House of Representatives Staff Analysis — PCS for HB 433 Employment Regulations (12/8/2023)
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- Congressional materials
- Document type
- 2024 3236 Regulatory Reform Economic Development Subcommittee Proposed Committee Bill Anal
Summary
A House of Representatives staff analysis of the PCS for HB 433, Employment Regulations, sponsored by the Regulatory Reform & Economic Development Subcommittee and dated 12/8/2023. The summary states that the bill prohibits local governments from preferring contractors based on wages or employment benefits, removes their ability to require a minimum wage for certain contracted employees, and preempts the regulation of terms and conditions of employment and workplace heat exposure requirements to the state. The analysis reviews the federal Fair Labor Standards Act, Article X, Section 24 of the Florida Constitution, the Florida Minimum Wage Act and local wage ordinances. It lists an effective date of July 1, 2024, finds no fiscal impact on state or local government, and notes rulemaking on heat exposure if OSHA has not acted by July 1, 2028.
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Cite this document
“House of Representatives Staff Analysis — PCS for HB 433 Employment Regulations (12/8/2023).”
Original at www.flhouse.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2024-3236-regulatory-reform-economic-development-subcommittee-proposed-committee-bill-analyses-fn-pcs0433-rrs/
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 433 Employment Regulations
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Regulatory Reform & Economic Thompson Anstead
Development Subcommittee
SUMMARY ANALYSIS
The federal Fair Labor Standards Act (FLSA) provides workers with minimum wage, overtime pay, record
keeping, and child labor protections for full and part-time workers in both the private sector and federal, state
and local employment. The FLSA allows states to expand the rights of employers and employees. In some
instances, Florida law provides stronger protections for employees than federal law, including protections
regarding discrimination based on marital status, minimum wage, and health coverage obligations for small
employers. Florida generally follows federal law on overtime pay and occupational health and safety.
The Florida Minimum Wage Act (Act), enacted in 2005, implements the minimum wage provisions in the State
Constitution.
Florida’s wage and employment benefits law preempts the establishment of a minimum wage to the state.
Thus, local governments cannot establish a minimum wage for private employers in their jurisdiction. Local
governments are also prohibited from requiring private employers to provide employment benefits not required
by state or federal law. However, local governments have limited authority to establish a minimum wage and to
require specific employment benefits for their own employees and those of their vendors or contrac tors.
The Occupational Safety and Health Act of 1970 (Act) is the federal labor law governing occupational health
and safety in the private sector and federal government. Currently, there are no specific federal or state laws
that provide heat exposure protections for outdoor workers.
The bill:
Prohibits local governments from preferring one contractor over another based on the wages or
employment benefits provided by the contractor.
Removes the ability of local governments to require a minimum wage for certain contracted employees
under the terms of a contract.
Expressly preempts the regulation of the terms and conditions of employment to the state.
Preempts the regulation of workplace heat exposure requirements to the state.
Clarifies that the preemption of workplace heat requirements does not limit the authority of a local
government to provide workplace heat exposure requirements for the employees of the local
government, and does not apply if compliance will prevent the local government from receiving federal
funds.
The bill does not appear to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Fair Labor Standards Act
The federal Fair Labor Standards Act (FLSA), enacted in 1938, provides covered workers with
minimum wage, overtime pay, and child labor protections. 1 In 1938, the FLSA established a minimum
wage of $.25 an hour. The current federal minimum wage rate is $7.25 an hour, which went into effect
July 24, 2009. The FLSA applies to employment within any state in the U.S., the District of Columbia or
any territory or possession of the U.S.2
The FLSA covers most private and public sector employees. However, certain employers and
employees are exempt from coverage, including: individuals with disabilities, youth workers, tipped
workers and executive, administrative and professional workers. The FLSA covers businesses if the
business has annual sales of at least $500,000. 3 It also covers certain individual employees if such
employee is engaged in interstate commerce.
Regardless of the dollar amount of revenues of a business, the FLSA applies to:4
Governments: Federal, state, or local government agencies.
Hospitals: Hospitals, or institutions primarily engaged in the care of the sick, the aged, or the
mentally ill or disabled who live on the premises. (It does not matter if the hospital or institution
is public or private or is operated for profit or not-for-profit.)
