The Florida Bar

Florida Bar Journal

Florida’s New Minimum Wage Provision: An Overview of the Amendment to the Florida Constitution

October, 2005 Misc

I n November 2, 2004, Floridians voted to amend the Florida Constitution by adding a minimum wage provision, and on May 2, 2005, the Minimum Wage Amendment went into effect. The Florida Minimum Wage Amendment, codified as Art. X, §24 of the Florida Constitution, increased the minimum wage $1 above the federal minimum wage rate to $6.15 per hour. This article describes the principle provisions of the amendment, proposed implementing legislation, and some proposed answers to the questions raised by the amendment.

Provisions of the Amendment
Policy Statement
The Minimum Wage Amendment opens with a declaration of Florida public policy regarding payment of the minimum wage. The amendment states that all working Floridians are entitled to be paid a minimum wage sufficient to provide a decent and healthy life, that protects employers from unfair, low wage competition; and does not force working Floridians to rely on taxpayer-funded public services.1

The Minimum Wage
The key language of the amendment implementing the minimum wage provides:

Employers shall pay employees wages no less than the Minimum Wage for all hours worked in Florida. Six months after enactment, the Minimum Wage shall be established at an hourly rate of $6.15. On September 30th of that year and on each following September 30th, the state Agency for Workforce Innovation shall calculate an adjusted Minimum Wage rate by increasing the current Minimum Wage rate by the rate of inflation during the twelve months prior to each September 1st using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index as calculated by the United States Department of Labor. Each adjusted Minimum Wage rate calculated shall be published and take effect on the following January 1st. For tipped Employees meeting eligibility requirements for the tip credit under the FLSA,2 Employers may credit towards satisfaction of the Minimum Wage tips up to the amount of the allowable FLSA tip credit in 2003.3

In essence, the amendment simply adds a dollar per hour to the current federal minimum wage and provides for annual adjustments of the wage. This language leaves open the question, however, as to whether the state wage is applicable to all FLSA employers.

Enforcement
Persons alleging a violation of the Florida Minimum Wage Amendment may bring a civil action against “an Employer or person violating th[e] amendment”4 in any court of competent jurisdiction. Thus, an action may lie, not only against the employing business, but also potentially against supervisors responsible for employees not paid a minimum wage. The available relief mirrors that available under the FLSA: A prevailing employee is entitled to recover the full amount of back wages unlawfully withheld, plus the same amount as liquidated damages, and reasonable attorneys’ fees and costs.5 In addition, when appropriate, the employee may receive equitable relief such as reinstatement or injunctive relief. The amendment also provides for a fine of $1,000 per violation payable to the state for willful violations. The state attorney general or other official designated by the state legislature may also bring a civil action to enforce it.6 The amendment provides that a multi-plaintiff enforcement action may be brought by class action pursuant to Rule 1.220 of the Florida Rules of Civil Procedure.7

Under the FLSA, individuals have only two years in the case of nonwillful violations, or three years in the case of willful violations, to seek payment of minimum wages owed to them and to secure relief from retaliation.8 The FLSA statute of limitations has been interpreted as a rolling two- or three-year period prior to the filing of suit. One of the most far-reaching effects of the Florida Minimum Wage Amendment is to extend the statute of limitations to four years in the cases of nonwillful violations and five years in the case of willful violations.9 Under the amendment, an employee could recover up to five years of back pay.

Retaliation Prohibited
The Florida Minimum Wage Amendment, like the FLSA, prohibits employers from discriminating in any manner, or taking adverse action against any person, in retaliation for exercising rights protected under the amendment. The amendment also specifically states that the protection against retaliation lies not only against employers, but also “against any other party.”10 The right to be free from retaliation expressly covers actions including, but not limited to, filing a complaint, informing any person about any party’s alleged noncompliance with the amendment, and informing and assisting any person in asserting his or her potential rights under the amendment.11 Thus, employers, potential employers, and others may not refuse to hire an individual or otherwise retaliate against an individual as a result of action taken in enforcing the rights protected by the amendment for the individual or others.

Additional Legislation, Implementation, and Construction
The Florida Minimum Wage Amendment gives the state legislature the authority to raise the applicable minimum wage rate, to extend coverage of the minimum wage to employers or to employees not covered by the amendment, to reduce the tip credit, and to establish additional remedies or fines for violations of the amendment. Notwithstanding the fact that the Florida Minimum Wage Amendment was self-effectuating, it also gives the legislature, by statute, or the Agency for Workforce Innovation, by regulation, the authority to adopt any measures appropriate to implement the amendment.

