More Local 'Wage Theft' Ordinances May Soon Be Enacted In Florida

Author:Ms Guilene Theodore
Profession:Ogletree, Deakins, Nash, Smoak & Stewart

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...

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