Legislation implementing the recently approved Florida Constitutional Amendment establishing a state minimum wage requirement is currently pending and likely to be approved.
Legislation implementing the recently approved Florida Constitutional Amendment establishing a state minimum wage requirement is currently pending and likely to be approved. Although the Constitutional Amendment provides that implementing legislation is not necessary to enforce the minimum wage requirements, the Amendment permits the state legislature to adopt any measures appropriate for the implementation of the Amendment.
Following are the highlights of the proposed legislation.
- The legislation amends Fla. Stat. § 95.11, providing for a five year statute of limitations for willful violations of the Florida Minimum Wage Act and a four year statute of limitations for non-willful violations (compared to the two and three-year statute of limitations for violations of the federal Fair Labor Standards Act).
- The legislation creates the Florida Minimum Wage Act, Fla. Stat. § 448.110, which provides for the state minimum wage and the annual wage adjustment based on the Consumer Price Index.
- The Florida Minimum Wage Act currently provides that effective May 2, 2005, employers must pay employees a minimum wage of $6.15 per hour. Only those individuals entitled to receive the federal minimum wage under the Fair Labor Standards Act are entitled to the state minimum wage.
- The Agency for Workforce Innovation is to adjust the state minimum wage for inflation annually, on September 30 of every year. The Agency made this adjustment on September 30, 2005. Effective January 1, 2006, the Florida minimum wage increases to $6.40 per hour. The Agency will make this adjustment in every year
- The legislation also provides that it is illegal for an employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected by the Minimum Wage Act. These rights include filing a complaint, informing any person of his or her rights under the law, and assisting him or her in asserting those rights.
- The legislation provides for a civil action by anyone aggrieved by a violation of the Minimum Wage Act. However, prior to bringing an action for unpaid minimum wages under the law, the aggrieved individual must inform the employer in writing of the intent to file such an action and must identify the minimum wage to which the individual claims to be entitled, the actual or estimated work dates and hours for which payment is sought, and the total amount of unpaid wages through the date of the notice. This notice requirement has no counterpart in the federal Fair Labor Standards Act.
- The employer has 15 days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claims to the satisfaction of the aggrieved individual. The statute of limitations is tolled during this 15-day period. If the claim is not resolved during this time period, the aggrieved individual can file suit in accordance with the contents of the notice provided to the employer.
- An employee who prevails in a lawsuit claiming unpaid minimum wages under the Florida Minimum Wage Act shall be awarded the unpaid minimum wages unlawfully withheld, an equal amount of liquidated damages, and attorney fees and court costs. If the court finds the employer acted in good faith (consistent with the case law under the Fair Labor Standards Act) and had a reasonable basis for believing it was not violating the Minimum Wage Act, the court may, in its discretion, award no liquidated damages or an amount less than the value of the unpaid minimum wages.
- A successful plaintiff may also be awarded equitable relief, such as reinstatement or injunctive relief. Punitive damages are not available for violations of the Minimum Wage Act.
- The legislation provides that class actions are permitted for violations of the Minimum Wage Act and that in any such action, the plaintiffs must prove by a preponderance of the evidence the identity and individual damages of each class member.
Employers' Bottom Line:
The proposed legislation reiterates the provisions of the Constitutional Amendment establishing the state minimum wage. However, the proposed legislation adds a requirement that employees give an employer notice of an alleged violation of the Minimum Wage Act and time to correct the alleged violation before filing suit. Employers should also note that the adjusted minimum wage of $6.40 per hour is effective January 1, 2006.
If you have any questions regarding the proposed legislation or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.