The amendment specifically provides that it is not to be construed to preempt or otherwise limit the authority of the legislature or other public body to adopt or enforce any other law, regulation, requirement, policy, or standard that provides for payment of higher or supplemental wages or benefits or extends such protections to employers or employees not covered by the amendment.12

One of the most significant provisions states that in construing the amendment, “case law, administrative interpretations, and other guiding standards developed under the federal FLSA” are to “guide the construction of this amendment and any implementing statutes or regulations.”13

Severability
To help protect against constitutional attack or attack under federal statutes, the Florida Minimum Wage Amendment contains a severability clause. The severability clause provides that where any provision of the amendment, or its application to any person or circumstance, is held to be unconstitutional, that determination narrowly applies only to the particular part of the amendment or persons or circumstances, and does not otherwise affect the remaining provisions of the amendment.14

Proposed Implementing Legislation
The text of the Florida Minimum Wage Amendment raises a number of questions regarding its application. These include, for example, whether all employees, regardless of the exempt status under the FLSA, must be paid the minimum wage for all hours worked; whether punitive damages may be awarded in wage and retaliation actions; whether a prevailing plaintiff can receive economic awards not specifically provided for in the amendment; whether the good faith defense is available to employers to eliminate liquidated damages; and when the statute of limitations begins to run. During the last legislative session, virtually indistinguishable bills, H.B. 1709 and S.B. 2638, were proposed as implementing legislation. However, time ran out for the proposed legislation and both pieces of legislation died without passage. The failed House and Senate bills would have filled in a number of gaps and would have answered some of the important questions raised by the amendment.

The failed legislation provided that only those who were entitled to receive a minimum wage under the FLSA and its implementing regulations would be eligible to receive the Florida minimum wage. The bills specifically incorporated §§213 and 214 of the FLSA, as implemented by the applicable regulations and as interpreted by the Secretary of Labor, into the act.15 Without such additional implementing language, the amendment could be read to require that all employees, regardless of the white collar exemptions they meet under the FLSA or the manner in which they are compensated, must be paid at least a minimum wage of $6.15 per hour for all hours worked.16

Both bills added that enforcement actions were subject to offers of judgment as provided by F.S. §768.79 (2004), and that punitive and other damages not expressly authorized by the bills could not be awarded to a prevailing plaintiff.17

Both the House and Senate versions of the failed implementing legislation also extended the affirmative defense of “good faith” to employers who could prove by the preponderance of the evidence that they had not paid minimum wages, in fact owed, in good faith. According to the failed legislation, a finding of good faith would have given a court the discretion to deny or limit liquidated damages.18 The proposed legislation also provided the specific point at which the statute of limitations begins to run.19 Like the FLSA, the legislation established the statute of limitations as commencing on the date of the alleged violation.20 The failed legislation also provided that the CPI used for annual adjustments to the minimum wage was not to be seasonally adjusted.21

Another important provision of the failed legislation would have required aggrieved individuals to give employers 15 days written notice of the alleged violation of the amendment and their intent to file a lawsuit. The notice would also have required the individual to assert the minimum wage to which the individual claims he or she was entitled, with the approximate work dates and hours, and the alleged amount of the minimum wage owed through the date of the notice. During the notice period, the statute of limitations period was tolled. However, no such notice was required when an aggrieved individual complained only of retaliation.22

Despite these bills not being enacted, the major sources of answers to the questions raised by the amendment are identified in the amendment itself. The amendment states: “It is intended that case law, administrative interpretations, and other guiding standards developed under the federal FLSA shall guide the construction of this amendment and any implementing statutes or regulations.”23

Assuming that the case law, administrative interpretations, and other standards developed under the federal FLSA are to guide the construction of the Florida Minimum Wage Amendment even in situations in which its language may differ from that of the FLSA, implementing legislation is largely unnecessary. If the FLSA were applied, the answers to the issues raised above would be as follows:

1) Sections 213 and 214 of the FLSA would apply to shield employers from liability from the minimum wage where there are wage and hour minimum wage exemptions and other special provisions covering the employees under the FLSA.24

2) The 11th Circuit has already stated that punitive damages are not available to FLSA plaintiffs in wage or retaliation cases.25

