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2 | A bill to be entitled |
3 | An act relating to the state minimum wage; amending s. |
4 | 95.11, F.S.; providing periods of limitations on actions |
5 | for violations of the Florida Minimum Wage Act; creating |
6 | s. 448.110, F.S., the Florida Minimum Wage Act; providing |
7 | legislative intent to implement s. 24, Art. X of the State |
8 | Constitution in accordance with authority granted to the |
9 | Legislature therein; requiring employers to pay certain |
10 | employees a minimum wage for all hours worked in Florida; |
11 | incorporating provisions of the federal Fair Labor |
12 | Standards Act; requiring the minimum wage to be adjusted |
13 | annually; providing a formula for calculating such |
14 | adjustment; requiring the Agency for Workforce Innovation |
15 | and the Department of Revenue to annually publish the |
16 | amount of the initial and adjusted minimum wage; providing |
17 | criteria for posting; requiring the agency to provide |
18 | written notice to certain employers; providing a deadline |
19 | for the notice to be mailed; providing that employers are |
20 | responsible for maintaining their current addresses with |
21 | the agency; requiring the agency to provide the department |
22 | with certain information; prohibiting discrimination or |
23 | adverse action against persons exercising constitutional |
24 | rights under s. 24, Art. X of the State Constitution; |
25 | providing for civil action by aggrieved persons; requiring |
26 | aggrieved persons bringing civil actions to provide |
27 | written notice to their employers alleged to have violated |
28 | the act; providing information that must be included in |
29 | the notice; providing a deadline by which an employer |
30 | alleged to have violated the act must pay the unpaid wages |
31 | in question or resolve the claim to the aggrieved person's |
32 | satisfaction; providing a statute of limitations period; |
33 | providing that aggrieved persons who prevail in their |
34 | actions may be entitled to liquidated damages and |
35 | reasonable attorney's fees and costs; authorizing |
36 | additional legal or equitable relief for aggrieved persons |
37 | who prevail in such actions; providing that punitive |
38 | damages may not be awarded; providing that actions brought |
39 | under the act are subject to s. 768.79, F.S.; authorizing |
40 | the Attorney General to bring a civil action and seek |
41 | injunctive relief; providing a fine; providing statutes of |
42 | limitations; authorizing class actions; declaring the act |
43 | the exclusive remedy under state law for violations of s. |
44 | 24, Art. X of the State Constitution; providing for |
45 | implementation measures; designating ss. 448.01-448.110, |
46 | F.S., as part I of ch. 448, F.S.; providing a part title; |
47 | providing for severability; providing an effective date. |
48 |
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49 | Be It Enacted by the Legislature of the State of Florida: |
50 |
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51 | Section 1. Paragraph (d) is added to subsection (2) and |
52 | paragraph (q) is added to subsection (3) of section 95.11, |
53 | Florida Statutes, to read: |
54 | 95.11 Limitations other than for the recovery of real |
55 | property.--Actions other than for recovery of real property |
56 | shall be commenced as follows: |
57 | (2) WITHIN FIVE YEARS.-- |
58 | (d) An action alleging a willful violation of s. 448.110. |
59 | (3) WITHIN FOUR YEARS.-- |
60 | (q) An action alleging a violation, other than a willful |
61 | violation, of s. 448.110. |
62 | Section 2. Section 448.110, Florida Statutes, is created |
63 | to read: |
64 | 448.110 State minimum wage; annual wage adjustment; |
65 | enforcement.-- |
66 | (1) This section may be cited as the "Florida Minimum Wage |
67 | Act." |
68 | (2) The purpose of this section is to provide measures |
69 | appropriate for the implementation of s. 24, Art. X of the State |
70 | Constitution, in accordance with authority granted to the |
71 | Legislature pursuant to s. 24(f), Art. X of the State |
72 | Constitution. |
73 | (3) Effective May 2, 2005, employers shall pay employees a |
74 | minimum wage at an hourly rate of $6.15 for all hours worked in |
75 | Florida. Only those individuals entitled to receive the federal |
76 | minimum wage under the federal Fair Labor Standards Act and its |
77 | implementing regulations shall be eligible to receive the state |
78 | minimum wage pursuant to s. 24, Art. X of the State Constitution |
79 | and this section. The provisions of ss. 213 and 214 of the |
80 | federal Fair Labor Standards Act, as interpreted by applicable |
81 | federal regulations and implemented by the Secretary of Labor, |
82 | are incorporated herein. |
83 | (4)(a) Beginning September 30, 2005, and annually on |
84 | September 30 thereafter, the Agency for Workforce Innovation |
85 | shall calculate an adjusted state minimum wage rate by |
86 | increasing the state minimum wage by the rate of inflation for |
87 | the 12 months prior to September 1. In calculating the adjusted |
88 | state minimum wage, the agency shall use the Consumer Price |
89 | Index for Urban Wage Earners and Clerical Workers, not |
90 | seasonally adjusted, for the South Region, or a successor index |
91 | as calculated by the United States Department of Labor. Each |
92 | adjusted state minimum wage rate shall take effect on the |
93 | following January 1, with the initial adjusted minimum wage rate |
94 | to take effect on January 1, 2006. |
95 | (b) The Agency for Workforce Innovation and the Department |
96 | of Revenue shall annually publish the amount of the initial and |
97 | adjusted state minimum wage, as applicable, and the effective |
98 | date. Publication shall occur by posting the adjusted state |
99 | minimum wage rate and the effective date on the Internet home |
100 | pages of the agency and the department by October 15 of each |
101 | year. In addition, to the extent funded in the General |
102 | Appropriations Act, the agency shall provide written notice of |
103 | the rate and the effective date of the adjusted state minimum |
104 | wage to all employers registered in the most current |
105 | unemployment compensation database. Such notice shall be mailed |
106 | by November 15 of each year using the addresses included in the |