Schools: Pre-schools, elementary or secondary schools or institutions of higher learning (e.g.,
college), or a school for mentally or physically handicapped or gifted children. (It does not
matter if the school or institution is public or private or operated for profit or not-for-profit.)
The FLSA includes several exemptions from the federal minimum wage provisions, including: 5
Executive, administrative and professional employees;
Employees in certain seasonal amusement or recreational establishments, employees in certain
small newspapers, seamen employed on foreign vessels, employees engaged in fishing
operations, and employees engaged in newspaper delivery;
Farm workers employed by certain employers;
Casual babysitters and persons employed as companions for the elderly or infirm;
Border patrol agents 6; and
Baseball players who are compensated pursuant to a contract that provides for a weekly salary
for services performed during the league’s championship season at a rate that is not less than a
weekly salary equal to the minimum wage.
The FLSA was amended in 2014, related to border patrol agents, and again in 2018, to exempt minor
league baseball players who are paid at least $290 per week during the 2018 championship season
1 29 U.S.C. § 201-219 and 29 C.F.R. ch. V.
2 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview,
https://crsreports.congress.gov/product/pdf/R/R42713, (last visited Dec. 5, 2023). (The main FLSA provisions and accompanying
Department of Labor (DOL) regulations constitute what is commonly known as federal wage and hour laws and federal child labor
law.).
3 The size of an enterprise is measured by its “annual sales or business done.” Annual sales or business done includes all business
activities that can be measured in dollars. Thus, retailers are covered by the FLSA if their annual sales are at least $500,000. Owners
of rental properties are covered if they collect at least $500,000 annually in rent. 29 C.F.R.§§779.258-779.259.
4 U.S. Department of Labor, Fair Labor Standards Act Advisor, https://webapps.dol.gov/elaws/whd/flsa/scope/screen10.asp, (last
visited Dec. 5, 2023).
5 29 U.S.C. § 213. (It also includes separate exemptions from overtime pay.)
6 See Border Patrol Agent Pay Reform Act of 2014, S.1691, 113th Cong, (2014).
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from the federal minimum wage rate and overtime pay.7 These two amendments were the only
amendments made to the minimum wage exemptions provisions of the FLSA since Florida passed its
minimum wage law in 2005.8
The FLSA provides that if states enact worker protections, including minimum wage rates, that are
more protective of employees than what is provided by the FLSA, the state law applies. 9 Consequently,
no state law may weaken the worker protections in the FLSA. However, state laws that impose greater
worker protections will supersede those in the FLSA.10
Thirty states plus Washington DC, Guam, Puerto Rico, and the Virgin Islands provide a minimum wage
greater than the federal minimum wage. Thirteen states provide a minimum wage that is equal to the
federal minimum wage. Five states have not adopted a minimum wage and two states have a minimum
wage that is below the federal minimum wage.11 For those seven states, the federal minimum wage
applies, but only to those workers covered by the FLSA.
Article X, Section 24 of the Florida Constitution
On November 2, 2004, Floridians voted to amend the Florida Constitution by adding a minimum wage
provision (Section 24) that established the state minimum wage.12 Prior to this date Florida did not have
a law on minimum wage so the FLSA applied for covered workers. Section 24 provides the amount of
the minimum wage and the procedure for calculating increases in the minimum wage. 13
Florida voters again on November 3, 2020, voted to approve a constitutional amendment related to the
state’s minimum wage, Amendment 2, to gradually increase the state’s minimum wage to $15 an hour
by the year 2026.14 Pursuant to the passage of Amendment 2, on September 30, 2021, Florida’s
minimum wage increased to $10 per hour. Each year, thereafter, Florida’s minimum wage will increase
by $1 until the minimum wage reaches $15 per hour on September 30, 2026. 15 Beginning in 2027, the
minimum wage will be adjusted annually for inflation, as it had been done from 2004 - 2021.
