Organizations: State Laws Can Impact Your Hybrid and Remote Work Strategies

Estimated reading time: 14 minutes

(Editor’s Note: Today’s article is a bit longer than usual. So go grab your favorite beverage and take your time reading this one. Because it’s important.)

I don’t talk about state legislation much on HR Bartender because … well, because state laws only impact a relatively small number of people. Well, at least that’s what I used to think. State laws are becoming important to monitor for two reasons:

1. The growing number of hybrid and remote employees. As more employees have the flexibility to work anywhere, it means that companies need to understand the laws of the state where an employee works and lives.

2. Some states are becoming a bellwether for other states. Regardless of your politics, we’re starting to see states implement legislation while other states watch what happens and possibly follow suit. 

It’s because of these two reasons that I want to share with you a new piece of legislation that will take effect in Florida on July 1, 2022. The Individual Freedom Act (IFA) is an amendment to the Florida Civil Rights Act (FCRA). This law has implications for employers and employees in Florida. And I’m not going to sugarcoat it, some states might consider Florida a bellwether when it comes to legislation. 

This specific piece of legislation is worth paying attention to because it basically says that subjecting an individual to lessons or learnings that promote, advance, or compel someone to believe discriminatory concepts is unlawful discrimination. The law goes on to specify discriminatory concepts to include things like a person’s status as privileged and a person receiving adverse treatment to achieve inclusion. 

To give you some sense of this legislation, I spoke with Mia C. Larson, labor and employment associate at Buchanan Ingersoll & Rooney PC based in Tampa, Florida. Mia focuses her practice on providing a full range of labor and employment counseling and litigation services including state and federal regulatory compliance, employee benefits, labor relations, tax and change management, and employment litigation.

Since Mia is a lawyer, please don’t forget that her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.

Mia, thanks so much for being here. As an HR professional, one of the first things I try to do when I hear about new legislation is understand “Does this apply to me or my organization?” So, let’s start with some definitions. And I understand that these definitions might evolve over time, but let’s talk about what we believe they are right now.  

First, I know a component of Florida’s Individual Freedom Bill (HB.7) applies to employment situations. With the popularity of remote and hybrid work, I could see organizations wanting to know if this bill only applies to Florida based organizations OR any organization with employees in Florida?

[Larson] Since the Individual Freedom Act (IFA) amends the Florida Civil Rights Act (FCRA), it appears that any employer that is subject to the FCRA will be subject to the IFA. The FCRA defines an ‘employer’ as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 

The more intricate part of this question is whether the FCRA applies to organizations that are not based in Florida, but have employees who work in or are residents of Florida. The Eleventh Circuit directly addressed this question in Sinclair v. De Jay Corp., 170 F.3d 1045 (11th Cir. 1999). In Sinclair, the Eleventh Circuit held that the FCRA definition of ‘employer’ does not require that all fifteen employees be employed in Florida. If Sinclair is applied, an organization is considered an employer for purposes of the FCRA (and thus the IFA) if the organization has 15 or more employees anywhere in the country, regardless of how many of those employees are physically located in Florida. 

You are correct that remote and hybrid work may make this analysis even more complicated. Generally speaking, if an organization has 15 or more employees, and at least one of those employees is either physically present in Florida or is a Florida resident (including Florida employees who work remotely), then that organization can be considered an employer for purposes of the FCRA and, therefore, for purposes of the IFA. In the words of the Eleventh Circuit, ‘the plain and unambiguous language of the FCRA requires only that an employer employ fifteen persons to qualify as a statutory employer under the FCRA. It says nothing about where the employees must work.’ Sinclair, 170 F.3d at 1048.

So, in the context of determining which employees should be counted towards the fifteen-person requirement for an organization to qualify as a statutory employer, the IFA will likely apply to any employer with 15 or more employees (nationwide), at least one of whom is a Florida resident or physically present and working in Florida, regardless of how many of those employees are actually protected by the FCRA. 

The bill also refers to “instruction” in the workplace. Is that only formal classroom training? Employees learn many different ways including online, reading, mentoring, coaching, etc. 

[Larson] The IFA specifically prohibits employers from subjecting any individual, as a condition of employment, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the concepts specified in the law. The phrase ‘or any other required activity’ indicates that the IFA is not intended to be limited to formal classroom training. Instead, the IFA appears to prohibit employers from mandating employees to undergo any required activity, whether that activity is an online curriculum, required reading, mentor-mentee relationship, coaching program, or otherwise, if the activity has the effect of promoting any of the specified concepts. 

The emphasis of the IFA is not on what format the employer uses to present information to employees, but rather on whether the employer chooses to in any way promote one or more of the specified concepts.

