Wage and Hour Blog
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Florida Wage and Employment

Dolley Law is devoted to assisting clients with their wage and hour needs. We have substantial legal experience in matters such as overtime disputes and minimum wage violations. We have a demonstrated history of success in representing clients in wage and hour disputes. If you are seeking legal representation or assistance in connection with these matters, please contact us.

Florida Minimum Wage Law

Florida currently has a higher minimum wage than the minimum wage required by the Fair Labor Standards Act (“FLSA”). See 29 U.S.C. § 206(a)(1)(C); Art. X § 24(c), Fla. Const. The FLSA sets the federal minimum wage at $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). As of 2020, employers in Florida must pay non-exempt employees at least $8.56, but this rate is set to change each year. By September 30 of each year, Florida’s Agency for Workforce Innovation will announce the new minimum wage for the upcoming year after it is adjusted according to the Consumer Price Index, published by the U.S. Department of Labor. Art. X § 24(c), Fla. Const. This practice is intended to adjust the minimum wage to current costs of living.

By September 30 of each year, Florida’s Agency for Workforce Innovation will announce the new minimum wage for the upcoming year after it is adjusted according to the Consumer Price Index, published by the U.S. Department of Labor. Art. X § 24(c), Fla. Const. In 2004, Florida amended its constitution to provide for minimum wage rights. Art X § 24(c), Fla. Const. Per that constitutional amendment, the minimum wage in 2020 is $8.56 per hour.

However, during the 2020 election cycle, Florida voters approved another constitutional amendment on minimum wage rights. This amendment—known as “Amendment 2”—will increase wage each year until 2026 when it will be $15.00 per hour. The first increase of the minimum wage under Amendment 2 is set to take place on September 30, 2021 at which time it will increase to $10.00 per hour.

The Florida Constitution shows deference to the definitions and interpretations of the FLSA. See Art. X, § 24(b), Fla. Const.; Fla. Stat. § 448.110(3). For example, when considering whether an employee is exempt from state minimum wage laws, the rules and interpretations of the FLSA will apply. Id.

Other aspects of the FLSA and Florida minimum wage laws are similar. Both allow employees who regularly receive tips to receive an hourly rate of pay less than minimum wage. 29 C.F.R. 516.28(2019); Art. X, § 24(c), Fla. Const.

However, employees may only be paid this sub-minimum wage hourly rate if the average hourly rate (i.e., the “regular rate”), when calculated to include tips received, meets or exceeds the minimum wage in effect. Id. To determine the tipped minimum wage in Florida, employers can take a tip credit of $3.02 off the standard minimum wage rate. See Art. X, § 24(c), Fla. Const. Because the current minimum wage in Florida is $8.56, tipped employees currently must receive a minimum hourly rate of $5.54. Id. This rate of pay will increase each year as the state minimum wage increases. Id. By comparison, the federal minimum wage for tipped employees is $2.13 per hour, before considering tips. 29 C.F.R. § 516.28 (2019).

In terms of coverage, Florida adopted the same criteria as the FLSA for state minimum wage requirements to apply to any given employer. See 29 U.S.C. § 203(s); Art. X, § 24(b), Fla. Const.

Florida Overtime Law

Because Florida has not adopted its own legislation regarding overtime requirements, employers in Florida should follow the requirements of the FLSA. See 29 U.S.C. § 207(a)(1). Employers should pay non-exempt employees a minimum of 1.5 times an employee’s regular rate for every hour worked over 40 in a workweek. Id.

Pre-Suit Notice Requirement

Prior to commencing a civil action against an employer for the collection of unpaid minimum wages, the employee has an additional burden to notify the employer. Fla. Stat. § 448.110(6)(a). The employee must notify the employer in writing of the anticipated violations including details about the total amount of unpaid wages and days/hours worked to put the employer on notice of a potential lawsuit against them. Id. The employer then has 15 days to respond and/or resolve the issue before the employee can file a claim for recovery with a court. Id.

Courts have not come to a conclusive determination about whether the pre-suit notice requirement is mandatory for claims being sought under constitutional minimum wage claims. Espinoza v. Galardi South Enterprises, Inc., No. 14-21244-CIV-GOODMAN, 2018 WL 1729757 at 8-9 (S.D. Fla. April 10, 2018). The constitution establishes an employee’s right to be paid minimum wage, but the legislature has created statutes that provide the framework for enforcing this right. See Art. X § 24(c); Fla. Stat. § 448.110. Courts disagree about whether the additional burden of requiring pre-suit notice infringes on an employee’s constitutional right to be paid minimum wage. See Espinoza, WL 1729757, at 8-9.

Some courts conclude that dismissing a case due to lack of notice violates an employee’s constitutionally given right. See, e.g., Throw v. Republic Enterprise Systems, Inc., No. 8:06–cv–724–T–30TBM, 2006 WL 1823783 at *3 (M.D. Fla. June 30, 2006). Other courts disagree by reasoning that the notice requirement does not create a barrier to a constitutional right, but instead provides the employee and employer an opportunity to settle the disagreement efficiently prior to litigation. See, e.g., Resnick v. Oppenheimer & Co., Inc., No. 07–80609–CIV, 2008 WL 113665 at *3 (S.D. Fla. Jan. 8, 2008).

Potential Liabilities for Wage and Hour Violations

In general, for wage and hour violations under the FLSA and Florida state law, employers may have to pay unpaid wages, in addition to liquidated damages equal to the amount of unpaid wages and reasonable attorney’s fees. 29 U.S.C. § 216(b); Fla. Stat. § 448.110(6)(c)(1-2). Courts may reduce liquidated damages or impose no liquidated damages on an employer if the employer meets the high burden of proof that the employer made objectively and subjectively reasonable efforts to comply with the FLSA in their pay practices. 29 U.S.C. § 260; Fla. Stat. § 448.110(6)(c); Alvarez Perez v. Sanford-Orlando Kennel Club, 515 F.3d 1150, 1155 (11th Cir. 2008).

Like the FLSA, Florida law establishes a statute of limitations for the recovery of damages in wage and hour claims. 29 U.S.C. § 255(a); Art. X, § 24(e), Fla. Const. The FLSA has a statute of limitations of two years, which could extend to three years if the violation is willful. 29 U.S.C. § 255(a). Unlike the FLSA, Florida has a significantly longer statute of limitations for its minimum wage law: employees must file an action within four years, which can extend to five if the employer acted willfully. Art. X, § 24(e), Fla. Const.

Contact Us

At Dolley Law, our attorneys have the experience and knowledge to help you with your wage and hour claim. We have represented clients in FLSA and wage and hour claims across the country, including in Florida. If you have a wage and hour matter in or around Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, or Fort Lauderdale, contact Dolley Law for potential legal representation. We can be reached by phone at 314-645-4100 or by email at kevin@dolleylaw.com.