, start calling and writing your legislators now. Especially the Republicans. If any of these proposed laws get overwhelming support, they may just have a chance. My prediction: DOA.

What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception

I previously wrote about a plethora of bills our legislators filed that might help employees in our anti-employee state. 

Pregnancy:  This is the one silly exception to the utter lack of pro-employee bills by the legislature. It adds "pregnancy" to the list of prohibited types of discrimination under the Florida Civil Rights Act. Only problem is that the Florida Supreme Court already decided pregnancy was protected. Why was the bill necessary? No idea. Here's where it stands as of this writing:

SB 982: Florida Civil Rights Act

GENERAL BILL by Thompson ; (CO-INTRODUCERS) Smith ; Gibson
Florida Civil Rights Act; Prohibiting discrimination on the basis of pregnancy in public lodging and food service establishments and in places of public accommodation; prohibiting employment discrimination on the basis of pregnancy; prohibiting discrimination on the basis of pregnancy by labor organizations, joint labor-management committees, and employment agencies, and in occupational licensing, certification, and membership organizations, etc.
Effective Date: 7/1/2015
Last Action: 5/7/2015 - Signed by Officers and presented to Governor
Location: Presented to Governor

Kudos to all the legislators who at least tried to do something to help Florida's hardworking employees (their names are here if you want to thank them for their efforts). Here's what the legislature's website says happened to the rest of the pro-employee bills (hint: unless it says it was presented to the Governor or the Governor signed it, it's dead):

Overtime: 

HB 455 - Labor Regulations

General Bill by Campbell
Labor Regulations: Designates act as "Florida Overtime Act of 2015"; revises number of hours of labor that comprise legal day's work; revises rates of overtime compensation for labor performed in excess of certain of hours of work; provides that commuting to & from certain locations is not part of day's work; prohibits employer from requiring employee to continue working after employee's shift under certain circumstances; prohibits employer from paying employee for less than amount of contracted hours worked by employee; provides penalties; provides that act does not affect employer's liability under Workers' Compensation Law.
Effective Date: July 1, 2015
Last Event: Withdrawn prior to introduction on Tuesday, February 10, 2015 3:03 PM

 SB 890 - Labor Regulations

General Bill by Bullard
Labor Regulations: Revising the number of hours of labor that comprise a legal day’s work; prohibiting an employer from requiring an employee to continue working after the employee’s shift under certain circumstances; prohibiting an employer from paying an employee for less than the amount of contracted hours worked by the employee; providing penalties; providing that the act does not affect an employer’s liability under the Workers’ Compensation Law, etc.
Effective Date: 07/01/2015

Last Event: 02/27/15 S Withdrawn prior to introduction -SJ 93 on Friday, February 27, 2015 2:48 PM

Sick Time:

SB 1490 - Labor Regulations

General Bill by Thompson
Labor Regulations: Requiring certain employers to provide employees with earned sick and safe leave under certain conditions; providing employer and employee requirements; authorizing an employee to file a civil action under certain conditions; providing penalties, etc.
Effective Date: 07/01/2015

Last Event: 03/03/15 S Introduced -SJ 138 on Tuesday, March 03, 2015 9:31 PM

Fraud:

HB 589 - State Minimum Wage

          General Bill by Jacobs (CO-SPONSORS) Pafford

State Minimum Wage: Prohibits employer or any other party from knowingly procuring labor from any person with intent to defraud or deceive such person; provides penalty.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Bullying:

SB 892: Safe Work Environments

GENERAL BILL by Bullard
Safe Work Environments; Citing this act as the “Safe Work Environment Act”; providing that subjecting an employee to an abusive work environment is an unlawful employment practice; prohibiting retaliation against an employee who has opposed any unlawful employment practice or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding concerning such a claim; limiting an employer’s liability for emotional distress and precluding punitive damages in certain circumstances, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 93
Location: In committee/council (CM)

HB 297 - Safe Work Environments

General Bill by Campbell
Safe Work Environments: Creates "Safe Work Environment Act"; provides that subjecting employee to abusive work environment is unlawful employment practice; prohibits retaliating against employee who has opposed any unlawful employment practice, or who has made charge, testified, assisted, or participated in any manner in investigation or proceeding concerning such claim; provides for vicarious liability for employers in certain circumstances; provides defense; provides for liability for individual employees in certain circumstances; provides defense; provides affirmative defenses; specifies relief available; limits employer's liability for emotional distress & precludes punitive damages in certain circumstances; specifies that provisions may only be enforced by private right of action; provides time limitation on actions; provides that remedies provided shall be in addition to & not in place of other remedies provided in law; provides for screening certain persons public & private school entering instructional areas.
Effective Date: July 1, 2015
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Domestic violence and unemployment:

SB 1096: Unemployment Compensation

GENERAL BILL by Braynon
Unemployment Compensation; Clarifying application of a provision relating to disqualification for benefits; providing that certain victims of domestic violence may not be disqualified for benefits for voluntarily leaving work, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 108
Location: In committee/council (CM)

Intern sexual harassment:

HB 433: Employment Discrimination

GENERAL BILL by Geller
Employment Discrimination; Includes unpaid interns within definition of term "employee" for purposes of Florida Civil Rights Act of 1992.
Effective Date: 7/1/2015
Last Action: 3/3/2015 House - Introduced -HJ 37
Location: In committee/council (CJS)

Fair pay:

SB 98: Employment Discrimination

GENERAL BILL by Joyner ; (CO-INTRODUCERS) Sachs ; Soto
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; requiring that the award be given annually to employers in this state which have engaged in activities that eliminate the barriers to equal pay for equal work for women, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 39
Location: In committee/council (CM)

Increase state minimum wage:

