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Florida Employers Must Post Notice of New Minimum Wage as of January 1

  • October 19, 2006

Florida employers already should be aware that the Minimum Wage Amendment to the Florida Constitution was passed by the voters in 2004 and became effective May 2, 2005.  Effective January 1, 2007, the Florida minimum wage moves to $6.67 per hour (up from $6.40 per hour), with a minimum wage of at least $3.65 per hour (up from $3.38 per hour) for tipped employees. 

Although the amendment required no implementing legislation, in 2005 and 2006 the Florida Legislature passed laws relating to the minimum wage (§§448.110 and 448.109, F.S., respectively).  Section 448.109, which takes effect January 1, 2007, institutes for the first time a posting requirement and specifies the language and dimensions for the required notice.  It also specifies that the notice must be posted in English and Spanish.  A copy of the poster and the requirement can be found on the Agency for Workforce Innovation (AWI) website:

Section 448.110 codified the constitutional provision and specifically incorporated the exemptions of the Fair Labor Standards Act (FLSA).  The statute made clear that only those individuals working in Florida and entitled to receive the FLSA minimum wage shall be eligible to receive the Florida minimum wage pursuant to the constitutional amendment. 

In addition, section 448.110 provides a 15-day "safe harbor" for employers, establishes the burden of proof in class action cases brought under the amendment as "preponderance of the evidence," and limits damages in class action cases to proven unpaid wages of identified individual class members.  The legislation also prohibits in all cases the award of punitive damages and limits relief to what is sufficient to remedy the violation, such as reinstatement or an injunction.

The 15-day safe harbor provision requires any aggrieved person, prior to bringing any claim for unpaid minimum wages, to notify the employer and identify the minimum wage to which the person claims to be entitled.  The notice must include the actual or estimated days and hours worked for which payment is sought, and it must state the total amount of the claimed unpaid wages through the date of the notice.  The employer then has 15 calendar days after receipt of the notice to pay the total amount of the unpaid wages claimed, or otherwise resolve the claim to the satisfaction of the person aggrieved.  The four and five-year statutes of limitation on such claims (also referenced in section 448.110 as provided for by section 95.11) would be tolled during the 15-day period.  Should the employer not pay or settle, the claim may then be brought, as long as it is consistent with the contents of the notice.  Such claims are also made specifically subject to Florida's offer of judgment statute.

Section 448.110 prescribes the index to be used by the agency for Workforce Innovation in annually adjusting the Florida minimum wage and requires publication by October 15 of each year on the websites of the AWI and the Department of Revenue the adjusted minimum wage to be effective January 1, and where general revenue is appropriated for the purpose, to mail notice of the change to each employer registered in the unemployment compensation database.

Section 448.110 lends clarity, removes some uncertainty, and provides some protection against opportunistic lawsuits.  It may even have a salutary carry-over effect on FLSA claims since any unpaid minimum wage claim under the minimum wage amendment would presumably subsume any FLSA claim.   

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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