On May 9, 2023, Governor DeSantis signed into law Senate Bill 256 (“SB 256”), which creates several new requirements for certain public-employee organizations (or unions) that represent public employees in collective bargaining. The Bill is set to take effect on July 1, 2023. The Bill exempts unions that represent law-enforcement officers, correctional officers and firefighters from the new restrictions and requirements.

Specifically, the changes made to Chapter 447 of the Florida Statutes through SB 256 will affect public-employee unions that represent general or civilian employees (“Civilian Unions”) in the following manner:

• Employees who wish to join Civilian Unions will be required to sign a membership authorization form with the union that is prescribed by the Public Employees Relations Commission (“PERC”), which must contain specific information.
• Members of Civilian Unions will be allowed to revoke their membership in the organization at any time, and without any reason.
• PERC will be permitted to inspect membership authorization forms and membership revocation forms filed with Civilian Unions.
• Civilian Unions will be prohibited from receiving their members’ dues and assessments via salary deduction from the members’ public employer.
• Additional information related to the number and percentage of dues-paying members in each bargaining unit will need to be included in the annual registration renewal application submitted to PERC by each Civilian Union. In addition, the
• Civilian Union’s current annual financial report must be audited by an independent certified public accountant. This information must also be provided to the public employer on the same day it is filed with PERC.
• Public employers and/or employees who are eligible for representation in the bargaining unit may challenge a registration renewal application filed by a Civilian Union if they believe the application is inaccurate.
• Civilian Unions will be required to petition PERC to be re-certified as the bargaining agent if the number of employees paying dues to the employee organization during the last registration period is less than sixty percent (60%) of the number of employees eligible for representation in the bargaining unit.
• Certified bargaining agents of Civilian Unions will be required to provide its members with an annual audited financial report that includes a detailed breakdown of revenues and expenditures, and an accounting of membership dues and assessments.
• The list of prohibited activities by Civilian Unions and its representatives will be expanded to exclude the offering of compensation, payment, or anything of value to a public officer that the public officer is otherwise prohibited from accepting under FS 112.313(2).

The most notable change made through SB 256 that will likely affect many public employers is the prevention of dues from being deducted from workers’ paychecks, which will in turn force union members to make separate payments to their union for purposes of maintaining union membership.

Accordingly, public employers are advised to review their collective bargaining agreements in place with a Civilian Union to determine if there are any provisions that need to be revised, removed and/or collectively bargained, for purposes of complying with the new laws created under SB 256 before they become effective on July 1, 2023.

As expected, several Civilian Unions have already challenged the constitutionality of the new law by claiming it violates equal-protection rights and collective-bargaining rights under the Florida Constitution, and unconstitutionally impairs already-existing contracts between public employers and those unions (commonly referred to as collective bargaining agreements). Although these challenges are pending, public employers should anticipate that SB 256 will become effective on July 1, 2023.

Should you have any questions about this legislation, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

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Anne represents both public and private clients in a wide range of litigation matters. Her practice includes federal civil rights matters, personal injury, contract disputes and real property claims, and she actively practices in both federal and state court. She also has an active trademark law practice that includes the registration and enforcement of trademarks for both municipal and private clients. She is based in the Fort Lauderdale office. 

Richard focuses his practice on municipal and commercial appeals and litigation. He represents businesses and public entities in commercial disputes, land use, law enforcement, discrimination and torts. His civil litigation practice also includes private sector contract disputes, complex civil litigation, construction law and real property matters. He is based in the Miami office.

Lindsey advises employers and helps them resolve employment disputes by conducting in-house investigations in response to discrimination complaints filed by employees.  She also responds to and mediates charges of discrimination filed with the Equal Employment Opportunity Commission and the Florida Commission on Human Relations. She is based in the Fort Lauderdale office.

Alison focuses her practice on labor & employment, municipal, appellate, and administrative and regulatory matters. She regularly advises and represents public and private entities in connection with workplace issues and lawsuits brought pursuant to the Americans with Disabilities Act, Title VII, the Florida Civil Rights Act, the Age Discrimination in Employment Act, and many other labor and employment laws. She is based in the Fort Lauderdale office.