HB 47 - State Minimum Wage

General Bill by Stafford (CO-SPONSORS) Cortes, J.; Watson, B.; Watson, C.
State Minimum Wage: Increases state minimum wage; provides that an employer may not pay employee at rate less than state minimum wage; deletes requirement that only individuals entitled to receive federal minimum wage are eligible to receive state minimum wage.
Effective Date: January 1, 2016
Last Event: 1st Reading on Tuesday, March 03, 2015 10:37 PM

Social media privacy:

SB 126 - Social Media Privacy

General Bill by Clemens (CO-SPONSORS) Latvala
Social Media Privacy: Prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances; prohibiting an employer from taking retaliatory personnel action for an employee’s refusal to allow access to his or her social media account; authorizing civil action for a violation; specifying that an employer is not prohibited from seeking access to social media accounts used primarily for the employer’s business purposes, etc.
Effective Date: 10/01/2015
Last Event: 03/03/15 S Introduced -SJ 41 on Tuesday, March 03, 2015 7:55 AM

Ban the box:

SB 214: Discrimination in Employment Screening

GENERAL BILL by Clemens ; (CO-INTRODUCERS) Bullard ; Smith
Discrimination in Employment Screening; 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, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 46
Location: In committee/council (CM)

Sexual orientation discrimination: This was the one bill I predicted might pass due to bipartisan support and support by major Florida corporations. It's DOA anyhow.

SB 156: Prohibited Discrimination

GENERAL BILL by Abruzzo ; (CO-INTRODUCERS) Bullard ; Ring ; Margolis ; Soto
Prohibited Discrimination; Creating the “Florida Competitive Workforce Act”; revising provisions to include sexual orientation and gender identity or expression and the perception of race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status as impermissible grounds for discrimination; adding sexual orientation and gender identity or expression as impermissible grounds for discrimination, etc.
Effective Date: 7/1/2015
Last Action: 3/3/2015 Senate - Introduced -SJ 42


Location: In committee/council (JU)

More Pro-Employee Bills To Watch In The Florida Legislature

To their credit, some Florida legislators are doing their darndest to try to fix Florida's anti-employee legal climate. I wrote about some pro-employee bills filed, and now there are some more to keep an eye on this legislative session:

Banning employer fraud: A bill proposed would make it illegal for an employer to procure an employee's services fraudulently, and also beefs up anti-retaliation provisions for employees who complain about unpaid wages.

Pregnancy discrimination: Two identical bills would add pregnancy to the protected classes under the Florida Civil Rights Act. I'm not sure why this is being done in light of the Florida Supreme Court's ruling last year that pregnancy is already protected.

Overtime: Another bill changing Florida's overtime pay law from 10 hours per day to 8 was withdrawn, but this new bill replaces it.

Bullying: A second bill that would ban workplace bullying has been filed.

Unemployment: A bill that would modify unemployment qualifications is a mixed bag. It would protect victims of domestic violence but also would disqualify disabled employees who turn down a reasonable accommodation offered. Disabled employees will now face a trial over their discrimination claims in the unemployment proceeding if this bill passes. Overall, I think it's more anti-employee than pro-employee.

I'll be keeping an eye on these bills during the session. Wanna bet that zero pro-employee bills will pass? I won't hold my breath that this legislature or governor would do anything to help the majority of its working citizens.

Employment Law Bills Pending In The Florida Legislature

Since I've been writing about states that have pro-employee laws, and complaining about the lack of protections for employees in Florida law, I thought you'd like to hear about some legislation that has been filed in the Florida legislature for the upcoming session. Will any of it pass? Doubtful. Still, now might be a good time to contact your representatives and state senators to support some of these laws:

Intern Sexual Harassment: Rep. Joseph Geller has proposed a law expanding the Florida Civil Rights Act to include unpaid interns. Why? Because we currently have no laws in Florida prohibiting sexual harassment of interns. Who will come out in favor of sexual harassment of our teenagers? Stay tuned.

Florida Overtime Act: This proposed law revises the number of hours of labor that is a full legal day's work from 10 to 8; revises rates of overtime compensation; provides that commuting to and from certain locations is not part of a day's work; prohibits an employer from requiring employee to continue working after punching out; prohibits employers from paying an employee for less than the amount of contracted hours worked by the employee; and provides penalties for violations.

Fair Pay: The Helen Gordon Davis Fair Pay Protection Act would condemn gender-based pay disparity and have the Department of Economic Opportunity and the Florida Commission on Human Relations do research and disseminate information about unequal pay. No remedies for victims, but it could help prove that disparities exist and spread the word about what legal protections women have.

Minimum Wage: A law increasing the state's minimum wage to $10.10 probably doesn't have a snowball's chance.

Social Media Privacy: Right now, Florida employers can get away with demanding employee social media passwords. A law prohibiting this kind of invasion of privacy would make it illegal for employers to demand user names and passwords for personal social media accounts of employees and prospective employees.

Bullying: The Safe Environment Work Act would make employers liable for allowing an abusive work environment to exist. Will Florida join Tennessee in banning workplace bullies? Not likely.

Ban The Box: With this law, Florida would join the many states that ban employers from making prospective employees disclose their criminal history on an employment application. So far 13 states have passed ban-the-box laws.

LGBT Discrimination: One law that might pass, mainly because lots of Florida employers have come out in favor of it and it has bipartisan support, is the law proposing to add sexual orientation and gender identity to the categories of prohibited discrimination under the Florida Civil Rights Act.

Although it isn't specifically related to employment law, there's yet another attempt to pass the Equal Rights Amendment in Florida. The ERA was the first campaign I worked on when I moved here in 1981, and I thought it was a no-brainer. Here we are, 33 years later, with no ERA. Will it pass? No.