Fort Lauderdale, Fla. (December 18, 2023) – There were several important developments in labor and employment law last year in the state of Florida. Below is a summary of these key changes.

Minimum Wage

Florida's minimum wage increased to $12.00 per hour on September 30, 2023 ($8.98 for tipped employees). It will continue to increase at the rate of $1 per year until it reaches $15.00 per hour ($11.98 feor tipped employees) in 2026. After reaching $15.00, the minimum wage will be adjusted annually based on inflation.

Mandatory Use of E-Verify

Effective July 1, 2023, all employers with 25 or more employees are required to use federal E-Verify to determine if employees are eligible to work in the United States (I-9 Process). See Section 448.095, Florida Statutes.

Beginning on July 1, 2024, an employer who fails to comply with the E-Verify requirements will be given 30 days to correct non-compliance, after which, a fine of $1,000 per day will be imposed if three or more violations occur in any 24-month period. Violations may also result in suspension or revocation of state licenses, permits, or other authorizations issued by the state.

Here is a FAQ issued by the Florida Department of Revenue regarding reporting on compliance.

Concealed Carry (Firearms) and Employer's Parking Lots

Effective July 1, 2023, a permit allowing an individual to carry a firearm in a concealed manner (aka "concealed carry") is no longer required. See Section 790.251 Florida Statutes.

Further, under the law, an employer cannot:

  1. Condition employment on whether employees are authorized to carry a concealed weapon or their agreement not to have a firearm in a locked private vehicle.
  2. Prohibit employees, customers or invitees from entering parking lots with firearms concealed in their private vehicles.
  3. Discharge or discriminate against employees (or customers) because they exercised their constitutional right to keep and bear arms or engage in self- defense.
  4. Inquire about the presence of firearms inside a private vehicle (or search the vehicle for firearms).
  5. Take any action because of an employee's (or customer's) verbal or written statements regarding the storage of a firearm inside a private vehicle.

The law does not apply to school property, correctional facilities, any property where nuclear powered electricity generation occurs, property where substantial activities involving national defense, aerospace or homeland security occur, property where transportation of combustible or explosive materials occurs or an employer's own vehicles.

A successful plaintiff is entitled to recover reasonable personal costs and losses suffered as a result of the unlawful act. The prevailing party (including employer) is entitled to recover its attorney's fees. Employers and businesses can still prohibit the carrying of firearms within their buildings.

COVID / MASKS / VACCINE STATUS

Employers cannot be required to wear facial coverings, COVID vaccine status or require an employee to take a COVID-19 test.

A limited exception to the facial covering prohibitions is available for health care providers. However, health care practitioners (if they require facial coverings) are required to publish policies and procedures regarding the use of facial coverings that are in compliance with the Florida Agency for Health Care Administration ("AHCA"). The policy and procedure also must be accessible on the home page of the healthcare practitioner's website.
While the statute does not contain a private right of action (the state of Florida is empowered to enforce the statute), it is likely plaintiffs will use the Florida Whistleblowers Act to bring claims for alleged adverse actions because someone complained about a violation of this law.

FMLA Retaliation

On December 13, 2023, the Eleventh Circuit refused to reinstate a FMLA lawsuit against Walgreen's. The facts involve an employee who stated she was unlawfully terminated for seeking FMLA time off to care for a sick child. However, the trial court awarded summary judgment to Walgreen's, stating that the plaintiff had not adequately rebutted Walgreen's arguments that her termination was based on legitimate business reasons including the employee's dishonesty and insubordination.

This has been a key issue for employers who have non-performing employees who are currently utilizing intermittent FMLA or have recently returned to work from an FMLA. Affirming summary judgment in favor of Walgreen's confirms that an employee's performance – or poor performance – is a legitimate business reason for termination and FMLA status does not create an exemption for adequate performance. Doris Lapham v. Walgreen Co. [US Court of Appeals for the Eleventh Circuit case number 21-10491].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.