More Local 'Wage Theft' Ordinances May Soon Be Enacted in Florida
On June 12, 2012, Broward County authorized its County Attorney to draft a wage theft ordinance for consideration by the County Commission. Indications are that Broward’s ordinance will likely be patterned after the wage theft ordinance adopted by Miami-Dade in 2010.
The Miami-Dade ordinance makes it a “wage theft” for an employer to “fail to pay any portion of wages due to an employee, according to the wage rate applicable to that employee, within a reasonable time from the date on which that employee performed the work for which those wages were compensation.” The ordinance applies to the underpayment or nonpayment of wages earned by persons working in the County. It defines an “employer” without regard to size or gross revenues and includes “any person, who, acting either individually or as an officer, agent, or employee of another person, acts directly or indirectly in the interest of a person or entity employing an employee,” but excluding the U.S. Government, the state of Florida, and other sovereign entities. An employee may make a complaint for a wage theft violation for any amount greater than $60.00.
The ordinance sets up a local administrative claims process and creates a private right of action for which the employee can file a lawsuit. The employee or any entity of which the employee is a member may bring the complaint in the administrative proceeding. A hearing examiner is authorized to make a finding that an employer has committed a wage theft and to issue an order to pay wage restitution to the employee in an amount three times the back wages and liquidated damages. The employer also can be ordered to pay the County’s actual administrative processing costs of the hearing, as well as fines of up to $500 and/or up to 60 days’ imprisonment for willfully “failing to produce records or attend and testify or to answer any lawful inquiry.”
The Miami-Dade ordinance recently survived a challenge by the Florida Retail Federation in state court with the dismissal of the Federation’s lawsuit on March 23, 2012.
Broward County’s action to authorize the drafting of the ordinance follows the dismissal of the Federation lawsuit and a recent defeat of legislation introduced in the Florida legislature that would have established a statewide definition of “wage theft,” and would have precluded local governments from regulating wage theft over and above the existing state and federal laws. The House version of the bill was approved, but the Senate version died in Committee in March of this year, following opposition by worker advocates.
At least one other Florida county is considering a similar ordinance. In April of this year, Palm Beach County authorized its staff to move forward with establishing a procedure for victims of wage theft to recover back wages. Palm Beach had started its process for adopting a wage theft ordinance in 2011 but placed it on hold pending the outcome of the lawsuit and the state’s legislative initiative.
The local initiatives are being driven in part by a report prepared by the Research Institute on Social and Economic Policy Center for Labor Research and Studies at Florida International University.
We will issue updates on the Broward and Palm Beach proposed ordinances and on new developments by other Florida municipal and county governments to enact their own wage theft ordinances.
These developments are significant to the extent they mark the beginning of a trend that could lead to a patchwork of different laws and processes that an employer operating in various parts of the state will need to be aware of. Moreover, if the Miami-Dade model is followed, the process is quick, burdensome to the employer and potentially costly. Determining whether wages are due and owing may require an analysis of federal laws, which will be subject to different interpretations within each local government’s jurisdiction.
Should you have any questions about the proposed ordinances, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at firstname.lastname@example.org.
Nore: this article was published in the June 18, 2012 issue of the Florida eAuthority.