Polarizing Bill Preempting Municipalities From Regulating Employers Clears 1st Senate Hurdle

Mar 14, 2019

A bill that would prohibit local governments from regulating any requirements imposed on employers relating to minimum wage and conditions of employment cleared its first hurdle in the Florida Senate Tuesday in a party line vote.

Sarasota Republican Joe Gruters, Chairman of the Florida Republican Party, filed SB 432 and introduced it to the Florida Senate Committee on Governmental Oversight and Accountability on Tuesday afternoon.

“Predictive scheduling ordinances are the most recent examples of excessive local regulation that could jeopardize Florida’s business friendly environment,” Gruters said.

Predictive scheduling ordinances require employers to give employees advance notice of their schedules. Under those rules, employers could be subject to fines if they change their employees’ schedules within an allotted time frame.

“Florida should empower employers to work collaboratively with their employees on policies that promote flexibility and economic growth,” Gruters went on to say. “We should resist government mandates that increase the cost of doing business in our state. This bill addresses these workplace issues by creating a standard for all employers.”

Gruters believes municipalities should have the flexibility to hire their own employees and put conditions on them, but when it comes to private businesses, local governments shouldn’t be able to enact laws that don’t align with the state’s.

When asked if cities or counties should be able to approve a “living wage” for workers, Gruters responded by admitting wage is one of the employment conditions outlined in this legislation, but the bill is designed to specifically address predictive scheduling.

“It was my understanding, and I could be wrong, but I thought this does prevent a city or a county from approving a living wage, but you just said it doesn’t,” said Boca Raton Democrat Kevin Rader, Vice Chair of the committee.

“It does preempt the state regulations under conditions of employment and wages are included,” Gruters replied. “However, right now you cannot have a minimum wage above the state minimum wage at a local municipality. That’s why this deals with predictive scheduling in particular, because wages are already covered under state law.”

“What this legislation is doing is essentially exploding the statute and creating an incredibly broad nebulous cloud around the issue of what is preempted to the state and what is still in the jurisdiction of local governments,” said Rich Templin, Director of Politics and Public Policy with the Florida AFL-CIO (American Federation of Labor - Congress of Industrial Organizations), a state federation made up of more than 500 local labor unions and labor councils that represents more than a million Floridians.

“It seems like a very simple piece of legislation - it’s a page-and-a-half long,” Templin said. “The problem is that the nebulous nature of it, the general nature of the definition of ‘conditions of employment’ made it difficult to understand exactly what the bill did and what the bill didn’t do.”

The bill defines “conditions of employment” as:

“...those terms that form the basis of the relationship between an employer and a prospective or actual employee, including, but not limited to: pre employment screening; job classification; job responsibilities; hours of work; scheduling and schedule changes; wages; payment of wages; leave; paid or unpaid days off for holidays, illness, vacations, and personal necessity; and employee benefits, such as retirement, profit-sharing, health, disability, death, and insurance benefits.”

One of the main concerns surrounding this legislation is how it would affect wage theft ordinances like Miami-Dade County’s. A wage theft ordinance is a form of worker protection designed to eliminate the underpayment and non-payment of wages earned by employees.

Templin believes this bill would make wage theft ordinances an issue statewide because the language specifically says “wages and payment of wages” will be “expressly preempted to the state.”

“If Miami-Dade is having an administrative hearing over a case of wage theft, it would be very easy for a business owner to come in and say, ‘this statute clearly says that the payment of wages and anything about the payment of wages is preempted to the state. You have no authority here.’ That’s a court case. That moves through the courts. Stays will be issued, and we will see wage theft ordinances across the state put on hold, and perhaps, obliterated,” Templin said.

“If the legislation is really about predictive scheduling, a group of us could sit in the back for about 15 minutes, you guys could take a recess, we could bring a late filed amendment and you could fix it right now,” he told members of the committee. “I don’t think that that’s going to happen because this is about a lot more than predictive scheduling.”

Templin was just one of several people who spoke out against the bill. Many more waived their opportunity for appearance in opposition to the proposal.

The only individual who spoke up in support of SB 432 on Tuesday, other than Sen. Gruters, was Samantha Padgett, the General Counsel for the Florida Restaurant and Lodging Association.

She believes the bill’s phrase “payment of wages” wouldn’t touch wage theft ordinances.

“I will be very honest with you and very frank with you, we fought for a preemption of wage theft ordinances,” she told the committee. “I do feel that those wages should be regulated at the state level. We were unsuccessful in passing that.”

She believes in this legislation, “payment of wages” refers to the manner in which wages are paid - biweekly, hourly or salaried, for example.

“It is my opinion that this does not impede the ability to administer those local wage theft ordinances, but it does protect a business from having a local government decide for them how they are going to pay the wages to their employees,” she said. “Wages are due to an employee that works and no one should interrupt the ability of the employee to get those wages that they have earned.”

“Hopefully this bill doesn’t get heard again and it just dies a good death,” Sen. Rader said in closing arguments. “But if it keeps on moving forward, what it sounds like to me is we’re just going to have more lawsuits, more trying to figure out what this is trying to do, trying to figure out what predictive scheduling is, when all you need to do is for 15 minutes we could teepee this bill. They could get in the back room and fix this.”

“I’m not high on this bill at all and I’m really sorry that it was scheduled,” he said.

“There’s an alternative procedural mechanism rather than an ordinance affecting the substantive rights of employers and employees and it does not appear that this bill would affect those local wages that are addressed,” Sen. Gruters said in his closing argument..

“The market, at the end of the day, will take care of wage rates,” he said. “At the end of the day, this is about flexibility. We have one of the best business economies in the country and we want to continue to be the best. We want to  make sure that we provide our employers and our job creators the flexibility so that we can continue to employ lots of workers.”

In the end the bill made it through its first committee stop in a party line vote with Democrats Kevin Rader and Victor Torres (Kissimmee) voting against. Republicans Aaron Bean (Fernandina Beach), Ben Albritton (Bartow) and committee chair Ed Hooper (Palm Harbor) all voted in support.

Brendan Rivers can be reached at brivers@wjct.org, 904-358-6396 or on Twitter at @BrendanRivers.