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Hiring

Advertising
What are the requirements relating to advertising open positions?

Advertisements may not indicate a preference, limitation, specification, or discrimination on the basis of race, color, religion, sex (including pregnancy), national origin, age, absence of disability (including immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus), sickle-cell trait, or marital status.

Florida’s Civil Rights Act still uses the term “handicap.” This chapter uses “disability” because the terms are construed the same and the term “handicap” is disfavored in the disability rights community. Employers can limit access to an employment or training program based on age if a law or regulation restricts the program to a particular age group.

Further, employers may preclude applications based on marital status if they have an anti-nepotism policy. Finally, employers can restrict access to a position on the basis of religion, sex, national origin, age, absence of a particular disability, or marital status, as long as the basis for restriction is a bona fide occupational qualification reasonably necessary for the performance of the particular employment for which the restriction is imposed.

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

Florida state law does not prohibit private employers from inquiring into an applicant’s or employee’s criminal history, although many municipalities impose restrictions for public employers and, to a lesser extent, private employers. However, Florida’s Civil Rights Act recognizes disparate impact discrimination and is construed similarly to Title VII of the 1964 Civil Rights Act. Thus, to the extent that an employer’s criminal background screening raises disparate impact liability under Title VII, it could also do so under Florida law.  

Employers that are required by a state agency to conduct background screenings must comply with Chapter 435 of the Florida Statutes, including:

  • submitting the employee packet to the Department of Law Enforcement within five days of receipt; and
  • making an annual report (or report on renewal of license or registration) to the agency, demonstrating compliance with Chapter 435.

(b) Medical history

Florida permits physical and medical exams of applicants and employees to determine fitness for a position. However, Florida prohibits screening or testing for the sickle-cell trait. It also prohibits requiring an HIV-related test, unless the absence of HIV is a bona fide occupational qualification. Testing for AIDS, AIDS-related complex, or HIV must a requirement for all applicants of a position, not just those with actual or perceived conditions.

(c) Drug screening

Florida does not prohibit applicant drug screening. Employers can be eligible for discounts on workers’ compensation premiums and employer liability insurance if they comply with the Florida Drug Free Workplace Act, which requires notice, education, and certain procedures prescribed by Florida’s Agency for Healthcare Administration.

(d) Credit checks

Florida has no restrictions on credit checks during the hiring process beyond those within the federal Fair Credit Reporting Act; however, as with criminal background screenings, use of credit checks in hiring decisions can potentially raise disparate impact claims under the Florida Civil Rights Act.

(e) Immigration status

Pursuant to an executive order, contractors with state agencies that are under the governor’s direction must use the Department of Homeland Security’s E-Verify system to verify employment eligibility of any employee hired during the contract term and must require their subcontractors to do the same. Agencies not under the governor’s direction are encouraged to impose the same requirements.

(f) Social media

Florida does not generally prohibit access to social media in evaluating candidates for hire, but the limitations on discrimination based on protected characteristics (e.g., race) apply with respect to information obtained via social media. Florida also recognizes the common law tort of invasion of privacy; thus, if a social media account is private and accessed without permission as part of the hiring process, it could raise invasion of privacy questions.

(g) Other

Pursuant to Florida statute, employers may not condition employment on whether a prospective employee possesses a concealed weapons permit or on an agreement by the prospective employee not to keep a legal firearm locked inside a private motor vehicle in a parking lot when such firearm is kept for lawful purposes.

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

Yes—Section 448.110 of the Florida Statutes (also known as the Florida Minimum Wage Act) and Article X, Section 24 of the Florida Constitution. 

What is the minimum hourly wage?

As of January 1 2015, the Florida minimum wage is $8.05 per hour. The minimum wage rate is recalculated annually on September 30, based on the consumer price index, but did not increase in 2016. 

What are the rules applicable to final pay and deductions from wages?

No Florida law applicable to final pay exists. Employers should be mindful that several local governments have enacted anti-wage theft laws and other local governments have proposed anti-wage theft laws. These ordinances prohibit wage theft and provide administrative procedures and a private cause of action for employees working for private employers.

For most adult workers, no Florida law applicable to deductions from wages exists; thus, federal law applies.  

Hours and overtime
What are the requirements for meal and rest breaks?

Florida does not require meal and rest breaks for adult workers and thus federal law applies for meal and rest breaks. However, Florida has child labor laws relevant to meal and rest breaks (see Fla. Stat. § 450.081). Specifically, minors who are 17 years of age or younger cannot work for more than four consecutive hours without at least a 30-minute meal period. For the purposes of the law, no period of less than 30 minutes is deemed to interrupt a continuous period of work (Fla. Stat. § 450.081(4)).

What are the maximum hour rules?

For most adult workers, there are no limits on daily work hours, as long as minimum wage and overtime laws are observed. However, for day laborers, 10 hours of labor is a legal day’s work. Further, day laborers who perform manual labor are entitled to extra pay for all work performed in excess of 10 hours per day, unless a written contract has been signed by the employee and employer (see Fla. Stat. § 448.01 and Fla. Stat. Ch. 448.20, et seq. (Florida Labor Pool Act)). There are limitations on the hours minors (employees under 18) can work (see Fla. Stat. Ch. 450).  

How should overtime be calculated?

Generally, Florida law requires non-exempt employees to be paid one-and-one-half times their regular rate of pay for any time worked over 40 hours in a working week (seven consecutive days). However, laborers who perform manual labor are entitled to extra pay for all work performed in excess of 10 hours per day, unless a written contract between the employee and employer provides otherwise (see Fla. Stat. § 448.01 and Fla. Stat. Ch. 448.20, et seq. (Florida Labor Pool Act)).  

What exemptions are there from overtime?

Section 448.110(3) of the Florida Statutes incorporates the exemptions to overtime found within Sections 213 and 214 of the Fair Labor Standards Act. Florida has no state-specific exemptions from overtime.

Record keeping
What payroll and payment records must be maintained?

Employers must maintain accurate time and payroll records. Actions to enforce Article X, Section 24 of the Florida Constitution are subject to a four-year statute of limitations and a five-year statute of limitations for willful violations (Fla. Const. art. X, § 24(e)). Thus, employers should consider retaining all time and payroll records for at least five years.

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