Good point about distinction between format and content. Let’s take that one step further and talk about conferences and professional development events that might be paid for by the organization, but they don’t control the content. For example, if I live in Florida and the company sends me to a conference in another state? Or if I’m from another state and attend a conference in Florida?

[Larson] These are questions that the IFA does not directly address, and that will need to be answered over time, assuming the IFA takes effect as planned on July 1, 2022. However, it appears that if an employer sends employees to a mandatory conference that promotes any of the specified concepts, the employer runs the risk that it may be violating the IFA. By contrast, if an employer sends employees to a mandatory conference that does not promote, but objectively presents information regarding the specified concepts, then there would not appear to be any IFA violation. Likewise, if an employer gives employees the option to attend the conference described in either of the first two scenarios but does not make attendance a condition of employment (i.e., there is no consequence for employees who choose not to attend), then there would not appear to be any IFA violation. 

Note, however, that the IFA does not shed much light on what would be considered an ‘objective manner’ of providing a training or instruction on the specified topics such that the training or instruction would fall within the purview of the IFA’s safe harbor provision. Moreover, there may be additional wrinkles to this analysis, particularly if the employer does not (or cannot) control the contents of the conference. For example, what if the host of the conference (not the employer) unexpectedly says something that could be construed as promoting one of the specified concepts? Is the employer on the hook for that? Likewise, is allowing employees to attend a conference but stating that the employer does not endorse the content adequate to comply with the IFA?

The best practice under the IFA appears to be that any employer-facilitated discussion of the specified concepts that is part of a training, instruction, or other required activity must not endorse any of the concepts specified in the IFA. If the training, instruction, or other required activity endorses one or more of those concepts and is mandatory, then the employer runs the risk that it may be committing an unlawful employment practice under the IFA. 

Currently, many organizations have made public statements and put programs in place to show that DEIB(elonging) and DEIBJ(ustice) are important values for them. Do they need to consider re-evaluating their positions and programs considering this new legislation? 

[Larson] This is certainly top of mind for employers evaluating how to comply with the IFA. This also seems to be one of the reasons behind the current lawsuit challenging the constitutionality of the IFA on First Amendment grounds. The IFA does not explicitly prevent employers from publicizing policies and positions on diversity, equity, inclusion, or related topics. If it did, there would probably be a much clearer case for allegations of First Amendment violations.

Instead, the IFA prevents employers from imposing the specified concepts on employees. One question is where exactly the line for impermissible activities is drawn. 

• Does distributing an employee handbook containing an anti-discrimination policy run afoul of the IFA if employees are required to sign the handbook? 
• Does the phrase ‘other required activity’ refer more narrowly to activities like trainings that affirmatively present and endorse the specified concepts? 

These are tough questions, and there isn’t a lot of guidance to be taken from the language of the IFA. Such ambiguities are one of the grounds upon which the constitutionality of the IFA is currently being challenged in federal court.

Are there some steps that organizations should take to make sure that their current learning and development offerings are in line with legislation?

[Larson] First, organizations should read and become familiar with the legislation. 

Second, organizations should pay close attention to any legal challenges or changes to the IFA that may occur over the next few months. 

To that end, organizations should consider consulting legal counsel or industry human resources groups regarding their current employee trainings, instructions, and other required activities to determine what changes, if any, should be made to comply with the IFA. For example, it may make sense for some employers to make their trainings that discuss one or more specified concept optional, so that employees who do not wish to attend can opt out of attending (without consequence). For other employers, it may make more sense to keep these trainings mandatory, but review the contents to make sure there is no endorsement of any specified concept, and that any information relating to those concepts is presented in a purely objective manner. 

Of course, the extent to which employer trainings on concepts such as unconscious bias can be objectified is a difficult question. It also may raise issues for certain employers covered by federal laws or other contractual terms that require trainings on diversity and may also restrict or require certain types of content to be included in those trainings. 

Ultimately, an organization trying to comply with the IFA will most likely need to conduct an individualized assessment of its own needs, goals, and risk tolerance to evaluate its own best practices in light of this new law.

In addition to looking at current training programs, are there some steps that HR departments should take in terms of employee handbooks, workplace investigations, etc. to demonstrate compliance with this new law? 

[Larson] Again, the steps needed to comply with the IFA may be different for every organization. For employee handbooks, an objective description of concepts such as unconscious bias might be permissible, but an employer’s ‘Policy to Prevent Unconscious Bias’ might push the line, and requiring employees to sign off to agree to abide by this policy may cross into the realm of impermissible conduct under the IFA. 

