Senate Bill sb0018Ber

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  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 adjusted minimum wage; providing

19         criteria for posting; requiring the agency to

20         provide written notice to certain employers;

21         providing a deadline for the notice to be

22         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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 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 that a statute of limitations is

 9         tolled for a specified period; providing a

10         statute of limitations period; providing that

11         aggrieved persons who prevail in their actions

12         may be entitled to liquidated damages and

13         reasonable attorney's fees and costs;

14         authorizing additional legal or equitable

15         relief for aggrieved persons who prevail in

16         such actions; providing that punitive damages

17         may not be awarded; providing that actions

18         brought under the act are subject to s. 768.79,

19         F.S.; authorizing the Attorney General to bring

20         a civil action and seek injunctive relief;

21         providing a fine; providing statutes of

22         limitations; authorizing class actions;

23         declaring the act the exclusive remedy under

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

25         the State Constitution; providing for

26         implementation measures; designating ss.

27         448.01-448.110, F.S., as part I of ch. 448,

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

29         severability; providing an effective date.

30  

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


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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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 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 index

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

13  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  adjusted state minimum wage and the effective date.

19  Publication shall occur by posting the adjusted state minimum

20  wage rate and the effective date on the Internet home pages of

21  the agency and the department by October 15 of each year. In

22  addition, to the extent funded in the General Appropriations

23  Act, the agency shall provide written notice of the adjusted

24  rate and the effective date of the adjusted state minimum wage

25  to all employers registered in the most current unemployment

26  compensation database. Such notice shall be mailed by November

27  15 of each year using the addresses included in the database.

28  Employers are responsible for maintaining current address

29  information in the unemployment compensation database. The

30  agency shall not be responsible for failure to provide notice

31  due to incorrect or incomplete address information in the


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 1  database. The agency shall provide the Department of Revenue

 2  with the adjusted state minimum wage rate information and

 3  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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 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 federal Fair

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

10  Act 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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 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 for the period of time

 9  specified in s. 95.11 beginning on the date the alleged

10  violation occurred.

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

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

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

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

15  preponderance of the evidence, the individual identity of each

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

17         (10)  This section shall constitute the exclusive

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

19  State Constitution.

20         (11)  Except for calculating the adjusted state minimum

21  wage and publishing the initial state minimum wage and any

22  annual adjustments thereto, the authority of the Agency for

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

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

25  to that authority expressly granted by the Legislature.

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

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

28  entitled "Terms and Conditions of Employment."

29         Section 4.  If any provision of this act or the

30  application thereof to any person or circumstance is held

31  invalid, the invalidity shall not affect the other provisions


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 1  or applications of the act which can be given effect without

 2  the invalid provision or application, and to this end the

 3  provisions of this act are declared severable.

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

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