Related to minimum wage, the Florida Constitution states, “All working Floridians are entitled to be paid
a minimum wage sufficient to provide a decent and healthy life, that protects their employers from
unfair low wage competition, and that does not force them to rely on taxpayer-funded public services.”16
7 See Levi Weaver, On Minor-League Pay, MLB’s Stance Doesn’t Line Up with the Facts, ATHLETIC (Apr. 4, 2018),
https://www.theathletic.com/293189/%202018/04/04/on-minor-league-pay-mlbs-stance-doesnt-line-up-with-the-facts// (last visited
Dec. 5, 2023). (When recounting salary scale per level of minor league baseball, the article notes “federally -recognized poverty line is
$12,140 per year for single-individual households.” According to the article, a not-insignificant percentage of minor league players are
able to subsidize their relatively meager monthly salaries by drawing upon the signing bonuses they received from their MLB c lubs
when first entering the professional ranks. These bonuses can range anywhere from $10,000 to several million dollars. “The top 64
picks [in the MLB draft] last year all received a bonus of over $1,000,000 before taxes, but roughly 40% of players signed for one-
time bonuses of $10,000 or less.”
8 S. 448.110, F.S., expressly references ss. 213 and 214 of the FLSA, which address minimum wage exemptions and employment
under special certificates, respectively. However, s. 214 has not been amended since 1989. (See Pub. L. 101–157, § 4(d), Nov. 17,
1989, 103 Stat. 941.)
9 29 U.S.C. §218.
10 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, Updated March 2,
2023, https://crsreports.congress.gov/product/pdf/R/R42713, (last visited Dec. 5, 2023).
11 U.S. Department of Labor, Consolidated Minimum Wage Table, https://www.dol.gov/agencies/whd/mw-consolidated (last visited
Dec. 5, 2023).
12 Art. X, s. 24., Fla. Const.
13 Art. X, s. 24 (c), Fla. Const.
14 U.S. Department of State, Notice of Increase to State of Florida’s Minimum Wage, https://www.state.gov/wp-
content/uploads/2021/01/2021-01-29-Notice-FL-M inimu m-Wage-Increase.pdf (last visited Dec. 5, 2023).
15 Department of Economic Opportunity, Florida’s Minimum Wage, https://floridajobs.org/docs/default-source/business-growth-and-
partnerships/for-employers/posters-and-required-notices/2022-minimum-wage/2022-florida-minimu m-wage-
announcement.pdf?sfvrsn=961754b0_2 (last visited Dec. 5, 2023).
16 Art. X, s. 24 (a), Fla. Const.
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The Florida Constitution references the FLSA and specifically ties the meaning 17 of certain terms,
“Employer,” “Employee” and “Wage,” to have the meanings established under the FLSA and its
implementing regulations.18 It also indicates that that case law, administrative interpretations, and other
guiding standards developed under the federal FLSA must guide the construction of Florida’s
Constitution related to Section 24 and any implementing statutes or regulations. 19
Florida Minimum Wage Act
The Florida Minimum Wage Act (Act) was enacted in 2005 to implement the minimum wage provisions
in the State Constitution.20 The Act designates the Department of Commerce (DC) as the state agency
that implements the minimum wage requirements, establishes procedures with respect to civil actions
alleging violations, and provides that it is the exclusive remedy under state law for violations of Section
24.21
The Act provides that effective May 2, 2005, employers are required to pay employees a minimum
wage at an hourly rate of $6.15 for all hours worked in Florida. Only those individuals entitled to receive
the federal minimum wage under the FSLA and its implementing regulations are eligible to receive the
state minimum wage pursuant to the State Constitution and this statute. The provisions of ss. 213 and
214 of the federal Fair Labor Standards Act, as interpreted by applicable federal regulations and
implemented by the Secretary of Labor, are incorporated by reference. 22
As it relates to the federal minimum wage and the FLSA, the Act specifies that: 23
Only those individuals entitled to receive the federal minimum wage under the FSLA, as
amended, and its implementing regulations, are eligible to receive the state minimum wage; and
Provisions related to federal minimum wage exemptions in the FLSA are considered
incorporated in the Act.
Local Wage Ordinances
In Florida, the State Constitution authorizes counties to enact ordinances that are not inconsistent with
state law.24 The State Constitution also grants municipalities the power to enact ordinances on any
subject that state law may address, except:25
The subjects of annexation, merger, and exercise of extraterritorial power;
Any subject expressly prohibited by the State Constitution;
Any subject expressly preempted to state or county government by the State Constitution or by
law; or
Any subject preempted to a county under a county charter.
