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Florida's Constitution Amendment To Increase Minimum Wage

by Edmund J. McKenna, Board Certified in the Area of Labor and Employment Law - Ford & Harrison, LLP on 10/1/2010
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On November 2, 2004, voters in Florida passed an amendment to the Florida Constitution raising the minimum wage from $5.15 per hour to $6.15 per hour. The increase in minimum wage will take place in six months, and each year the minimum wage will be adjusted for inflation, based on the consumer price index for urban wage earners and clerical workers. (The Florida Supreme Court has already held that the amendment does not provide for decreases in the minimum wage in times of deflation.) For tipped employees in Florida who are being paid less than the federal minimum wage pursuant to the so-called "tip credit" provision of the Fair Labor Standards Act ("FLSA"), employers will have to pay such employees at least $3.13 per hour instead of at least $2.13 per hour, when the new minimum wage becomes effective.

The amendment does not apply to employers and employees who are not subject to the FLSA, the federal wage and hour law. Thus, if an employer or employee is exempt from the FLSA's minimum wage requirement, such employer or employee is also exempt from the Florida Constitution's minimum wage requirement. The amendment also states that case law and administrative opinions interpreting the FLSA will guide the construction of the amendment.

The amendment prohibits an employer or any other party from discriminating in any manner or taking adverse action against any person in retaliation for exercising rights under the amendment. The rights protected under the amendment include the right to file a complaint or inform any person about any party's alleged non-compliance with the amendment, and the right to inform any person of his or her potential rights under the amendment and to assist him or her in asserting such rights.

The amendment provides that employees who are not paid the required minimum wage or who are retaliated against for asserting their rights under the amendment may file a civil lawsuit against the employer or person violating the amendment. If the employee prevails, he or she is entitled to recover any back wages owed, an additional equal amount in liquidated damages, and attorney's fees and costs. Any employer or other person found liable for willfully violating the amendment shall also be subject to a fine payable to the state in the amount of $1,000 for each violation. The statute of limitations for lawsuits under the amendment is four years or, in the case of a willful violation, five years. This statute of limitations is longer than the statute of limitations under the FLSA, which is two years or, in the case of a willful violation, three years.

Additional legislation to enforce this amendment is not necessary.

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Categories: 2004

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