Under federal law, the failure to pay a minimum wage allows an employee to file suit in Federal Court. Under the State’s Constitution, the failure to pay a minimum wage allows an employee to file suit in Circuit Court. Now, as of January 1, 2013, an employee who is not paid earned wages within a reasonable time can file a complaint with Broward County.
The new Broward County ordinance, designated the “wage theft” law by pundits, is different from the federal and state law in that it does not have, as its threshold, any minimum hourly wage that must be paid. Instead, it provides a cause of action when an employer fails to pay any portion of wages due to an employee within a reasonable time from the date the compensation was earned. The minimum claim for relief that can be brought under the law is $60. The employee must notify the employer in writing within 60 days that wages are owed as a precondition to filing a complaint with the county. A claim must be filed within one year or it is barred. If the employee files a federal or state claim, the complaint is deemed withdrawn.
Like the federal and state laws, the ordinance is remedial in nature, meaning that its terms will be liberally construed in favor of claimants. In addition, a finding that wages are owed will result in a liquidated damages penalty to the employer, which doubles the amount of the award. Miami-Dade enacted a similar ordinance in 2010, which provides for treble damages. The Miami-Dade ordinance has similar thresholds and procedures. Both laws provide that a prevailing employee can be awarded attorneys’ fees incurred in obtaining relief. Employers, however, can only recoup their attorney’s fees upon a finding that the claim was frivolous.
Claims under the ordinance can arise when, for example, an employee alleges that time records are inaccurate or that he worked off-the-clock. Employees who allege they were denied commissions, or who assert that they were not paid accurately under a piece work or other unconventional pay arrangement will also likely have a cause of action.
Unlike the federal and state statutes, there is no right to a jury trial. The county, however, will appoint a Hearing Officer. Such officers must be members of the Florida Bar for at least five years. The County must attempt to resolve the claim prior to a hearing. If these efforts fail, the officer conducts an evidentiary hearing and issues a ruling. The burden to prove a violation rests with the claimant. Under the ordinance, however, where an employer is required to keep records of work hours and compensation (as all are under federal law), the burden of proof shifts to the employer if the records do not exist or are not accurate.
Final Lesson: Every employer, no matter its size, is subject to the ordinance. The attendant risk is that even a relatively small claim can quickly result in high stakes litigation given the fees provision in the ordinance. Creating and maintaining records showing time worked and compensation paid is therefore critical, whether one is defending claims under federal, state or the new ordinance.
Angelo M. Filippi, Esq. is a partner and director of employment law at Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Eskalyo and Dunbrack, P.A. in Plantation.