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Langham: Uniformity in Regulations

  • State: Florida

On April 11, Gov. Ron DeSantis signed CS/CS/HB 433. That designation, as we have noted previously, has meaning.

Judge David Langham

Judge David Langham

The "CS" reflects that the bill that was signed is not the same as the one that was introduced in the House of Representatives. The "CS" stands for "committee substitute," and since this bill has that twice in the name, there is evidence of significant effort and alteration between filing and passage. What eventually passed was the second committee substitute.

The "HB" is noteworthy also. That tells the reader that the bill originated in the Florida House of Representatives, a House bill (HB). Too often, the press refers to bills in shorthand, mentioning only the number. More often, the reader can count on more specialized or focused publications to note which chamber originated a bill. See the coverage at Business Insurance (BI).

The popular crux of this new law, according to BI is that it "prevents local governments from establishing, or requiring employers to establish, heat exposure requirements that are not otherwise required under state or federal law."

That is accurate. But, the breadth of the bill is greater. It has notable implications for business and therefore for the people who are employed at a business. In that regard, it may be important that some businesses are physical locations (buildings) at which work is persistently performed. But, there are other businesses in which employees travel to some locations to perform various services.

Thus, a business here in Paradise might have employees who travel down the highway on a given day and install new street lights in Jacksonville. A business in Miami might put employees on a flight to Paradise, where they will represent a client in court. There is an almost infinite breadth of potential scenarios and combinations in which work might be performed in one or various locations.

A particular employer might be in the first paradigm, where the employees come to a particular building and work throughout the day. But that employer might have such an office in Christmas, another similar to it in Elfers and yet another in downtown Couch. Yes, those are all real towns in Florida. The last one sounds comfortable, but who knows?

A significant portion of CS/CS/HB 433 is uniformity in pay requirements across Florida. There is, of course, a federal minimum wage that is part of the Fair Labor Standards Act. Many workers' compensation attorneys are aware of that law because a work accident can bring scrutiny on earnings. After all, benefits are based on an average weekly wage. A work accident is frequently the first time a worker discusses earnings with any advocate.

The FLSA affords some deference to states, and Florida has enacted laws to implement both the FLSA requirements and to effectuate state wage and benefit requirements. States can mandate a "minimum" higher than the federal rate. See the NPR coverage of California's latest mistake.

This is a great example of both federalism (the state and national governments dividing or cooperating in various regulatory functions) and the expansive view of the 20th century regarding the Constitution's commerce clause (particularly in the "post-Lochner" era).

So, it is important to note that CS/CS/HB 433 will prevent local governments (counties, cities, towns) from forcing "wages or employment benefits" decisions on the "vendors, contractors and other parties" that do business with them. That is not a new idea. The federal government's history includes various examples where it forced policy change by mandating how its vendors and contractors operated their businesses. Essentially, they were free to do business as they pleased, but to contract with the government, they were forced to comply with the government's preferred feelings or methods. 

Local government in Florida will be limited in any method of preferring some vendor or provider on the basis of whether that business does or does not have wage, fringe or other benefits that are more or less consistent with the ideals, proclivities or feelings of the local government or, more succinctly, its leaders.

CS/CS/HB 433 also addresses the potential for disparate regulations regarding employee heat exposure protections. The law will prevent local government from regulating employers regarding heat exposure requirements other than those "required under state or federal law." Thus, the heat exposure requirements for employees of a company will be the same whether their workers are in Orlando today or have driven from there (Orange County) into Altamonte Springs (Seminole County).

In other words, there will be uniformity across Florida. Local government will not be able to create distinct regulations that could result in a patchwork of rules. A supervisor can care for employees without asking, "What county is this?"

There will be critics of this. Some will lament that the bill eliminates the "Miami-Dade ... proposal to require 10-minute breaks in the shade for every two hours for any construction and farmworkers outside." See USA Today coverage.

However, the new state law relies on the regulations that have been approved by the Occupational Safety and Health Administration. There are a great many who believe that the OSHA regulations and requirements are both sufficient in this regard and are "the best practices" in terms of worker protection. Those regulations apply in all counties and states. 

The new state law will maintain uniformity. The manager of a crew will not need to pay attention to whether a particular location is in this county or that, this city or the county that surrounds it, etc. The manager can maintain focus instead on the working conditions, the federal best practices and the safety of the employees. This should facilitate the workplace and the work. 

That said, the bottom line for humans is that we are all different. If a worker needs rest or feels symptoms, he should voice that concern.

The OSHA regulations are to guide the employer and have significant value in the management process and workplace safety. But, in the end, it is only the employee who knows how she feels. Workers must communicate that in the interest of their own safety, and employers must remain receptive and address those concerns when raised.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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