Lori is a former Assistant County Attorney for Broward County and is board certified by The Florida Bar as a specialist in City, County and Local Government Law. She represents local government clients in bond financings using sophisticated financing instruments such as rate-lock agreements, swap agreements, letters of credit, delayed delivery agreements, and other derivative products. She is based in the Fort Lauderdale office.

Alex handles land use and complex development permitting matters, as well as alcoholic beverage law issues.  Prior to joining the firm, Alex worked at the City of Miami’s Planning and Zoning Department where he advised the planning, zoning and community development offices, on land use issues including permitting, covenants, affordable housing issues, impact fees and alcoholic beverage licensing. He also represents local governments in a retained counsel capacity. He is based in the Miami office.

“We are pleased to recognize the hard work and achievements of these talented lawyers,” Firm Managing Director Mitch Burnstein said. “They have played a vital role in the growth of the firm, and we look forward to their continued success.”

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By way of background, employers regularly grapple with determining whether a worker is an employee or an independent contractor.  A worker who is designated as an employee is generally covered by, among other things, workers’ compensation laws and the FLSA’s minimum wage and overtime requirements, whereas independent contractors are typically excluded from coverage under the same laws.  Additionally, a worker’s status as an employee or an independent contractor creates different liabilities and obligations for an employer under federal and state tax laws.

There has never been one bright-line test to assist employers with determining when a worker is an employee or an independent contractor. Instead, the answer to that question almost always depends on which agency or entity is addressing the issue. For example, while the Internal Revenue Service (“IRS”) and DOL apply different tests to make the distinction between an employee and an independent contractor, there are also many other competing and inconsistent independent contractor tests applied across federal and state courts.  To address this grey area, the DOL intends to revise its interpretation of a worker’s status under the FLSA “to promote certainty for stakeholders, reduce litigation, and encourage innovation in the economy.” [Regulatory Information Number (RIN) 1235-AA34]

Presently, the FLSA provides definitions for “employer,” “employee” and “employ,” but it does not define the term “independent contractor.”  The FLSA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. 203(d); an “employee” as “any individual employed by an employer,” id. at 203(e); and “employ” is defined as being “suffer[ed] or permit[ted] to work,” id. at 203(g).  Courts have historically viewed the “suffer and permit” standard of employment to require an evaluation of the extent of the worker’s economic dependence on his/her employer and have created a multifactor test to analyze whether a worker is an employee or an independent contractor under the FLSA. However, the focus of this analysis has generally rested on whether the worker is dependent on a particular individual, business or organization for work, or is in business for him/herself. Due to the lack of regulatory guidance and inconsistent case law pertaining to this issue, employers have been forced to find fact-specific court decisions or sub-regulatory guidance to determine on a case-by-case basis whether a worker is an employee or an independent contractor.

In response, the DOL’s proposed regulation seeks to adopt the “economic reality” test and to finally define an “independent contractor” as “a person that is in business for him/herself, rather than being economically dependent on the potential employer for work.”  The proposed regulation also establishes the following five (5) factor test to assist employers with determining whether a worker should be classified as an independent contractor:

1. The nature and degree of the employer’s control over the work;
2. The worker’s opportunity for profit or loss based on personal initiative or investment;
3. The amount of skill required in the work;
4. The degree of permanence in the work relationship; and
5. Whether the work is part of an integrated unit of production.

Id.  The DOL’s proposed regulation seeks to provide the greatest weight to the first two (2) “core factors” as being “more probative to the question of economic dependence, or lack thereof” for purposes of determining a worker’s independent contractor status. Id.  If the “core factors” are in conflict, the proposed regulation includes three (3) additional “guidepost” factors for employers to consider.  These “guidepost” factors are essentially meant to support the DOL’s intent to clarify that the parties’ actual practice should be more relevant to a worker’s independent contractor status than what may be contractually or theoretically possible.

