On June 12, 2007, Florida Governor Charlie Crist signed new legislation that requires employers to provide up to three days of leave to employees who are the victims of domestic violence, or who have a family or household member who is the victim of domestic violence. The law, §741.313, Fla.Stat. (2007), has an effective date of July 1, 2007, and provides for civil damages or equitable relief if an employer fails to comply with the statute. Therefore, employers should take immediate steps to ensure that their leave policies are in compliance with the new law.
The following questions and answers provide a brief highlight of the law's most important provisions.
To whom does the law apply?
The law applies to all employers who employ 50 or more employees, and to all employees who have been employed by the employer for at least 3 months.
What is the law's definition of "domestic violence"?
Under the statute, "domestic violence" is defined as any "assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." The term "family or household member" includes spouses, former spouses, persons related by blood or marriage, persons presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.
How and when must the employee provide notice of leave to the employer?
Except in cases of imminent danger to the health or safety of the employee, or to the health or safety of a family or household member, an employee who wishes to seek leave from work under the new law must provide the employer with "appropriate advance notice" in accordance with the employer's policy. The notice must include "sufficient documentation" of the act of domestic violence as required by the employer. Unfortunately, the new law fails to define what constitutes "sufficient documentation" of the act of domestic violence. Therefore, it is up to the employer to determine whether "sufficient documentation" has been presented by an employee.
What does the new law contemplate the employee using the leave for?
The law permits an employee to seek leave from work to engage in any of the following activities:
- Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
- Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence;
- Obtain services from a victim-services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence;
- Make the employee's home secure from the perpetrator of the domestic violence or to seek new housing to escape the perpetrator; or Seek legal assistance regarding the act of domestic violence or to attend and prepare for court-related proceedings arising from the act of domestic violence.
What are the confidentiality requirements for private employers?
All private employers must keep any information relating to an employee's request for leave on the basis of domestic violence confidential.
Must the leave be with or without pay, and how does it affect the employee's vacation, personal and/or sick leave?
The employer has the discretion to decide whether the three-day leave is with or without pay, but the employee must exhaust all vacation, personal, and sick leave before receiving the three-day leave. However, the statute specifically provides that the employer may waive this requirement.
What kinds of penalties may an employer face for violating the new law?
An employer may not interfere with, restrain or deny the exercise of an employee's right to avail himself or herself of the protections afforded by the new law. If an employer violates the statute, the employee may be entitled to damages for all wages and benefits that would have been due to the employee had the statute not been violated. However, an employee may not recover damages for lost wages and benefits for leave that is without pay.