107 | database. Employers are responsible for maintaining current |
108 | address information in the unemployment compensation database. |
109 | The agency shall not be responsible for failure to provide |
110 | notice due to incorrect or incomplete address information in the |
111 | database. The agency shall provide the Department of Revenue |
112 | with the state minimum wage rate information and effective date |
113 | in a timely manner. |
114 | (5) It shall be unlawful for an employer or any other |
115 | party to discriminate in any manner or take adverse action |
116 | against any person in retaliation for exercising rights |
117 | protected pursuant to s. 24, Art. X of the State Constitution. |
118 | Rights protected include, but are not limited to, the right to |
119 | file a complaint or inform any person of his or her potential |
120 | rights pursuant to s. 24, Art. X of the State Constitution and |
121 | to assist him or her in asserting such rights. |
122 | (6)(a) Any person aggrieved by a violation of this section |
123 | may bring a civil action in a court of competent jurisdiction |
124 | against an employer violating this section or a party violating |
125 | subsection (5). However, prior to bringing any claim for unpaid |
126 | minimum wages pursuant to this section, the person aggrieved |
127 | shall notify the employer alleged to have violated this section, |
128 | in writing, of an intent to initiate such an action. The notice |
129 | must identify the minimum wage to which the person aggrieved |
130 | claims entitlement, the actual or estimated work dates and hours |
131 | for which payment is sought, and the total amount of alleged |
132 | unpaid wages through the date of the notice. |
133 | (b) The employer shall have 15 calendar days after receipt |
134 | of the notice to pay the total amount of unpaid wages or |
135 | otherwise resolve the claim to the satisfaction of the person |
136 | aggrieved. The statute of limitations for bringing an action |
137 | pursuant to this section shall be tolled during this 15-day |
138 | period. If the employer fails to pay the total amount of unpaid |
139 | wages or otherwise resolve the claim to the satisfaction of the |
140 | person aggrieved, then the person aggrieved may bring a claim |
141 | for unpaid minimum wages, the terms of which must be consistent |
142 | with the contents of the notice. |
143 | (c)1. Upon prevailing in an action brought pursuant to |
144 | this section, aggrieved persons shall recover the full amount of |
145 | any unpaid back wages unlawfully withheld plus the same amount |
146 | as liquidated damages and shall be awarded reasonable attorney's |
147 | fees and costs. As provided under the Fair Labor Standards Act, |
148 | pursuant to s. 11 of the Portal-to-Portal Act of 1947, 29 U.S.C. |
149 | s. 260, if the employer proves by a preponderance of the |
150 | evidence that the act or omission giving rise to such action was |
151 | in good faith and that the employer had reasonable grounds for |
152 | believing that his or her act or omission was not a violation of |
153 | s. 24, Art. X of the State Constitution, the court may, in its |
154 | sound discretion, award no liquidated damages or award any |
155 | amount thereof not to exceed an amount equal to the amount of |
156 | unpaid minimum wages. The court shall not award any economic |
157 | damages on a claim for unpaid minimum wages not expressly |
158 | authorized in this section. |
159 | 2. Upon prevailing in an action brought pursuant to this |
160 | section, aggrieved persons shall also be entitled to such legal |
161 | or equitable relief as may be appropriate to remedy the |
162 | violation including, without limitation, reinstatement in |
163 | employment and injunctive relief. However, any entitlement to |
164 | legal or equitable relief in an action brought under s. 24, Art. |
165 | X of the State Constitution shall not include punitive damages. |
166 | (d) Any civil action brought under s. 24, Art. X of the |
167 | State Constitution and this section shall be subject to s. |
168 | 768.79. |
169 | (7) The Attorney General may bring a civil action to |
170 | enforce this section. The Attorney General may seek injunctive |
171 | relief. In addition to injunctive relief, or in lieu thereof, |
172 | for any employer or other person found to have willfully |
173 | violated this section, the Attorney General may seek to impose a |
174 | fine of $1,000 per violation, payable to the state. |
175 | (8) The statute of limitations for an action brought |
176 | pursuant to this section shall be 4 years from the date the |
177 | alleged violation occurred, except that in an action alleging a |
178 | willful violation the statute of limitations shall be 5 years |
179 | from the date the alleged violation occurred. |
180 | (9) Actions brought pursuant to this section may be |
181 | brought as a class action pursuant to Rule 1.220, Florida Rules |
182 | of Civil Procedure. In any class action brought pursuant to this |
183 | section, the plaintiffs shall prove, by a preponderance of the |
184 | evidence, the individual identity of each class member and the |
185 | individual damages of each class member. |
186 | (10) This section shall constitute the exclusive remedy |
187 | under state law for violations of s. 24, Art. X of the State |
188 | Constitution. |
189 | (11) Except for calculating the adjusted state minimum |
190 | wage and publishing the initial state minimum wage and any |
191 | annual adjustments thereto, the authority of the Agency for |
192 | Workforce Innovation in implementing s. 24, Art. X of the State |
193 | Constitution, pursuant to this section, shall be limited to that |
194 | authority expressly granted by the Legislature. |
195 | Section 3. Sections 448.01-448.110, Florida Statutes, are |
196 | designated as part I of chapter 448, Florida Statutes, and |
197 | entitled "Terms and Conditions of Employment." |
198 | Section 4. If any provision of this act or its application |
199 | to any person or circumstance is held invalid, the invalidity |
200 | shall not affect the other provisions or applications of the act |
201 | which can be given effect without the invalid provision or |
202 | application, and to this end the provisions of this act are |
203 | severable. |
204 | Section 5. This act shall take effect upon becoming a law. |