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Samole Law Firm, PA

 

A Full Service Miami Law Firm

                        Phone 305-670-5070

Miami- Dade Co. Fla Wage Theft Ordinance
 
Miami-Dade County, Florida Wage Theft Ordinance

Under Florida Statutes, §448.08, an employee would be entitled to attorney's fees if the employee prevails in an action against an employer for unpaid wages. Similarly, in the recently enacted Wage Theft Ordinance, the employee is also entitled to attorney's fees if the employee prevails.

Under the Fair Labor Standards Act, if an employee is nonexempt, and prevails in an action against an employer for non payment of minimum wage and/or overtime, the employee would be entitled to double damages.

However, under the Wage Theft Ordinance, if an employee is not paid the agreed upon wage, salary, or piece rate, the hearing officer can award treble damages.

The powers given to the hearing officer under the Ordinance to issue subpoenas for records and witnesses, and to issue fines for non compliance are very broad.   The Wage Theft Ordinance can be found at Chapter 22 of the Miami Dade County Ordinances.

WAGE THEFT ORDINANCE

Miami-Dade in South Florida was the first county in the nation to adopt a countywide wage theft law. The Ordinance, which became effective on March 1, 2010, applies to private sector employees and employers, prohibits wage theft, and provides administrative procedures and private causes of action. An employer found to be in violation of the Wage Theft Ordinance will be required to pay the actual administrative processing and hearing costs as well as restitution to the employee, which would include back wages owed as well as liquidated damages of double that amount and possibly treble damages.

What this means for employers in Miami-Dade County is that a simple oversight or misunderstanding regarding which employees can be classified as exempt or as independent contractors under the Fair Labor Standards Act ("FLSA"), may now lead to a finding that the employer has committed "wage theft."

According to a report from the Office of Commission Auditor, which accompanied the Ordinance, for the past five years the Southern District of Florida (the federal trial court with jurisdiction over Miami-Dade County) has had a disproportionately high number of FLSA cases filed. Nevertheless, the summary that accompanied the Ordinance reflects the Commission's belief that the requirement for employees to opt-in to a FLSA class action lawsuit hampers their ability to seek remedial action in courts. Thus, the summary states that the Ordinance "is intended to be a tool to root out violations of U.S. labor laws occurring in Miami-Dade County."

According to the Ordinance, a "wage theft violation" occurs when an employer fails to pay any portion of the wages due to an employee, according to the wage rate applicable to the employee, within a reasonable time from the date on which that employee performed the work for which the wages are compensation. The Ordinance defines reasonable time as no later than 14 calendar days from the date the work was performed; however, this time may be modified to no longer than 30 days by an express agreement between the employer and employee that has been reduced to writing and signed by the employee. Moreover, the original ordinance was amended to permit a longer period if the employer has properly established a longer pay period. 

The Ordinance defines wage rate as "any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece." Thus, this provision could be interpreted more broadly than the employee's "regular rate" under the FLSA.

Once an employee brings a timely claim that wage theft has occurred, the accused employer will have to defend itself before a county-appointed hearing examiner. The Ordinance does not set out requirements or qualifications a person must possess to be appointed a hearing examiner; thus, it is possible the hearing examiner may not be a judge or attorney or have a background in labor and employment law. The mechanics of the hearing as set out in the Ordinance will be like a trial, including discovery in accordance with the Florida Rules of Civil Procedure. Employers will have to be very careful with this process because an employee can choose at any time to stop the proceedings under the Ordinance and file a civil action in State or Federal Court (for violation of state or federal wage/hour laws, which would likely be the basis for the wage theft allegation). Also, should a hearing examiner find the employer in violation of the wage theft Ordinance, the hearing examiner can award damages of up to three times the amount of the unpaid wages.

Employers' Bottom Line:

Employers in Miami-Dade County need to be more vigilant than ever to ensure that employees are properly classified and promptly paid for all work performed. A stringent review of employees currently classified as exempt or as independent contractors, conducted at the direction and supervision of experienced employment law counsel, is recommended to ensure complete compliance with the FLSA. Employers should also set out in writing when wages will be paid and have the employees sign this written timeline of payments. (Note that the Ordinance only permits the employer to extend the time for payment of wages to up to 30 days from the date the work is performed and then only with the written agreement of the employee.)

Additionally, employers will need to review their time keeping polices and make sure that accurate time records are being kept and that all time worked by employees is being recorded. While most employers only keep time records for nonexempt employees, it may be prudent to require exempt employees to do so as well. If a hearing officer determines that an employee is improperly classified as exempt, the employer will have the burden of proving actual time worked. Without accurate records, the employee can estimate the time and the hearing officer will base the wage calculation on that estimated time.

 

 

Points to note
  • Threshold amount is $60
  • Wage is any agreed wage but must meet highest rate established by any legislation (i.e. minimum wage)
  • Statute of limitations is one year from when the unpaid work was performed
  • Reasonable time to have received payment for work done is no later than fourteen calendar days from the date on which the work is performed unless the employer has established, by policy or practice, a pay schedule whereby employees earn and are consistently paid wages according to regularly recurring pay periods in which case such pay schedule shall govern.
    • May be modified for a period not to exceed thirty days by a written agreement between the employer and the employee
  • Complaints
    • Written complaint can be filed with the County by employee or an organization to which the employee belongs (i.e. membership-based workers center); there is no filing fee
    • County will attempt conciliation between employee and employer, resulting in a written agreement between the parties that is actionable if breached
    • If conciliation is not possible, matter will be referred to a hearing officer
    • There is a strong financial incentive to resolving the matter quickly at this stage in order to avoid additional financial penalties including the cost of the administrative hearing and treble damages to be paid to the employee, as well as attorneys fees to a prevailing party.
  • Hearings
    • In any hearing, employee may be represented by an attorney or a non-attorney advocate
    • Hearing officer can consolidate any cases listing the same employer
    • Although burden of proof is on the employee, the employer has a legal obligation to maintain records and if the employer has not done so, just and reasonable inference will be made based on evidence presented by employee
    • If employee files complaint in another venue (i.e. Small Claims Court), complaint filed with County will be withdrawn – no double filings
    • Hearing officer will issue enforceable written order upon completion of hearing
  • Damages
    • If employer is found by the hearing officer to be in violation, employee will receive treble damages as compensation for economic losses suffered due to not receiving wages at the time they were due
    • Employer, if found in violation, will also be liable to the County for the administrative costs of the hearing
  • Enforcement
    • If employer fails to comply with order within 45 days after receiving written notice from the County, the County Attorney will issue an order allowing for either a one-time 45 day extension period or may additionally order the employer to pay interest on the full amount of treble damages from the date of the finding by the hearing officer and interest on the administrative cost assessment until the amounts are paid in full
  • Effective date
    • Ordinance became effective on March 1, 2010
  •  

    The information provided above is intended to give you a basic understanding of the Wage Theft Ordinance in Miami Dade County, Florida, but this does not constitute legal advice and it cannot substitute for a thorough review anddetermination of individual employment issues, situations and requirements with your attorney.

     
     
    Samole Law Firm, P.A
    For information about representation, call Samole Law Firm, P.A. at 305-670-5070, or request an appointment (see above) and you will be notified of availability and/or requirements. Please note that any information that you provide to us via the internet will not be privileged or confidential until we have agreed to represent you. Offices in Miami, Florida. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. © Copyright Samole Law Firm, P.A. 2009.