Senate Bill sb2638c1

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    Florida Senate - 2005                           CS for SB 2638

    By the Committee on Commerce and Consumer Services; and
    Senator Alexander




    577-2149-05

  1                      A bill to be entitled

  2         An act relating to the state minimum wage;

  3         amending s. 95.11, F.S.; providing periods of

  4         limitations on actions for violations of the

  5         Florida Minimum Wage Act; creating s. 448.110,

  6         F.S., the Florida Minimum Wage Act; providing

  7         legislative intent to implement s. 24, Art. X

  8         of the State Constitution in accordance with

  9         authority granted to the Legislature therein;

10         requiring employers to pay certain employees a

11         minimum wage for all hours worked in Florida;

12         incorporating provisions of the federal Fair

13         Labor Standards Act; requiring the minimum wage

14         to be adjusted annually; providing a formula

15         for calculating such adjustment; requiring the

16         Agency for Workforce Innovation and the

17         Department of Revenue to annually publish the

18         amount of the initial and adjusted minimum

19         wage; providing criteria for posting; requiring

20         the agency to provide written notice to certain

21         employers; providing a deadline for the notice

22         to be mailed; providing that employers are

23         responsible for maintaining their current

24         addresses with the agency; requiring the agency

25         to provide the department with certain

26         information; prohibiting discrimination or

27         adverse action against persons exercising

28         constitutional rights under s. 24, Art. X of

29         the State Constitution; providing for civil

30         action by aggrieved persons; requiring

31         aggrieved persons bringing civil actions to

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    Florida Senate - 2005                           CS for SB 2638
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 1         provide written notice to their employers

 2         alleged to have violated the act; providing

 3         information that must be included in the

 4         notice; providing a deadline by which an

 5         employer alleged to have violated the act must

 6         pay the unpaid wages in question or resolve the

 7         claim to the aggrieved person's satisfaction;

 8         providing a statute of limitations period;

 9         providing that aggrieved persons who prevail in

10         their actions may be entitled to liquidated

11         damages and reasonable attorney's fees and

12         costs; authorizing additional legal or

13         equitable relief for aggrieved persons who

14         prevail in such actions; providing that

15         punitive damages may not be awarded; providing

16         that actions brought under the act are subject

17         to s. 768.79, F.S.; authorizing the Attorney

18         General to bring a civil action and seek

19         injunctive relief; providing a fine; providing

20         statutes of limitations; authorizing class

21         actions; declaring the act the exclusive remedy

22         under state law for violations of s. 24, Art. X

23         of the State Constitution; providing for

24         implementation measures; designating ss.

25         448.01-448.110, F.S., as part I of ch. 448,

26         F.S.; providing a part title; providing for

27         severability; providing an effective date.

28  

29  Be It Enacted by the Legislature of the State of Florida:

30  

31  

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    Florida Senate - 2005                           CS for SB 2638
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 1         Section 1.  Paragraph (d) is added to subsection (2)

 2  and paragraph (q) is added to subsection (3) of section 95.11,

 3  Florida Statutes, to read:

 4         95.11  Limitations other than for the recovery of real

 5  property.--Actions other than for recovery of real property

 6  shall be commenced as follows:

 7         (2)  WITHIN FIVE YEARS.--

 8         (d)  An action alleging a willful violation of s.

 9  448.110.

10         (3)  WITHIN FOUR YEARS.--

11         (q)  An action alleging a violation, other than a

12  willful violation, of s. 448.110.

13         Section 2.  Section 448.110, Florida Statutes, is

14  created to read:

15         448.110  State minimum wage; annual wage adjustment;

16  enforcement.--

17         (1)  This section may be cited as the "Florida Minimum

18  Wage Act."

19         (2)  The purpose of this section is to provide measures

20  appropriate for the implementation of s. 24, Art. X of the

21  State Constitution, in accordance with authority granted to

22  the Legislature pursuant to s. 24(f), Art. X of the State

23  Constitution.

24         (3)  Effective May 2, 2005, employers shall pay

25  employees a minimum wage at an hourly rate of $6.15 for all

26  hours worked in Florida. Only those individuals entitled to

27  receive the federal minimum wage under the federal Fair Labor

28  Standards Act and its implementing regulations shall be

29  eligible to receive the state minimum wage pursuant to s. 24,

30  Art. X of the State Constitution and this section. The

31  provisions of ss. 213 and 214 of the federal Fair Labor

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    Florida Senate - 2005                           CS for SB 2638
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 1  Standards Act, as interpreted by applicable federal

 2  regulations and implemented by the Secretary of Labor, are

 3  incorporated herein.