In 2003, the Legislature preempted the establishment of minimum wages to the state. 26 However, a
political subdivision (local government) 27 retains the authority to establish a minimum wage other than a
17 In re Advisory Opinion to the Atty. Gen. re Fla. Minimum Wage Amend., 880 So. 2d 636, 641–42 (Fla. 2004). (“The proposed
amendment does not state that it is adopting the FLSA's definition of the term “employee,” but provides that it is adopting the meaning
of the term “employee,” which is a much broader concept.”)
18 Art. X, s. 24(b), Fla. Const.
19 Art. X, s. 24(f), Fla. Const.
20 Ch. 2005-353, Laws of Fla., codified in s. 448.110, F.S.
21 S. 448.110(10), F.S. HB 5 (2023) renames the Department of Economic Opportunity as the Department of Co mmerce; SB 82
(2024), section 220, makes this conforming change in the Florida Minimum Wage Act.
22 S. 448.110(3), F.S.
23 S. 448.110(3), F.S.
24 S. 1(f) and (g), Art. VIII, Fla. Const.; see also s. 125.01, F.S.
25 S. 2(b), Art. VIII, Fla. Const.
26 S. 218.077(2), F.S. See s. 18(a) of the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. s. 218:
No provision of [the Fair Labor Standards Act] or of any order thereunder shall excuse noncompliance with any Federal or Stat e law
or municipal ordinance establishing a minimum wage higher than the minimum wage established under [the federal act].
27 “Political subdivision” is defined to mean a county, municipality, department, commission, district, board, or other public b ody,
whether corporate or otherwise, created by or under state law. S. 218.077(1)(f), F.S.
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state or federal minimum wage or to provide employment benefits not otherwise required under state or
federal law for:28
Its employees;
The employees of an employer contracting to provide goods or services for the local
government, or for the employees of a subcontractor of such an employer, under the terms of a
contract with the local government; or
The employees of an employer receiving a direct tax abatement or subsidy from the local
governments, as a condition of the direct tax abatement or subsidy.
The preemption also does not apply to, “a domestic violence or sexual abuse ordinance, order, rule, or
policy adopted by a political subdivision.”29
The law contains an exception for situations where compliance would prevent a local government from
receiving federal funds. This allows compliance with the Davis-Bacon and related acts,30 which direct
the federal Department of Labor to determine fair wages for contractors and subcontractors working on
public buildings and public works. Florida law only allows non-compliance with regard to local minimum
wage alterations to the extent necessary to allow receipt of federal funds. 31
Additionally, local governments are prohibited from requiring an employer to provide employment
benefits 32 not required by state or federal law. “A political subdivision may not establish, mandate, or
otherwise require an employer to pay a minimum wage, other than a state or federal minimum wage, to
apply a state or federal minimum wage to wages exempt from a state or federal minimum wage, or to
provide employment benefits not otherwise required by state or federal law.”33
Despite these provisions, in 2016, the city of Miami Beach enacted a local ordinance establishing a
minimum hourly wage significantly exceeding the current Florida minimum wage. The ordinance
applied to all employers operating with the city. The ordinance, which was scheduled to take effect on
January 1, 2018, established both a local minimum wage of $10.31 an hour and annual increases to
$13.31 an hour effective January 2021. Subsequently, the ordinance was challenged on the grounds
that it was preempted by Florida’s wage and employment benefits law that preempts the establishment
of minimum wages to the state, and Florida’s Third District Court of Appeals struck down the ordinance.
The court held that the Florida Constitution authorizes the state legislature to preempt municipal
powers by statute. The court also rejected the city’s principal argument that Article X, Section 24 of the
Florida Constitution, raising the state minimum wage, made the statute unconstitutional. In 2018, the
Florida Supreme Court agreed to take up the case.34 However, in 2019, the Florida Supreme Court
issued an order that discharged jurisdiction over the case. As a result, the Third District’s decision
invalidating Miami Beach’s local wage ordinance appears to currently stand.35
Workplace Heat Exposure
28 S. 218.077(3)(a), F.S.
29 S. 218.077(3)(b), F.S.
30 See, e.g., 40 U.S.C. 3141 et seq. The Davis-Bacon Act is a federal law that regulates prevailing wage rates on public works projects.
