On November 2, 2004, Florida votes overwhelmingly approved a constitutional amendment to require all employers with employees in Florida to pay a minimum wage of $6.15 per hour, effective in six months. Thereafter, since the minimum wage is linked to the consumer price index, it will adjust automatically each year. Please note that due to some uncertainty in the wording of the amendment and court challenges, the exact date when employers must begin paying the new minimum wage is being reviewed. We will continue to keep you advised as developments occur.
The new Florida minimum will supersede the current $5.15 minimum wage under the federal law Fair Labor Standards Act for employees in Florida. The new minimum wage may be reduced by tip credits, as the amendment explicitly provides for such offsets. Although the amendment does not similarly address meal allowances, it is too early to tell whether an offset may be allowed.
It appears the amendment incorporates by reference all the requirements of the federal Fair Labor Standards Act, however, the amendment is not clear and probably will require litigation to resolve the ambiguities. There are no changes imposed on the FLSA rules for the payment of overtime to Florida employees.
In addition, the constitutional amendment creates a new private cause of action against an employer that fails to pay the minimum wage, or if the employer retaliates against an employee for filing a complaint or informing any person about any party's non-compliance.
The new cause of action is different from the right to sue under the FLSA in several respects. First, the penalties for violations are different, which means the aggrieved employee can recover more in damages under the Florida amendment. Second, employees can pursue the claim in state court, as opposed to federal court for FLSA claims, where the forum generally is more favorable to employers.
To prepare for the wage increase, employers should ensure all jobs are correctly designated as exempt or non-exempt, with a written analysis explaining the designations in the event the employer is challenged in court. Additionally, the payroll department must be prepared for the possible increase of some wages, including the accompanying paperwork or personnel action forms. Employers also may decide to reevaluate their pay structure to avoid a noncompetitive or inequitable result.
Jackson Lewis attorneys in the Miami and Orlando offices are available to discuss these and related wage and hour issues impacting organizations with employees in Florida.