3) Damages not specified in the amendment would be available only to the extent allowed under the FLSA. Under the FLSA, compensatory damages are not available in wage cases.26 However, whether compensatory damages are available in retaliation cases in the 11th Circuit is still an open question.27

4) Under the FLSA, the good faith defense is available to employers in wage cases. If an employer proves that it acted in good faith and reasonably, the court can eliminate or decrease the amount of back pay and liquidated damages in limited situations in wage cases, or, more commonly, decrease or eliminate liquidated damages altogether.28 Relying on oral advice from the Department of Labor, Wage and Hour Division is not a basis for a finding of good faith.29

5) The statute of limitation begins to run when the cause of action accrues.30

Conclusion
Most of the answers sought in enforcing the Florida Minimum Wage Amendment can be found in the amendment itself, or by applying case law, regulations, and other administrative standards or interpretations developed under the FLSA. Creating standards different than those of the FLSA will result in more confusion and litigation. Therefore, enacting implementing legislation is not essential. However, employers would welcome a 15-day pre-suit notice requirement for wage suits, thereby giving employers the opportunity to resolve any minimum wage error without the expense of litigation. We will have to wait, however, until the next session of the legislature to see what, if any, implementing statute will be enacted.

1 Fla. Const. art. 10 §24(a).
2 The Fair Labor Standards Act, 29 U.S.C. §201 et seq.
3 Fla. Const. art. 10 §24(c).
4 Fla. Const. art. 10 §24(e).
5 Id.
6 Id.
7 Id. [Editor’s Note: The class action and collective action mechanisms will be addressed further in November’s Labor and Employment Law Section column].
8 29 U.S.C. §255(a) (2005).
9 Fla. Const. art. 10 §24(e).
10 Fla. Const. art. 10 §24(d).
11 Fla. Const. art. 10 §24(d).
12 Fla. Const. art. 10 §24(f).
13 Id.
14 Fla. Const. art. 10 §24(g).
15 H.R. 1709 2(3), 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 § 2(3), 107 Leg., Reg. Sess. (Fla. 2005).
16 Fla. Const. art. 10 §24(c).
17 H.R. 1709§§2(6)(c)(d) & 2(6)(d), 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 §§ 2(6)(c) & 2(6)(d), 107 Leg., Reg. Sess. (Fla. 2005).
18 H.R. 1709 §2(6)(c)1, 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 §2(6)(c)1, 107 Leg., Reg. Sess. (Fla. 2005).
19 H.R. 1709 §2(8), 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 §2(8), 107 Leg., Reg. Sess. (Fla. 2005).
20 29 U.S.C. §255 (2005).
21 H.R. 1709§2(4)(a), 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 §2(4)(a), 107 Leg., Reg. Sess. (Fla. 2005).
22 H.R. 1709§2(6), 107 Leg., Reg. Sess. (Fla. 2005); S. 2638 §2(6), 107 Leg., Reg. Sess. (Fla. 2005).
23 Fla. Const. art. 10 §24(f).
24 29 U.S.C. §§213, 214 (2005).
25 Snapp v. Unlimited Concepts, Inc., 208 F.3d. 928,931 (11th Cir 2000).
26 Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348 (11th Cir. 2000).
27 See Bogacki v. Buccaneers LTD. Partnership, 370 F. Supp.2d 1201, 1205 (M.D. 2005); Bolick v. Brevard County Sheriff’s Office Department, 937 F.Supp. 1560,1566 (M.D. Fla. 1996); but see Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108 (7th Cir. 1990)(Emotional and punitive damages are available as relief for violation of the retaliation provision of the FLSA, 29 U.S.C. §215(a)(3) which provides for “legal” relief “without limitation.”).
28 29 U.S.C. §§259-60 (2005); 29 C.F.R. §790.22 (2004).
29 Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C. §201 et seq.; Portal-to-Portal Act of 1947, §§9, 10, 29 U.S.C. §§258, 259 (2005).
30 29 U.S.C. §255 (2005).

Robin Greiwe Midulla is a shareholder of Robin Greiwe Midulla, P.A., Tampa, and of counsel to Constangy, Brooks and Smith, L.L.C. She represents private and public sector employers in labor and employment law matters, including union avoidance, employment discrimination, wage and hour law, and employment litigation. She received her J.D. from Stetson College of Law.
This column is submitted on behalf of the Labor and Employment Law Section, F. Damon Kitchen, chair, and Frank E. Brown, editor.