The Act provides that all laborers and mechanics working on construction projects which are funded by the fe deral government shall
not be paid a wage less than prevailing wage, as specified by the U.S. Department of Labor, in the locality in which work is
performed.
31 S. 218.077(4), F.S.
32 “Employment benefits” is defined to mean anything of value that an employ ee may receive from an employer in addition to wages
and salary. The term includes, but is not limited to, health benefits; disability benefits; death benefits; group accidental death and
dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and
profit-sharing benefits. S. 218.077(1)(d), F.S.
33 S. 218.077(2), F.S. Federally authorized and recognized tribal governments, however, are not prohibited from requiring employ ment
benefits for a person employed within a territory over which the tribe has jurisdiction. S. 218.077(5), F.S.
34 City of Miami Beach v. Florida Retail Federation, Inc., 233 So.3d 1236 at 1238 (Fla. 3d DCA 2017) (declined for review February
5, 2019).
35 JDSUPRA, Can Cities Set a Local Minimum Wage? Florida Supreme Court Says No (Feb. 14, 2019),
https://www.jdsupra.com/legalnews/can-cities-set-a-local-minimu m-wage-67192/ (last visited Dec. 5, 2023).
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The Occupational Safety and Health Act of 1970 (Act) is the federal labor law governing occupational
health and safety in the private sector and federal government. 36 Under the Act, two federal agencies
are responsible for promoting occupational safety and health in the United States. The National
Institute for Occupational Safety and Health (NIOSH) conducts research and recommends occupational
safety and health standards.37 The Occupational Safety and Health Administration (OSHA) 38 is
responsible for the promulgation and enforcement of standards. 39
Currently, there are no specific laws in Florida that provide heat exposure protections for outdoor
workers. NIOSH and OSHA provide certain recommendations that employers provide heat exposure
protections.
In 2013, NIOSH published “Preventing Heat-related Illness or Death of Outdoor Workers.” This
recommended standard recommends that employers have a plan in place to prevent heat-related
illness. The plan should include hydration (drinking plenty of water), acclimatization (getting used to
weather conditions), and schedules that alternate work with rest. It recommends that employers should
also train workers about the hazards of working in hot environments.40
OSHA does not currently have any specific heat exposure standards. In the absence of a specific
standard, OSHA is authorized to enforce the “general duty clause” of the Act, which requires each
employer to provide a workplace that is free of “recognized hazards” causing or likely to cause “death
or serious physical harm” to its employees.41
In 2011, OSHA launched a heat illness prevention campaign that includes guidance to employers and
employees, a smartphone app that provides location-specific information on heat conditions and heat
exposure prevention and first aid, and educational materials such as posters and pamphlets in English,
Spanish, and other languages.42
On October 27, 2021, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) for a
potential standard on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. 43 OSHA
solicited public comments on the ANPRM through January 26, 2022, and received over 1,000
comments on the ANPRM.
In March 2021, OSHA cited Valley Produce Harvesting and Hauling Company for a willful violation of
the general duty clause by exposing sugar cane harvesting employees in Florida to “excessive heat,
elevated temperature working conditions, direct sun radiation and thermal stress” while working
outdoors in September 2020. OSHA assessed the maximum allowable civil monetary penalty of
$136,532 for this violation, which was later reduced through an informal settlement with the employer to
$81,919.20. The citation provides, “the employer did not furnish employment and a place of
employment which were free from recognized hazards that were causing or likely to cause death or
serious physical harm to employees in that employees were exposed to excessive heat, elevated
temperature working conditions, direct sun radiation and thermal stress.”44
In April 2022, OSHA began a National Emphasis Program (NEP) of enforcement of the general duty
clause and compliance assistance to focus on indoor and outdoor heat exposure. The NEP expands on
OSHA’s ongoing heat-related illness prevention initiative and campaign by creating a targeted
enforcement component and reiterating its compliance assistance and outreach efforts. This approach
is intended to encourage early interventions by employers to prevent illnesses and deaths among
36 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 STAT. 1590, 91st Cong. (Jan. 1, 2004).
37 29 U.S.C. § 671.
38 See Occupational Safety and Health Administration, About Osha, https://www.osha.gov/aboutosha (last visited Dec. 5, 2023).
39 29 U.S.C. § 655.