Similarly, in a workplace investigation for allegations of race discrimination, an employer may need to balance its need to train in order to appropriately limit any potential liability under Title VII of the Civil Rights Act or similar state law against the risk that such trainings, depending on their contents, may violate the IFA. Again, this assessment comes down to an individual organization’s structure, business needs, and circumstances, and the answer to what constitutes ‘compliance’ with the IFA may be different for every organization.

If organizations don’t want to stop offering certain instruction but they’re willing to let employees “opt-out”, is that acceptable? For example, if an employee was required to attend a certain instructional program to get a certification or be granted permission to work at a client site, could “opting out” have an impact on the employee’s career? Like situations we face now with COVID vaccinations/boosters. 

[Larson] The answer is that it depends. Allowing employees to ‘opt-out’ of instructions that promote concepts specified in the IFA may be a potential way to comply with the IFA. But would this create a risk of singling out employees who can choose to opt out, and could that form the basis for potential claims of discrimination or unequal treatment under the FCRA? 

Similarly, if an organization requires employees to undergo a training with IFA-banned content to earn a certificate or license, this would appear to violate the intent of the IFA. But if an employee can opt out of that training and still earn the certificate or license, then it seems less likely the employer would have violated the IFA. However, if an employee is required to attend classes, seminars, etc. presented by third parties to maintain employer- or state-required certifications, licenses, and so forth, but refuses to do so because of the content, then the employee may risk loss of employment – not for objecting to IFA-banned content, but for failing to maintain required certifications or licenses.

Another question that the ‘opt out’ option raises relates to certain categories of employees, such as those working under federal contracts, who may be required by federal law to undergo certain types of diversity or similar trainings. How can the apparent conflict between federal law requiring certain trainings, and state law that appears to prohibit those trainings, be reconciled? This is yet another difficult question that the IFA falls short of answering, and the answer will likely involve an individual risk-balancing analysis for most employers.

Again, this legal landscape is new and muddy, and the best advice I could give to an organization trying to comply with the IFA is to seek the advice of counsel who can help evaluate the nuances of the particular organization, its employees, and its strategic business needs and goals.

Speaking of evaluating risk, I’m sure this won’t be a surprise, but some organizations take the path of “If we get caught, we’ll pay the fine.” What happens if an organization is found guilty under the Individual Freedom Act?

[Larson] Since the IFA is part of the FCRA, more than a fine is at stake. There are two different enforcement mechanisms at play. 

• First, there is a private right of action for employees. Employees who think their employer violated the IFA can file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation and then, in most cases, pursue administrative actions or civil lawsuits seeking injunctive relief, back pay, compensatory damages, lost benefits, and, in some cases, punitive damages (not to exceed $100,000).

• The second enforcement mechanism involves the Florida Attorney General, who can bring a civil lawsuit against an employer for damages, injunctive relief, and civil penalties of up to $10,000 per violation when the Attorney General has cause to believe the employer engaged in a pattern or practice of discrimination or otherwise engaged in discrimination that violates the IFA and raises issues of great public interest.

In other words, the potential consequences for failing to comply with the IFA can be high. This should be a factor in organizational risk assessments for evaluating IFA compliance efforts, as should factors like the size and financial resources of the individual organization. 

Because recruiting is tough right now, should employers be prepared to answer questions about their position on the Individual Freedom Act during interviews? 

[Larson] For most things in life, being prepared is better than the alternative. Certainly, organizations should have a plan for how to address these type of questions if they come up. However, what exactly an organization might say in response to such a question may require yet another individualized assessment of the organization’s strategy for complying with the IFA. For example, is a ‘canned’ answer that an employer is committed to complying with all applicable laws sufficient, or does an organization need to provide greater details as part of its strategic recruiting efforts? 

To the extent a more particularized answer is given, how will the organization make sure the employee giving the answer has the requisite understanding of the IFA and the organization’s strategy for compliance? There are many different considerations tied to this question, and again, my advice to every organization concerned about this issue is to seek customized advice on what solution may work best in light of their individual needs and circumstances. 

LAST QUESTION. If employers want to learn more about this new legislation, where can they find information? 

[Larson] The text of the IFA can be found on the Florida Senate website. Employers should stay apprised of current events and any challenges or changes to this new law. The legal world is ever-changing, and one great step that organizations can take to stay apprised of the most up-to-date legal news is subscribing to a legal newsletter.

A huge thanks to Mia for sharing her knowledge. I learned about this new legislation from the Buchanan Ingersoll & Rooney newsletter, so I would recommend signing up for their advisories. 

As Mia mentioned the legal world is constantly changing. An increasing number of states are enacting legislation that impacts employment law. With employees being able to work from anywhere, this means organizations must understand the laws of the places where their employees are working. 

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