Just a reminder - the Florida minimum wage is going up again. Effective January 1, 2012, the minimum wage will increase by $.36, from $7.31 to $7.67 per hour. For tipped employees, the new minimum wage will be $4.65. The Florida minimum wage changes periodically due to cost of living increases.
29 Dec · Thu 2011
Florida Minimum Wage Rising to $7.67 January 1
19 Dec · Mon 2011
DOL's Proposed Changes to FLSA Would Have Big Impact on Home Healthcare Industry
Last week, the DOL issued a proposed rule which would extend FLSA overtime and minimum wage coverage to a group of employees who have previously been exempt - home healthcare workers employed by third-party companies. I have spoken with friends in the home healthcare industry, who have told me that this would amount to a major change in that industry.
A little background - the FLSA covers companies/workers engaged in interstate commerce. In 1974, Congress amended the FLSA to extend coverage to many domestic workers - maids for example - under the guise that these individuals, even if employed in private homes, affect interstate commerce. There has been, however, a total exemption (from both overtime and minimum wage) for employees employed "to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves". These are home healthcare workers.
The DOL proposed rule, among other things, will do away with the exemption for employees employed by a third-party company to provide "companionship services" in private homes. If, however, the employee is employed directly by the private household, the employee would still be exempt from overtime and minimum wage.
The DOL says that these changes are warranted because of changes in the home healthcare industry. The DOL stated: "[d]ue to significant changes in the home health care industry over the last 35 years, workers who today provide in-home care to individuals are performing duties and working in circumstances that are markedly different than when the companionship services regulations were first promulgated."
The proposed rule will be subject to comments, and no doubt the home healthcare industry will vigorously oppose this. We will have to wait and see what happens, but this could have a big impact on the healthcare industry in Florida.
The DOL also proposed a couple of other important changes: (1) extending overtime and minimum wage coverage to live-in maids employed by third party companies; and, (2) requiring employers (including private households) of live-in help to keep time records for their live-in employees.
I have represented several employers in cases filed by domestic workers, and they are always complicated. Anyone who has the means to employ live-in help should contact an employment attorney to make sure that they are properly paying their employees. In my experience, a number of local Florida plaintiff's attorneys are targeting these types of workers as potential clients.
21 Jun · Tue 2011
Mind the Gap: A Failure to Pay Wages Does Not Always Violate the FLSA
We recently settled a Fair Labor Standards Act retaliation case on behalf of an employer for a paltry sum that barely allowed the plaintiff’s attorney to cover his costs. Our client was delighted. The central problem with plaintiff’s case was that he and his attorney failed to realize from the outset that the plaintiff’s underlying complaint about not being paid for a few hours he worked on a single day – the alleged “protected activity” – was not a complaint about a violation of the FLSA, but was in the nature of a “gap time” claim.
Gap time is working time that is not covered by the overtime provisions of the FLSA because it does not exceed the 40 hour per week threshold, and is not covered by the minimum wage provisions because the employee earns more than minimum wage for the work week. Gap time may be the subject of a common law claim for breach of contract, but it is not regulated by the FLSA. See Thrower v. Peach County, 2010 U.S. Dist. LEXIS 116401, 13-14 (M.D. Ga. Nov. 2, 2010) (noting that the “FLSA provides no remedy for a worker who has received at least minimum wage for his or her nonovertime hours, even though they may have been paid less than their actual hourly rate…. Rather, FLSA only governs minimum wage and overtime pay violations.”); Davis v. City of Loganville, 2006 U.S. Dist. LEXIS 20798, 2006 WL 826713, at *9 (M.D. Ga. Mar. 28, 2006) (“[E]mployers are not obligated under the FLSA to compensate employees for ‘gap time,’ as long as the employees receive at least the statutory minimum wage for all nonovertime hours worked.”); Bolick v. Brevard County Sheriff's Dept., 937 F. Supp. 1560, 1568 (M.D. Fla. 1996) (“As a general rule, an employee cannot succeed on a claim under the FLSA if his average wage for a period in which he works no overtime exceeds minimum wage.”) (collecting cases). See also http://www.dol.gov/WHD/opinion/FLSA/2004/2004_10_08_14_FLSA_GapTime.htm (Department of Labor opinion letter noting that “[a]s long as overall earnings for the workweek (exclusive of gap time pay) equal or exceed the amount due at minimum wage for all hours worked, including gap time hours, there is no violation of the FLSA in a non-overtime workweek.”).
Because gap time is not regulated by the FLSA, it follows that an employee’s complaint about not being paid for gap time should not be deemed protected activity under the FLSA. That is because, although a complaint need not refer to the FLSA by name, it must relate to something regulated by the FLSA. See Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999). As the Supreme Court recently held, the complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417, *23 (Mar. 22, 2011) (emphasis supplied). See also Hardwick v. Complete Skycap Services, Inc., 2007 WL 2050867 (9th Cir. July 11, 2007) (unpublished) (“the complaints must specifically concern FLSA violations”).
While I have not found any cases that address whether a complaint about not being paid for gap time can constitute protected activity, courts have held that complaints about other pay-related issues that are not regulated by the FLSA do not constitute protected activity. For example, in Alvarado v. I.G.W.T. Delivery Systems, Inc., 410 F. Supp. 2d 1272 (S.D. Fla. 2006), the court held that the plaintiffs failed to make a case for retaliatory discharge under the FLSA where they alleged they were wrongfully discharged for signing and submitting two letters to the defendant requesting, among other things, an increase in salary. The court stated: “The letters signed by the Plaintiffs…fail to meet the elements required for a prima facie case under 29 U.S.C. § 215(a)(3). The letters themselves do not appear to clearly assert rights under the statute in that they make no specific mention of overtime pay or invoke the FLSA.” Id. at 1279.