40 NIOSH 1986, 2008, 2010; OSHA-NIOSH 2011.
41 29 U.S.C. § 654.
42 Occupational Safety and Health Administration, Heat Illness Prevent ion, https://www.osha.gov/heat/ (last visited Dec. 5, 2023).
43 86 FR 59309.
44 Occupational Safety and Health Administration, Violation Detail,
https://www.osha.gov/ords/imis/establishment.violation_detail?id=1495595.015&citation_id=02001 (last visited Dec. 5, 2023).
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workers during high heat conditions, such as working outdoors in a local area experiencing a heat
wave, as announced by the National Weather Service. Early interventions include, but are not limited
to, implementing water, rest, shade, training, and acclimatization procedures for new or returning
employees.45
Local Heat Regulation
On November 11, 2023, the Miami-Dade County Board of County Commissioners considered a
proposal that would require construction and agriculture companies with five or more employees to
guarantee workers access to water and give them 10-minute breaks in the shade every two hours on
days when the heat index equals or exceeds 95 degrees Fahrenheit. The proposal would also require
employers to train workers to recognize the signs of heat illness, administer first aid and call for help in
an emergency. Enforcement includes a warning, fines of up to $2,000 per day per violation, and
debarment of contractors from county work for certain repeated violations and unpaid penalties.46
According to reports: 47
The proposal was deferred until March.
Some South Florida employers have expressed that they already provide such protections.
Miami-Dade County would have been the only local government in the nation to adopt such
requirements.
Preemption
A local government enactment may be inconsistent with state law if the:
Local enactment conflicts with state statutes; or
The Legislature has preempted the particular area of law that is the subject of the enactment.
Such state preemption precludes a local government from exercising authority in the preempted area. 48
Florida law recognizes two types of state preemption: express and implied. Express preemption
requires an express legislative statement of intent to preempt a specific area of law; it cannot be
implied or inferred.49 Implied preemption, on the other hand, exists where the legislative scheme is so
pervasive as to evidence an intent to preempt the particular area, and where strong public policy
reasons exist for finding such an area to be preempted by the legislature. 50 Courts determining the
validity of local government ordinances enacted in the face of state preemption, whether express or
implied, have found such ordinances to be null and void.51
Effect of Proposed Changes
Wage and Employment Benefits
The bill amends Florida’s wage and employment benefits law by providing that a political subdivision
may not:
“maintain a minimum wage, other than a state or federal minimum wage.”
“through its purchasing or contracting procedures seek to control or affect the wages or
employment benefits provided by its vendors, contractors, service providers, or other parties
doing business with the political subdivision.”
45 Occupational Safety and Health Administration, OSHA Instruction,
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf (last visited Dec. 5, 2023).
46 Miami-Dade Legislative Item, File Number: 231773.
47 Miami Herald, After industry pressure, Miami-Dade puts heat protections for outdoor workers on ice,
https://www.miamiherald.co m/news/local/environ ment/article281487003.ht ml (last visited Dec. 6, 2023).
48
Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009), https://www.floridabar.org/the-florida-
bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-analysis/ (last visited M arch 20, 2023).
49
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1018
(Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
50
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010).
51
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002).
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DATE: 12/8/2023
“through the use of evaluation factors, qualification of bidders, or otherwise, award preferences
on the basis of wages or employment benefits provided by its vendors, contractors, service
providers, or other parties doing business with the political subdivision.”
The bill removes the ability of local governments to require a minimum wage for certain contracted
employees under the terms of a contract.
The bill also removes the exception that allows political subdivisions to establish a minimum wage or
employment benefits not otherwise required under state or federal law for:
“the employees of an employer contracting to provide goods or services for the political
subdivision, or for the employees of a subcontractor of such an employer, under the terms of a
contract with the political subdivision.”
Regulation of Labor
The bill expressly preempts the regulation of the “terms and conditions” of employment to the state.
The bill provides that unless expressly authorized by special or general law, a county, municipality,
special district, or political subdivision of the state may not adopt or enforce an ordinance, order, rule,
or policy providing any “term or condition of employment” that exceeds or conflicts with the
requirements of federal or state law relating to any term or condition of employment. The bill provides
that an ordinance, order, rule, or policy that violates this provision is void and unenforceable.
