Florida’s Minimum Wage – Frequently Asked Questions and Answers 1. What is Florida’s minimum wage? Effective January 1, 2007, Florida’s minimum wage will be $6.67 per hour. “Employers” must pay “employees” at least a “wage” of $6.67 per hour for all hours worked in Florida. [Note: Florida’s minimum wage during calendar year 2006 was $6.40 per hour.] 2. Does a Florida minimum wage poster requirement exist for Florida’s employers? Yes. In 2006, the Florida Legislature created section 448.109, Florida Statutes, which in 2007 requires that each employer who must pay the Florida minimum wage to prominently display a poster (at least 8.5 inches by 11 inches in size) in a conspicuous and accessible place in each establishment where such employees are employed. The poster may be downloaded from the Agency for Workforce Innovation’s website at: http://www.floridajobs.org/resources/fl_min_wage.html. A new poster for each calendar year will be available on this website on or before December 1st of each year containing the revised state minimum wage for the year beginning the following January 1st. The website contains English and Spanish versions of the poster. Posting the Florida minimum wage poster does not excuse employers in Florida from posting the required federal minimum wage poster. Under federal law, employers having employees subject to the Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it. The content of the notice is prescribed by the Wage and Hour Division of the U. S. Department of Labor (USDOL). The federal posters can be downloaded from the USDOL website at: http://www.dol.gov/esa/regs/compliance/posters/flsa.htm. Because the Florida minimum wage does not apply unless the employee would first be entitled to the federal minimum wage, a Florida employer required to pay employees the federal minimum wage must post two minimum wage posters – the federal poster and the Florida poster. 3. When will the minimum wage be increased? The Agency for Workforce Innovation (AWI) will perform an annual calculation to establish a new minimum wage each year based upon changes in the consumer price index. AWI will perform this calculation on September 30th each year, with the new minimum wage becoming effective the following January 1st. 4. How will adjustments in the minimum wage be made? In calculating the adjustments to the state minimum wage each year, the Agency for Workforce Innovation will use the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted, for the South Region as calculated by the U.S. Department of Labor. The adjustment will be based upon the change in the consumer price index during the 12 month period each year prior to September 1st. 5. Where will the amount of the minimum wage be posted? The Agency for Workforce Innovation and the Department of Revenue will publish the minimum wage that will go into effect the following January 1st of each year on their Internet homepages by October 15th each year. 6. Are employers entitled to receive any specific notification of the minimum wage other than that posted on the Internet? To the extent funded in the state’s General Appropriations Act, the Agency for Workforce Innovation will provide written notice (mailed by November 15th of each year) to all employers registered in the most current unemployment compensation database. 7. To whom does the minimum wage apply? Florida’s minimum wage law applies to only those individuals entitled to receive the federal minimum wage under the federal Fair Labor Standards Act (FLSA) and its implementing regulations. The exceptions and exemptions to paying the minimum wage contained in sections 213 and 214 of the FLSA apply also to Florida’s minimum wage law. The definitions of “employer,” “employee,” and “wage” with respect to Florida’s minimum wage law are those established under the FLSA. Florida’s constitutional provision creating the minimum wage indicates that the case law, administrative interpretations, and other guiding standards under the FLSA should be the guide regarding the construction of Florida’s minimum wage. 8. Where is Florida’s minimum wage law located? The minimum wage law in Florida exists in the Constitution, along with further legislative implementation in statute. The Constitutional provision is section 24, Article X. The statutory provision is section 448.110, Florida Statutes, which became effective on December 12, 2005. 9. Where can I obtain more information about the coverage of the minimum wage law? Information about the federal Fair Labor Standards Act, which governs the individuals covered by Florida’s minimum wage law, and compliance assistance about the minimum wage can be found at http://www.dol.gov/dol/compliance/comp-flsa.htm. This is the federal minimum wage website; however, the information at this website about the minimum wage will apply to Florida’s minimum wage, except the actual amount of the minimum wage will be different since Florida’s minimum wage is higher. 10. If I receive tips as a part of my job, can my employer pay me less than the minimum wage? Yes, if a tipped employee meets the eligibility requirements for the tip credit under the FLSA, then the employer may count tips actually received as wages under the FLSA, but beginning on January 1, 2007, the employer must pay not less than $3.65 per hour in direct wages. (As mandated by the Constitution, this direct wage represents the 2003 tip credit under the FLSA ($3.02) subtracted from Florida’s minimum wage; therefore, as the minimum wage increases each year, the direct wage paid to tipped employees will also increase.) 11. What am I to do if my employer is not paying me an amount at least equal to the minimum wage? The procedures set forth in statute are the following: (a) The employee must provide written notification to the employer alleged to have violated the minimum wage law of the intent to initiate a minimum wage violation action against the employer. The notice must identify the minimum wage to which the employee claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice. (b) After receipt of the written notice, the employer has 15 calendar days to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the employee. (c) If the matter is not resolved to the satisfaction of the employee, the employee may then bring a civil action in a court of competent jurisdiction against the employer. 12. Who is responsible for enforcing Florida’s minimum wage law? The primary responsibility for enforcement of the minimum wage law resides with the employee by following the procedures set forth in the answer to the question above. While the Constitution and statute give Florida’s Attorney General the authority to bring a civil action to enforce the minimum wage law, this is a discretionary action by the Attorney General. 13. What is the role of the Agency for Workforce Innovation (AWI) regarding the minimum wage law? AWI’s authority regarding the minimum wage law is limited to calculating and publishing the minimum wage adjustments each year, making the minimum wage poster available, and such other authority that the Legislature expressly gives to it. At present, the Legislature has not given AWI any other authority; therefore, AWI has no authority for investigating alleged violations of the minimum wage or enforcing the minimum wage. 14. What monetary damages can be recovered in a civil action brought under the minimum wage law? If the employee prevails in an action brought to enforce the minimum wage law, the employee shall recover the full amount of any unpaid back wages, plus the same amount as liquidated damages, and shall be awarded reasonable attorney fees and costs. However, if the employer can prove that failure to pay the minimum wage was in good faith and based upon a reasonable belief that the minimum wage was not applicable; the amount of liquidated damages may be reduced by the court. 15. How long do I have to initiate a civil lawsuit to enforce the minimum wage? An employee normally has four years from the date of the alleged minimum wage law violation to initiate a lawsuit. However, in an action alleging a willful violation of the minimum wage law, the statute of limitations for initiating the lawsuit is five years from the date of the alleged violation.
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