Wage and Hour Laws in Florida

Author’s note from Attorney Howard Iken: The Fair Labor Standards Act (FLSA) governs wage and hour rights in Florida, requiring covered workers to be paid the minimum wage and receive overtime pay for any hours worked over 40 hours in a given workweek. State laws and regulations can provide additional rights and protections beyond those guaranteed by federal laws. Employees who feel their rights have been violated can bring a civil suit against their employer for unpaid or back wages, but must first notify their employer in writing and allow them 15 days to pay or resolve the dispute. An attorney is not required, but seeking advice can increase the chances of success. Both federal and state laws protect workers against retaliation or discrimination for attempting to protect their rights to fair wages.

Introduction

Through a number of federal and state laws enacted over the years, the average employee in Florida enjoys a wide variety of rights and protections that employees even 100 years ago did not know. One such right includes the right to receive a fair, minimum wage for work performed. This right is often coupled in the minds of employees with the protection against working excessive hours without just compensation. While laws and regulations cannot stop employers from violating an employee’s rights, they can provide the wronged employee with ways to seek some redress for his or her injury.

Overview of Florida Wage and Hours Law

The major piece of federal legislation governing wage and hour rights in Florida is the Fair Labor Standards Act (FLSA). This Act was first created in 1938 and has been changed numerous times since then. The FLSA basically requires:

• “Covered” workers be paid the prevailing minimum wage;
• “Covered” workers be paid at least one and one-half times their regular hourly wage for each hour worked over 40 hours in a given workweek;
• Certain protections for children so that they are not employed in a hazardous workplace; and
• Employers to comply with certain recordkeeping requirements.

Federal laws are supplemented by state laws and regulations that can provide additional rights and protections beyond those guaranteed by federal laws. Where federal laws and state laws address a similar topic, whichever law provides more protections or rights to the employee will apply. For instance, suppose that a federal law prohibits children from working later than 10 p.m. on a school night, while a state law prohibits children from working later than 9 p.m., then the state law will apply and children in that state will not be permitted to work later than 9 p.m.

Florida employees’ rights to a minimum wage are protected by Section 24 of Article X of the Florida Constitution. This section not only guarantees a minimum wage, but also provides for an automatic increase in the minimum wage each year. The purpose of this is to provide Floridians with a minimum wage that enables them to provide for their families, protects workers from unfair, lower-wage competition, and is designed to keep Florida workers from having to rely on government assistance in order to make ends meet.

Minimum Wage and Overtime Wages

First, in general, employees are entitled to receive a “minimum wage” for work performed. The following lists show the latest values for minimum wage:

Minimum wages in Florida are now set to rise as follows:

• Through December 31, 2020 – $8.56
• January 1, 2021 – $8.65
• September 30, 2021 – $10.00
• September 30, 2022 – $11.00
• September 30, 2023 – $12.00
• September 30, 2024 – $13.00
• September 30, 2025 – $14.00
• September 30, 2026 – $15.00

(If you are a tipped employee, such as a waiter or waitress, you too are entitled to a minimum wage. However, because the tips you receive form a part of your wages, the minimum wage to which you are entitled is less.)

Tipped employees must earn the following minimums:

• January 1, 2021 – $5.63 per hour plus tips
• September 30, 2021 – $6.98 per hour plus tips
• September 30, 2022 – $7.98 per hour plus tips
• September 30, 2023 – $8.98 per hour plus tips
• September 30, 2024 – $9.98 per hour plus tips
• September 30, 2025 – $10.98 per hour plus tips
• September 30, 2026 – $11.98 per hour plus tips

There are several significant exceptions to the FLSA. Employees or workers who are not encompassed within the definition of a “covered employee” under the FLSA do not enjoy the minimum wage and overtime protections it affords. For example, the following types of workers are not “employees” protected by the FLSA:

• Independent contractors. An independent contractor is distinguishable from an employee based on a number of factors, including the worker’s skill and the extent of control the employer has over the worker’s actions;
• Executive, administrative, professional, and outside sales employees are paid a salary;
• Farmworkers employed on small farms;
• Babysitters (those employed casually); and
• Other exemptions.

If you are not certain if your employment exempts you from FLSA protections and guarantees, you can speak with your human resources department or contact an Ayo and Iken employment law attorney.

Next, employees are entitled to receive overtime pay for any hours they work in excess of 40 hours in any given workweek. Note that a workweek may or may not commence on Monday; rather, a workweek is defined as a recurring period of 168 hours. Any hour over 40 hours worked in a recurring period of 168 hours is considered “overtime” and must be compensated at a rate of at least one and one-half times the employee’s regular pay rate.

For example, suppose John begins work on Saturday and, over the next 168 hours, he works a total of 60 hours. His pay rate is Florida’s minimum wage of $7.93 per hour. For the first 40 hours, he will be compensated at his regular rate of pay of $7.93 an hour. But for the other twenty hours, he must be compensated a minimum of $11.89 per hour. Once a 168-hour period has elapsed, Jorge’s pay returns to $7.93 per hour.

Wage or Hour Violations – What To Do?

