On July 1, 2007, a new law went into effect in Florida that requires employers of 50 or more employees to provide a leave of absence to employees who are the victims of domestic violence. To our knowledge, the law is the only Florida statute mandating private-sector employers to provide employees with leave.

Although the new law applies to employers who have 50 or more employees, the statute does not mandate that the 50 employees be located in Florida. Until there is clarification through administrative rules or case law, employers with 50 or more employees should heed the statute’s mandate, even if the number of employees actually located in Florida is fewer than 50.

Eligibility
To be eligible for the leave, the employee must have been employed by the employer for three or more months. Again, the statute is somewhat unclear as to whether the employee must be employed for three months at the time of the request for leave or at the time the leave commences. Until there is clarification, employers may wish to provide the most favorable and broad interpretation of the statute to the requesting employee.

The statute requires the covered employer to permit an eligible employee to request and take up to three working days of leave in any 12-month period if the employee or a family or household member of the employee is a victim of domestic violence.

The employee taking the leave must first exhaust all annual or vacation leave, personal leave, and sick leave, unless the employer waives the requirement to exhaust other accrued leave. The three days of leave under the statute is either paid or unpaid at the employer’s discretion.

The statute permits the employee to take the three days of leave to do any of the following:

Seek an injunction to protect against domestic or other violence;
Obtain medical care or mental health counseling for the employee or family or household member as a result of domestic violence;
Obtain services from a victim-services organization;
Make his or her home secure;
Seek legal assistance in addressing issues arising from the act of domestic violence; and
Attend and prepare for a court-related proceeding arising from the act of domestic violence.

Advance Notice
The employee must provide the employer with appropriate advance notice, as required by the employer’s policy, except in cases of imminent danger. The employer may also require that the employee requesting leave provide documentation establishing the act of domestic violence. Presumably, a police report, court hearing, trial notice, or subpoena would suffice. The employer, in turn, must keep all information relating to the employee’s leave confidential.

Employers may not interfere with the employee’s exercise of his or her rights under the statute. Similarly, employers may not discharge, demote, suspend, retaliate, or otherwise discriminate against an employee for exercising his or his rights under the statute.

An employee who believes his or her rights were violated may bring a civil suit for damages and equitable relief in state circuit court. As damages, the aggrieved employee may seek all wages and benefits that would have been due to him or her but for the violation of the statute.

Covered employers should draft and implement a policy governing leave under the new statute if they have not done so already. Because of this law’s similarity to the federal Family and Medical Leave Act (FMLA), Florida employers may also wish to review their FMLA leave policies when adopting a policy under the new statute. This would assist them in ensuring consistency in their leave policies and practices.

This article was originally published in the Boca Raton/Delray Beach News.

Larry Corman, a partner in Hodgson Russ’s Business Litigation and Employment Litigation Practice Groups, concentrates his practice in commercial litigation, employment discrimination, deceptive trade practices, covenants not to compete, and transactional fraud areas. He is admitted to practice in Florida (1983); the U.S. District Court for the Southern District of Florida (1989); and the U.S. Court of Appeals, Eleventh Circuit (1990).

As a partner at Hodgson Russ, Glenn M. Rissman focuses his practice primarily on labor and employment litigation involving Title VII, Section 1981, ADA, ADEA, FMLA, the WARN Act, FLSA, ERISA, and the Florida Civil Rights Act. He is admitted to practice in Florida (1991); the U.S. District Courts for the Southern (1991), Middle (1994), and Northern (2005) Districts of Florida; and the U.S. Court of Appeals for the Ninth and Eleventh Circuits (1991).