 4         (4)(a)  Beginning September 30, 2005, and annually on

 5  September 30 thereafter, the Agency for Workforce Innovation

 6  shall calculate an adjusted state minimum wage rate by

 7  increasing the state minimum wage by the rate of inflation for

 8  the 12 months prior to September 1. In calculating the

 9  adjusted state minimum wage, the agency shall use the Consumer

10  Price Index for Urban Wage Earners and Clerical Workers, not

11  seasonally adjusted, for the South Region, or a successor

12  index as calculated by the United States Department of Labor.

13  Each adjusted state minimum wage rate shall take effect on the

14  following January 1, with the initial adjusted minimum wage

15  rate to take effect on January 1, 2006.

16         (b)  The Agency for Workforce Innovation and the

17  Department of Revenue shall annually publish the amount of the

18  initial and adjusted state minimum wage, as applicable, and

19  the effective date. Publication shall occur by posting the

20  adjusted state minimum wage rate and the effective date on the

21  Internet home pages of the agency and the department by

22  October 15 of each year. In addition, to the extent funded in

23  the General Appropriations Act, the agency shall provide

24  written notice of the rate and the effective date of the

25  adjusted state minimum wage to all employers registered in the

26  most current unemployment compensation database. Such notice

27  shall be mailed by November 15 of each year using the

28  addresses included in the database. Employers are responsible

29  for maintaining current address information in the

30  unemployment compensation database. The agency shall not be

31  responsible for failure to provide notice due to incorrect or

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    Florida Senate - 2005                           CS for SB 2638
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 1  incomplete address information in the database. The agency

 2  shall provide the Department of Revenue with the state minimum

 3  wage rate information and effective date in a timely manner.

 4         (5)  It shall be unlawful for an employer or any other

 5  party to discriminate in any manner or take adverse action

 6  against any person in retaliation for exercising rights

 7  protected pursuant to s. 24, Art. X of the State Constitution.

 8  Rights protected include, but are not limited to, the right to

 9  file a complaint or inform any person of his or her potential

10  rights pursuant to s. 24, Art. X of the State Constitution and

11  to assist him or her in asserting such rights.

12         (6)(a)  Any person aggrieved by a violation of this

13  section may bring a civil action in a court of competent

14  jurisdiction against an employer violating this section or a

15  party violating subsection (5). However, prior to bringing any

16  claim for unpaid minimum wages pursuant to this section, the

17  person aggrieved shall notify the employer alleged to have

18  violated this section, in writing, of an intent to initiate

19  such an action. The notice must identify the minimum wage to

20  which the person aggrieved claims entitlement, the actual or

21  estimated work dates and hours for which payment is sought,

22  and the total amount of alleged unpaid wages through the date

23  of the notice.

24         (b)  The employer shall have 15 calendar days after

25  receipt of the notice to pay the total amount of unpaid wages

26  or otherwise resolve the claim to the satisfaction of the

27  person aggrieved. The statute of limitations for bringing an

28  action pursuant to this section shall be tolled during this

29  15-day period. If the employer fails to pay the total amount

30  of unpaid wages or otherwise resolve the claim to the

31  satisfaction of the person aggrieved, then the person

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    Florida Senate - 2005                           CS for SB 2638
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 1  aggrieved may bring a claim for unpaid minimum wages, the

 2  terms of which must be consistent with the contents of the

 3  notice.

 4         (c)1.  Upon prevailing in an action brought pursuant to

 5  this section, aggrieved persons shall recover the full amount

 6  of any unpaid back wages unlawfully withheld plus the same

 7  amount as liquidated damages and shall be awarded reasonable

 8  attorney's fees and costs. As provided under the Fair Labor

 9  Standards Act, pursuant to s. 11 of the Portal-to-Portal Act

10  of 1947, 29 U.S.C. s. 260, if the employer proves by a

11  preponderance of the evidence that the act or omission giving

12  rise to such action was in good faith and that the employer

13  had reasonable grounds for believing that his or her act or

14  omission was not a violation of s. 24, Art. X of the State

15  Constitution, the court may, in its sound discretion, award no

16  liquidated damages or award any amount thereof not to exceed

17  an amount equal to the amount of unpaid minimum wages. The

18  court shall not award any economic damages on a claim for

19  unpaid minimum wages not expressly authorized in this section.