This appears to limit local government from regulating employment in any way, including having certain
requirements for its own employees that are different from the state or federal law.
Workplace Heat Exposure Requirements
In addition to the blanket preemption in the bill for all conditions of employment, the bill preempts the
regulation of workplace heat exposure requirements to the state, and specifically indicates that the
provision applies retroactively. Specifically, the bill provides that any local law, ordinance, resolution,
regulation, rule, code, policy, or charter amendment adopted before, on, or after the effective date of
this act which conflicts with this provision is void and prohibited.
The bill requires the DC to adopt rules relating to workplace heat exposure requirements if OSHA has
not done so by July 1, 2028. The rules must be consistent with the standards of OSHA in effect at the
time the DC adopts its rules, and modified as necessary to reflect workplace heat exposure
considerations specific to this state. The Legislature must ratify such rules before they take effect.
The bill prohibits local governments from:
Mandating or otherwise imposing heat exposure requirements on an employer, an employee, a
contractor, or a subcontractor.
Considering or seeking information relating to a contractor's or subcontractor's heat exposure
requirements in any procurement for goods or services.
The bill provides that it does not:
Limit the authority of a local government to mandate or impose workplace heat exposure
requirements for the employees of the local government.
Apply if it is determined that compliance would prevent the distribution of federal funds to a local
government or would otherwise be inconsistent with federal requirements pertaining to receiving
federal funds, but only to the extent necessary to allow a local government to receive federal
funds or to eliminate the inconsistency with federal requirements.
The bill provides the following definitions:
“Contractor" means an employer contracting with, or seeking to contract with, a local
government to provide goods or services to, for the benefit of, or on behalf of the local
government.
STORAGE NAME: pcs0433.RRS PAGE: 8
DATE: 12/8/2023
"Employee" means a natural person, including a self-employed person, who receives any type
of compensation or remuneration for providing services to an employer.
"Employer" means a person who hires or contracts for the services of employees.
"Heat exposure requirement" means a standard mandated or otherwise imposed on employers,
employees, contractors, or subcontractors to control an employee's exposure to heat or sun, or
to otherwise address or moderate the effects of such exposure. The term includes, but is not
limited to, standards relating to all of the following:
o Employee monitoring and protection.
o Water consumption.
o Cooling measures.
o Acclimatization and recovery periods or practices.
o Posting or distributing notices or materials relating to heat exposure which inform
employees how to protect themselves from such exposure.
o Implementation and maintenance of heat exposure programs or training.
o Appropriate first-aid measures or emergency responses related to heat exposure.
o Protections for employees who report that they have experienced excessive heat
exposure.
o Reporting and recordkeeping requirements.
"Local government" means a county, municipality, department, commission, district, board, or
other public body, whether corporate or otherwise, created by or under state law.
"Subcontractor" has the same meaning as in s. 448.095(1), F.S., which includes a person or an
entity that provides labor, supplies, or services to or for a contractor or another subcontractor in
exchange for salary, wages, or other remuneration.
B. SECTION DIRECTORY:
Section 1: Amends s. 218.077, F.S., relating to wage and employment benefits requirements by
political subdivisions; restrictions.
Section 2: Creates s. 448.077, F.S., relating to regulation of labor preempted to state.
Section 3: Amends s. 448.106, F.S., relating to workplace heat exposure requirements;
preemption; rulemaking.
Section 4: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
STORAGE NAME: pcs0433.RRS PAGE: 9
DATE: 12/8/2023
The bill may have an indeterminate fiscal impact on the private sector to the extent that the
preemptions supersede local ordinances.
The bill may:
Prevent businesses from losing local government contracts based on wages or employment
benefits that they do not currently offer.
Allow businesses that contract with local governments to pay their employees as they see fit.
Prevent businesses from being required to provide costly terms and conditions of employment.
Prevent businesses from being required to provide costly workplace heat exposure protections.
Prevent workers from earning a wage that allows them to live in the area that they work.
Create a negative fiscal impact for employers who provide workers’ compensation insurance for
their employees.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill requires the DC to adopt rules relating to workplace heat exposure requirements if OSHA has
not done so by July 1, 2028.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: pcs0433.RRS PAGE: 10
DATE: 12/8/2023
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