If adopted, the DOL’s regulation will become the sole authoritative interpretation for independent contractor status under the FLSA, replacing the DOL’s previous interpretations of independent contractor status applicable to tenants and sharecroppers and certain forestry and logging workers. See 29 C.F.R. 780.330(b) and 29 C.F.R. 788.16(a).

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Chapter 447 of the Florida Statutes provides that “the collective bargaining negotiations between a chief executive officer, or his or her representative, and a bargaining agent shall be in compliance with the provisions of s. 286.011 [Florida Statutes].” Section 447.605(2), Florida Statutes.

Section 286.011, Florida Statutes, states in pertinent part:

(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution . . . at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.

The foregoing provision historically has been interpreted to require that public meetings under Section 286.011, Florida Statutes be held in person.  On March 17, 2020, Governor Ron DeSantis sought guidance from Florida Attorney General Ashley Moody as to “whether, and to what extent, local government bodies may utilize teleconferencing and/or other technological means to convene meetings and conduct official business, while still providing public access to those meetings.”  In AGO 2020-03, AG Moody responded with the following opinion:

Under existing law that, if a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either (1) a statute permits a quorum to be present by means other than in person, or (2) the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency. If such meetings are conducted by teleconferencing or other technological means, public access must be afforded which permits the public to attend the meeting. That public access may be provided by teleconferencing or technological means.

Id. (underline added for emphasis).  Following the issuance of AGO 2020-03, Governor DeSantis issued Emergency Order 20-69[1] (“EO 20-69”), which states in pertinent part:

Section 1. I hereby suspend any Florida Statute that requires a quorum to be present in person or requires a local government body to meet at a specific public place.

Section 2. Local government bodies may utilize communications media technology, such as telephonic and video conferencing, as provided in Section 120.54(5)(b)2., Florida Statutes.

Section 3. This Executive Order does not waive any other requirement under the Florida Constitution and “Florida’s Government in the Sunshine Laws,” including Chapter 286, Florida Statutes.

Pursuant to EO 20-69, local government bodies have been using telephones and video conferencing to establish a quorum and to conduct public meetings while respecting applicable Emergency Orders and public safety directives implemented in response to the COVID-19 public health crisis (encouraging social distancing to avoid public gatherings where possible).

EO 20-69 addresses meetings of a “governing body” or board that require a quorum to be present when official acts or actions are to be taken.  Although collective bargaining negotiations are not meetings of “government bodies” and do not necessitate a quorum of any sort to conduct negotiations, we believe that Sections 1 and 2 of EO 20-69 can be interpreted to permit collective bargaining negotiations to occur without the physical presence of participants at a specific public place provided that negotiations occur via the forms of technology referenced in Section 2 of EE 20-69 and as provided in Section 120.54(5)(b)2, Florida Statutes.

Based on the foregoing, we have determined that municipalities may engage in collective bargaining negotiations with unions representing municipal bargaining units provided the other requirements of Section 286.011, Florida Statutes are met.  In particular, collective bargaining negotiations may be conducted virtually (such as by video conference), provided that (1) proper notice is provided to the public in advance of the scheduled bargaining negotiations; (2) access to the bargaining negotiations is made available to members of the public; and (3) meeting minutes of bargaining negotiations are recorded/prepared.  However, each public employer should be cognizant of any of its own local ordinances, resolutions and/or rules that may need to be considered when noticing and/or conducting collective bargaining negotiations using any remote meeting options.

Should you have any questions about this matter, please feel free to contact any member of our Labor and Employment Division.

[1] EO 20-69 is set to expire on May 8, 2020, unless extended by the Governor.

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Weiss Serota Helfman Cole & Bierman was proud to sponsor the Broward County Bar Association’s first ever South Florida Legal Mentoring Picnic on October 27, 2018 at C.B. Smith Park.  Firm attorneys Milton Collins, Alicia Gonzalez, Chris Saunders, Ashley Daniels, Chanae Wood, and Lindsey Ryder attended the event.

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