20         2.  Upon prevailing in an action brought pursuant to

21  this section, aggrieved persons shall also be entitled to such

22  legal or equitable relief as may be appropriate to remedy the

23  violation including, without limitation, reinstatement in

24  employment and injunctive relief. However, any entitlement to

25  legal or equitable relief in an action brought under s. 24,

26  Art. X of the State Constitution shall not include punitive

27  damages.

28         (d)  Any civil action brought under s. 24, Art. X of

29  the State Constitution and this section shall be subject to s.

30  768.79.

31  

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    Florida Senate - 2005                           CS for SB 2638
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 1         (7)  The Attorney General may bring a civil action to

 2  enforce this section. The Attorney General may seek injunctive

 3  relief. In addition to injunctive relief, or in lieu thereof,

 4  for any employer or other person found to have willfully

 5  violated this section, the Attorney General may seek to impose

 6  a fine of $1,000 per violation, payable to the state.

 7         (8)  The statute of limitations for an action brought

 8  pursuant to this section shall be 4 years from the date the

 9  alleged violation occurred, except that in an action alleging

10  a willful violation the statute of limitations shall be 5

11  years from the date the alleged violation occurred.

12         (9)  Actions brought pursuant to this section may be

13  brought as a class action pursuant to Rule 1.220, Florida

14  Rules of Civil Procedure. In any class action brought pursuant

15  to this section, the plaintiffs shall prove, by a

16  preponderance of the evidence, the individual identity of each

17  class member and the individual damages of each class member.

18         (10)  This section shall constitute the exclusive

19  remedy under state law for violations of s. 24, Art. X of the

20  State Constitution.

21         (11)  Except for calculating the adjusted state minimum

22  wage and publishing the initial state minimum wage and any

23  annual adjustments thereto, the authority of the Agency for

24  Workforce Innovation in implementing s. 24, Art. X of the

25  State Constitution, pursuant to this section, shall be limited

26  to that authority expressly granted by the Legislature.

27         Section 3.  Sections 448.01-448.110, Florida Statutes,

28  are designated as part I of chapter 448, Florida Statutes, and

29  entitled "Terms and Conditions of Employment."

30         Section 4.  If any provision of this act or its

31  application to any person or circumstance is held invalid, the

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    Florida Senate - 2005                           CS for SB 2638
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 1  invalidity shall not affect the other provisions or

 2  applications of the act which can be given effect without the

 3  invalid provision or application, and to this end the

 4  provisions of this act are severable.

 5         Section 5.  This act shall take effect upon becoming a

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    Florida Senate - 2005                           CS for SB 2638
    577-2149-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2638

 3                                 

 4  This committee substitute differs from the bill in the
    following manner:
 5  
    -    Incorporates by reference the current exemptions in ss.
 6       213 and 214 of the federal Fair Labor Standards Act,
         including one for employers who hire the disabled, into
 7       the Florida Minimum Wage Act;

 8  -    Specifies that the CPI used to determine the annual
         adjusted minimum wage is not seasonally adjusted;
 9  
    -    Deletes the required annual written notice to employers
10       of the adjusted minimum wage; instead, the notice
         requirement is contingent upon funding provided in the
11       General Appropriations Act;

12  -    In lieu of the written notification, AWI must publish the
         annually adjusted minimum wage on the agency and DOR
13       website;

14  -    When providing notice to the employer of an intent to
         file suit, the employee must provide an estimate, rather
15       than the actual work dates and hours for which payment is
         sought;
16  
    -    As to the employer good faith exemption from damages
17       beyond the actual unpaid wages, the employer must prove
         by a preponderance of the evidence, rather than simply
18       show to the satisfaction of the court, that the omission
         was in good faith; and authorizes rather than restricts
19       the court to limit damages awarded to the actual unpaid
         wages;
20  
    -    Prohibits the court from providing punitive damages
21       rather than prohibiting non-economic damages, such as
         damages for pain and suffering;
22  
    -    Subjects civil actions under this section to s. 768.79,
23       F.S., regarding offers of judgments;

24  -    In class action suits, subjects the suit to Rule 1.220,
         Florida Rules of Civil Procedure, and requires the
25       plaintiffs to prove, by a preponderance of the evidence,
         the individual identity of each class member and the
26       individual damages of each class member; and

27  -    Includes a severability clause.

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