Partner, Christina Harris Schwinn discusses Bills in Pipeline Could Impact Workplace
Now is not the time for business complacency.
The 2014 Legislative Session is approaching, and there’s a slew of state and federal bills that could impact Southwest Florida employers. With debates ranging from workplace bullying to social media privacy and minimum wage, experts said it’s important to stay up-to-date and compliant with these issues.
“It may not be here today, but there’s always tomorrow. And times do change,” said Christina Harris Schwinn, a partner at Pavese Law Firm in Fort Myers.
Pavese Law Firm and Leading Edge Benefit Advisors co-hosted an event Wednesday on topics surrounding employment law. Here are some of the key legislative topics that Schwinn said employers should be following:
Schwinn said anti-bullying bills would require employers to implement policies to prevent bullying in their workplaces. At least one of the proposed bills would make bullying a crime.
“Of all the bills that are pending in Florida, this one causes me the most concern because I don’t know what it means,” Schwinn said.
Schwinn, like most people, doesn’t like bullying in the workplace. But she said defining who’s a bully will be difficult because “it’s not concrete. It’s subjective.” Is someone a bully for being rude to a fellow employee? For talking to everyone in the workplace but ignoring one person? For talking too loudly and intimidating another colleague?
She also said it’s going to place a burden on employers to develop policies to prevent bullying.
Bill Daubmann, senior vice president of My Shower Door based in Fort Myers, said this is one more thing for business owners and HR departments to enforce.
“Like typical government regulations, their intent is very good and understandable,” he said. “However, the government regulations generally place more burden on the business owners.”
Legislators are also working to protect employees from snooping bosses — at least in the sphere of private social media accounts.
Proposed legislation would prohibit employers from requesting or requiring access to social media accounts. This means bosses can’t demand Facebook or other social media passwords to seek personal information on current or prospective employees.
And while Schwinn is amazed that people think their social media postings are private, she warned business owners against obtaining passwords on the basis of TMI — too much information.
“If you want to do a Google search on a prospective candidate, you want to see what’s out there on the public domain, by all means do so,” she said. “But do not ask for their passwords to their private pages.”
Asking for passwords, she said, could get business owners into trouble. For instance, what if they request a social media password, learn that the job candidate has a disability, and then decide not to hire that person for unrelated reasons? Unless the employer can give a valid reason for not hiring the job candidate, Schwinn said, this could lead to the prospective employee filing a charge with the Equal Employment Opportunity Commission.
Brent Stokes, owner of Stokes Marine Inc. based in Fort Myers, said he uses social media to learn about prospective employees. And while he will look at public pages and sometimes send Facebook friend requests, Stokes doesn’t ask for passwords. He said that’s not information the employer needs.
But if Stokes was interviewing for a job, he’d volunteer any information that could help him. He’d want the employer to know as much as possible because the more the employer knows, the less uncertainty there will be. And this, Stokes said, will make him more likely to get hired.
Employment Non-Discrimination Act
This year, the Employment Non-Discrimination Act of 2013 may get some real attention in Congress.
This legislation prohibits employment discrimination on the basis of sexual orientation or gender identity. And while Schwinn said it gets filed every year — and hasn’t gone anywhere — last year’s landmark Supreme Court decision has sparked discussion of it possibly passing. Plus, opinions toward same-sex marriage have been changing nationwide.
In June, the Supreme Court struck down a key provision in the Defense of Marriage Act that had defined marriage as being between a man and a woman. By ruling this section unconstitutional, same-sex couples married in states where same-sex marriage is legal are now entitled to the same tax treatment under federal law as married heterosexual couples.
And as a result, the U.S. Department of Labor released a guidance in September. In general — where the Secretary of Labor has authority to issue regulations, rulings, opinions and exemptions — “spouse” and “marriage” now include same-sex individuals married in a state that legally recognizes same-sex marriages, even if the couple lives in a state that does not recognize their marriage.
“Even though Florida does not recognize same-sex marriages yet — it may be coming, maybe not — doesn’t matter,” Schwinn said.
Therefore, Schwinn said this raises a question locally. If an employee relocates to Southwest Florida and was lawfully married in another state, can he or she have their same-sex spouse on the company’s benefit plans? Schwinn thinks the ultimate answer to that question is yes. She’s recommending that her clients are proactive about this issue and how they’re going to address it in their workplace.
She doesn’t think the Employment Non-Discrimination Act will pass this year, but believes it will eventually pass.
Legislation is looking to increase the minimum wage.
In Congress, the Fair Minimum Wage Act of 2013 seeks a federal wage jump from $7.25 an hour to $10.10 in three stages – an almost immediate increase to $8.20 an hour, an increase to $9.15 one year later and then to $10.10 two years after the first increase. After that, the hourly amount will be determined by the Secretary.
These increases have been faced with debate. President Barack Obama has shown his support. The Congressional Budget Office reported that paying $10.10 an hour would move about 900,000 people above the poverty threshold, but it would also reduce total employment by about 500,000 workers, or 0.3 percent.
Schwinn said she doesn’t buy that drop in employment. “This is the same old tired argument that comes up every time they go to increase the minimum wage,” she said.
There is also Florida legislation to increase the state’s minimum wage to $10.10 an hour. It’s now $7.93 an hour.
“I don’t see a minimum wage bill passing in Florida at $10.10 an hour, not this year anyways,” Schwinn said.
Dan Regelski, director of the Small Business Development Center at FGCU , said he doesn’t know how many people actually work at minimum wage and thinks an analysis should be done.
He believes there needs to be a fair wage, but a minimum wage that’s too high could be devastating to some businesses’ cash flow situation.
“It’s a catch 22,” he said.
Florida Chamber’s agenda
The Florida Chamber of Commerce’s 2014 Competitiveness Agenda is based on areas that business leaders, small businesses and local chambers of commerce identified as important to create more jobs in Florida and lower the cost of living for families and small businesses.
“It really will help ensure that Florida can continue moving forward,” said Edie Ousley, vice president of public affairs for the chamber.
The top five key items addressed in the agenda:
• Lawsuit abuse reform.
• Protecting public pensions.
• Improving Florida’s water resources, both quantity and quality.
• Targeted tax reforms, especially commercial property lease taxes and closing the Internet sales tax loophole.
• Education reform.
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Other state bills to watch
Senate Bill 206: This bill focuses on employment discrimination. Specifically, it provides legislative findings and intent relating to equal pay for equal work for women, and it outlines duties for the Department of Economic Opportunity and Florida Commission on Human Relations.
Senate Bill 220: This will amend the Florida Civil Rights Act to prohibit discrimination on the basis of pregnancy.
Senate Bill 234: This prohibits an employer from inquiring into or considering an applicant’s criminal record on an initial employment application, unless required by law. It’s hoped this will help reduce recidivism and improve economic stability.
Senate Bill 348: This bill will amend statutes to add sexual orientation and gender identity or expression to impermissible grounds for discrimination, among other things.
*Descriptions are based on the bills’ text.
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