Similarly, in Morke v. Archer Daniels Midland Co., 2010 U.S. Dist. LEXIS 57357 (W.D. Wis., June 10, 2010), the plaintiff complained that that defendant was engaged in “payroll manipulation and conspiracy to commit fraud” by shorting plaintiff “32 hours of vacation pay.” Id. at *5. The court noted that “failure to pay vacation hours is not a violation of the FLSA because payments for vacation times are not regarded as compensation for working.” Id. at *5-6 (citing 29 C.F.R. § 778.219). “Thus,” the court held, “plaintiff's complaints about denial of vacation pay were not protected under the FLSA and no FLSA-based retaliation claim can arise from them.”
The same logic should apply to complaints about an employer’s failure to pay for gap time. At a pretrial hearing in our recent case, the judge seemed to agree, which is why we were able to settle our client’s case for a nuisance value.
The lesson here is clear. The next time you are defending an FLSA claim based on a failure to pay wages, consider whether the employee is complaining about a minimum wage or overtime violation, or, alternatively, whether the employee is really complaining about a failure to pay wages for gap time. Recognizing this distinction can mean the difference between victory and defeat.
05 May · Thu 2011
Florida's Minimum Wage Rises on June 1
Florida's minimum wage will rise to $7.31 per hour on June 1, 2011. Currently, employers in Florida are required to pay the federal minimum wage of $7.25 per hour. Employers must pay the higher of the two wage levels.
For tipped employees, because Florida's Constitution caps the tip credit at $3.02, employers must pay a direct wage of $4.29 (i.e. $7.31 - $3.02) effective June 1.
You can read more details here.
Update: A colleague asked me how this happened mid-year, in light of the fact that the Florida Minimum Wage Act provides that minimum wage increases are to go into effect on January 1. The answer, I have since learned, is that a Florida judge ruled that Florida's Agency for Workforce Innovation had miscalculated the minimum wage, and ordered it to be increased.
22 Feb · Tue 2011
Florida Employment Law 101: The Basics
For Florida employers, or those employers thinking of employing workers in Florida, sometimes it makes sense to go back to the basics. With that in mind, here's a brief summary of some of the major employment laws in Florida. This list is not exhaustive but does provide a good overview of the law in this area. My thanks go out to associate Teresa Maestrelli, who put this together.
Wage and Hour Law
· The minimum wage applies to all employees in the state who are covered by the federal minimum wage. On July 24, 2009 the new Federal minimum wage of $7.25 replaced Florida’s minimum wage.
· The definitions of “employer”, “employee”, and “wage” for state purposes are the same as those established under the federal Fair Labor Standards Act (FLSA).
· Employees who are not paid the minimum wage may bring a civil action against the employer or any person violating Florida’s minimum wage law. The state attorney general may also bring an enforcement action to enforce the minimum wage.
Wage for Tipped Employees
· Employers of “tipped employees” who meet eligibility requirements for the tip credit under the FLSA may count tips actually received as wages under the FLSA.
· The employer must pay “tipped employees” a direct wage. The direct wage is calculated as equal to the minimum wage ($7.25) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.23 as of July 24, 2009.
· Employers are required to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees are employed. This poster requirement is in addition to the federal requirement to post a notice of the federal minimum wage.
· Employers who hire minors must display a poster in a conspicuous place on the property or place of employment notifying them of the Child Labor Law.
· Employers are required to keep waiver authorizations, proof of age documentation, and proof of exemption from minor status for all employees who are under 18. These records must be maintained for the duration of the minor’s employment.
· Employers are not required by law to have permission from the parents to employ their minor child.
· "Work Permits" and/or "Working Papers" are not required in Florida and are not issued by either the schools or any governmental agency in Florida.
· Minors are limited in the hours they may work to permit them to attend and complete their educational responsibilities.
· Minors may work no more than 4 consecutive hours without a 30-minute uninterrupted break.
· Minors are exempt from the hour limitations of the Child Labor Law if they have been married, graduated from an accredited high school or hold a high school equivalency diploma, served in the military, have been authorized by a court order, or been issued a partial waiver by the public school or the Child Labor Program.
· Minors are limited in the types of occupations they may perform for safety reasons.
· Minors have the right to request that the Child Labor Office exempt them from parts of the Child Labor Law.
· Employment of minors in violation of Florida child labor laws may result in fines up to $2,500 per offense and/or be guilty of a second-degree misdemeanor.
Employment Discrimination and Anti-Retaliation Laws
· The Act applies to employers with 15 or more employees and prohibits employment discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.
· Complaints of discrimination must be filed with the Florida Commission on Human Relations (FCHR) within 365 days of the date of the alleged discriminatory incident.
· The Act contains an anti-retaliation provision which protects employees who have opposed any unlawful discrimination practice and/or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.
· Florida’s private sector whistleblower statute protects employees who object to, or refuse to participate in, an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
· Florida’s public sector whistleblower act protects government employees and employees of government contractors who object in specified ways to wrongdoing in the workplace.
· An employer is not required to pay an employee for responding to a jury summons or for serving on a jury.
· An employer may not discharge, penalize, threaten or otherwise coerce an employee because the employee receives or responds to a summons or serves as a juror.
· Florida's military affairs law protects the reemployment rights of National Guard members returning from state active duty. The law prohibits an employer from discharging a returning member for the one-year period following the date the member returns to work, except for cause.
· At the same time, however, the law provides certain exceptions under which employers are not required to allow such members to return to work.
· The law applies where the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not apply.