Most employers treat their employees fairly and pay them in accordance with the law. It is in the employer’s interest to do so because: (1) employees who are happy and feel their employer treats them fairly are more productive and tend to remain with that employer; and (2) it cuts down on the number of complaints and lawsuits, which can be bad for the company’s public image.

If you feel a wage violation has occurred, you are permitted to bring a civil suit against your employer for unpaid or back wages. In order to do so, you must follow these steps:

• First, you must notify your employer in writing. The notification should clearly state that you intend to bring a civil suit or action. The notice must also state what wages you believe you were entitled to (your minimum or your working wage, if higher), the date or dates and corresponding hours for each date you claim you were not paid, and the total amount you are claiming.
• Next, after the employer receives your notice, the employer will have 15 calendar days in order to either pay the total amount you claimed in your notice or to resolve the dispute with you. During this time, your employer may contact you regarding your notice and attempt to see if the dispute can be resolved for an amount less than what you claimed. In any event, the employer must resolve the claim to your satisfaction; if you are not satisfied, you may continue bringing an action against your employer.
• If your claim is not satisfied, you may then bring your case before the court. A judge will decide whether you are entitled to unpaid wages and, if so, in what amount. In presenting your case, you will need to present evidence establishing that you were employed by the employer, that you were entitled to the minimum wage (or another wage, if higher), that you were working on the dates in question, and what hours you worked those days, and that you did not receive your pay.

If you prevail in your case – that is, if the judge agrees that you did not receive the pay to which you were entitled – the judge may order that the employer pay you:

• Unpaid back wages;
• Liquidated damages that are not greater than the amount of unpaid back wages;
• Reasonable attorney’s fees and costs; and
• Any equitable relief the court deems appropriate, such as reinstating your job (if you were let go) or issuing an injunction against your employer to prohibit certain conduct.

Punitive damages – a money judgment designed to “punish” the employer – are not available in this type of civil action.

Note that the Secretary of Labor can also bring an action against the employer under the FLSA. The remedies here are similar to the remedies available under Florida law. The Secretary of Labor can assess civil penalties, fines, and/or imprisonment if it is shown that the employer has willfully or repeatedly violated the FLSA. A visit with the local Department of Labor office is usually enough to initiate an investigation.

What Defenses are Available to My Employer?

Your employer can offer a defense that the withholding of your wages was done in good faith and that he or she did not believe he or she was violating Florida law. The employer must prove this by a preponderance of the evidence; that is, that it is more likely than not true. If the judge believes the employer has done this, the judge may either reduce the amount of liquidated damages or eliminate them altogether.

What If My Employer Finds Out About My Claim and Takes Action Against Me?

Both the FLSA and Florida law have provisions designed to protect an employee who is concerned he or she may have not received his or her lawful compensation. In general, an employer may not terminate or otherwise retaliate or discriminate against an employee because he or she attempted to assert his or her rights under the law. For instance, if Wayne believes he was not paid the wages to which he was entitled, he may file a notice with his employer regarding the unpaid wages. His employer may not then terminate Wayne’s employment just because Wayne asked for his unpaid back wages. Nor may the employer take adverse actions against Wayne like harassing him, giving him menial tasks to perform, or demoting him.

Do I Need a Lawyer to File a Wage or Hour Violation Claim?

The federal and state laws are designed to make it easy for employees who have been wronged to take action and protect their rights. It is not necessary for an employee wanting to protect his or her rights to fire an attorney. However, seeking advice and assistance from an employment law attorney can take some of the anxiety away from the process and can increase the chances his or her claim will be successful. For instance, an attorney is likely to know what evidence is needed to show you have not been paid and will know the actions necessary to preserve and present evidence.

Conclusion

Our society has come a long way from the days in which employers could abuse their employees by forcing them to work long hours for little pay. Now, thanks to federal legislation like the FLSA and state legislation like Article X of Florida’s Constitution, workers enjoy rights and protections against such abuse. Workers in Florida are guaranteed a certain minimum wage: a minimum wage that, in fact, is higher than the federally-mandated minimum wage and one that increases each year automatically. In most cases (so long as an exception does not apply), employers must pay their employees an hourly wage that is at least equal to the state minimum wage. In addition, if the employee works over 40 hours in a given workweek, that employee is entitled to overtime pay that equals at least one and one-half times the worker’s regular hourly wage for each hour worked over forty hours.

Workers who feel that they have not been paid wages to which they are entitled should feel free to speak with the federal Department of Labor (for violations of FLSA) and/or file a notice with their employer (for violations of Florida law). This is because both federal and state laws protect workers against any sort of discrimination or retaliation for attempting to protect their rights to fair wages. Whether pursued by the Department of Labor or by the employee in a civil action, employees who show they have had wages unlawfully withheld by their employer can recover not only those unpaid wages but liquidated damages equal to those unpaid damages as well. In addition, the Department of Labor is able to pursue civil and criminal sanctions against an employer who willfully (that is, intentionally and deliberately) or repeatedly violates employees’ rights.

An employee who believes he or she is owed unpaid wages and wants to recover them through a civil suit must first give notice to his or her employer in writing and permit the employer an opportunity to settle the case. If the employer does not resolve the dispute to the satisfaction of the employee, then that employee’s case may continue through the court system. While an attorney is not required, having experienced counsel on your side can increase your chances of success.