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“Anti-Bullying” Bill Becomes Law; Paid Leave Law Dies in Committee

“Anti-Bullying” Bill Becomes Law; Paid Leave Law Dies in Committee

Date Published: 2008-08-01
Author: Christina Harris Schwinn

The Florida Legislature meets each year generally beginning on the first Monday of March and concludes 60 days thereafter. The bills that were passed by both houses of the Legislature are then forwarded to the Governor’s office for action. The Governor has 15 days to take action on a bill that has been forwarded to his office. If the Governor does not veto the bill within what is known as the veto period, the bill becomes law.

This article addresses two bills that were considered during the most recent legislative session – one of which passed – that may be of particular interest due to the future impact the two billls may have on Florida employers.

The bill that passed is known as the Jeffrey Johnston Stand up for All Students Act (“Johnston Act”). The Johnston Act received a significant amount of publicity as the surviving parents of a deceased student championed it following their son’s suicide. The parents attributed their son’s suicide as a result of being bullied by other students both in person and via the internet. While the Johnston Act applies to public K through 12 educational institutions, there is speculation among employment lawyers that similar bills may be introduced in the future that would require employers to prohibit such behavior in the workplace. While the Johnston Act’s goals are laudable, their achievability remains to be seen. The Johnston Act defines bullying and harassment as follows:

(a) “Bullying” means systematically and chronically inflicting physical hurt or psychological distress on one or more students and may involve:

1. Teasing;
2. Social exclusion;
3. Threat;
4. Intimidation;
5. Stalking;
6. Physical violence;
7. Theft;
8. Sexual, religious or racial harassment;
9. Public humiliation; or
10. Destruction of property.

(b) “Harrasment” means any threatening, insulting or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that:

1. Places a student or school employee in reasonable fear of harm to his or her person or damage to his or her property;
2. Has the effect of substantially interfering with a student’s educational performance, opportunities or benefits; or
3. Has the effect of substantially disrupting the orderly operation of a school.

The problem the Florida public school system now faces is trying to define what each of the above-referenced elements actually mean. When does teasing cross the line and become bullying or harassment?

School bullies typically grow up to be bullies in their adult lives and often bring their bullying tactics and behavior into the workplace.

Many employment lawyers are predicting that, in future years, legislation similar to the Johnston Act will be introduced in the Florida Legislature. When and if such legislation would pass is anybody’s guess. In the meantime, employers would be well served by fostering workplace policies that reward employees for being civil with one another and penalize employees who resort to bullying, threatening or intimidation tactics in the workplace to obtain a benefit or control over other employees even when such behavior does not violate anti-discrimination laws as such behavior adversely affects morale and may escalate to the point of violating the law.

Senate Bill 152: Healthy Workers, Healthy Families Act (“Health Act”)

The Health Act did not pass the Florida Legislature this year. Had the bill passed, it would have imposed an obligation on Florida employers in the private sector to provide paid leave benefits to their employees. The Health Act distinguishes between 2 different sizes of employers. The Health Act specifically recognized a distinction between an employer employing fewer than 10 employees and one that employees 10 or more employees.

As for an employer who employs fewer than 10 employees, it would have required an employer to provide an employee with paid sick leave on a basis of 1 hour for each 80 hour period worked which equates to 26 hours a year assuming the employee only works 40 hours a week and 52 full weeks during the year. For an employer with 10 or more employees, it would have required an employer to provide an employee with sick leave pay on a basis of 1 hour for each 40 hour period worked equaling 52 hours a year if the employee worked 40 hours per week, 52 weeks per year. Additionally, employees who regularly worked overtime would be eligible to accrue more paid sick leave.

The Health Act would have provided that employees would begin to accrue paid sick leave on the first day of employment and entitlement to take such paid sick leave beginning on the 90th day of the employee’s employment.

Like the Family Medical Leave Act (“FMLA”), the Health Act, in this particular circumstance, would set forth the circumstances pursuant to which an employee would be eligible to take or request paid leave. The Health Act contained enforcement provisions allowing an employee denied sick leave to sue the employer subjecting it to potential liability for damages. While the Health Act did not pass during the most recent legislative session, the fact that it was introduced may lead to its re-introduction and passage in the future.

As is always the case, following the conclusion of a legislative session, rumors abound regarding what laws were passed by the Florida Legislature and what laws the Governor signed. The Health Act did not pass and the status quo remains the same, i.e. Florida private sector employers, absent a collective bargaining agreement, an employment policy or contract, are not obligated to provide employees with paid sick leave benefits. However, this does not mean that covered Florida private sector employers are not required to allow an eligible employee to take unpaid leave if the employee’s request for leave qualifies for unpaid leave under Florida’s Domestic Violence Leave law or the FMLA of 1995, as amended in 2008.

A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice.

Questions regarding the content of this column or past columns may be e-mailed to Christina Harris Schwinn at christinaschwinn@paveselaw.com. Ms. Schwinn is an experienced employment law attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.