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Florida Minimum Wage to Increase to $7.93

A quick note - effective January 1, 2014, the Florida minimum wage will increase to $7.93 per hour.  This is a $.14 increase of the 2013 minimum wage.  The Florida minimum wage is recalculated each year to keep in step with the federal Consumer Price Index.  The federal minimum wage remains at $7.25.

Broward County Wage Theft Ordinance in Effect January 2

The new Broward County "wage theft" law went into effect last week.  Miami-Dade County enacted a similar ordinance a couple of years ago.  The Broward County ordinance establishes an administrative scheme for employees (defined as any employee working in Broward County other than federal and state employees, or employees of Indian tribes) to bring claims for unpaid wages.  The threshold amount to bring a claim is $60.  The administrative scheme allows for discovery, and mini-trials before hearing officers.  The hearing officer can award back wages, an equal amount of liquidated damages, and attorneys' fees.  There is no private right of action in court under this ordinance.  The ordinance requires Broward County employers to pay earned wages within 14 days. 

I have not seen very many claims filed under the Miami-Dade ordinance, and doubt that there will be many filed pursuant to the Broward County one.  If an employer fails to pay earned wages - overtime or otherwise - there is no shortage of lawyers in our community who specialize in representing employees in unpaid wages suits in court.  Indeed, South Florida leads the nation in overtime lawsuits filed under the Fair Labor Standards Act.  In my opinion, this new ordinance is unnecessary, because it largely duplicates existing remedies.  Only time will tell whether employees take advantage of this new remedy, but all businesses with employees in Broward should be aware of this new law.


Florida Minimum Wage Rising to $7.67 January 1

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.


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 (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.


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.



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

Minimum Wage

·                     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.

Child Labor

·                     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

Florida Civil Rights Act

·                     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.

 Whistleblower Protection

·                     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.


Jury Duty

·                     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.

 Military Law

 ·                     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.



The Florida Employer

Reporting employment and immigration law developments that affect Florida employers.

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« April 2014
Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.