Florida's new minimum wage provision: an overview of the amendment to the Florida Constitution.

• Author: Midulla, Robin Greiwe

On November 2, 2004, Floridians voted to amend the Florida Constitution by adding a minimum wage provision, and on May 2, 2005, the Minimum Wage Amendment went into effect. The Florida Minimum Wage Amendment, codified as Art. X, [section] 24 of the Florida Constitution, increased the minimum wage $1 above the federal minimum wage rate to $6.15 per hour. This article describes the principle provisions of the amendment, proposed implementing legislation, and some proposed answers to the questions raised by the amendment.

Provisions of the Amendment

* Policy Statement

The Minimum Wage Amendment opens with a declaration of Florida public policy regarding payment of the minimum wage. The amendment states that all working Floridians are entitled to be paid a minimum wage sufficient to provide a decent and healthy life, that protects employers from unfair, low wage competition; and does not force working Floridians to rely on taxpayer-funded public services. (1)

* The Minimum Wage

The key language of the amendment implementing the minimum wage provides:

Employers shall pay employees wages no less than the Minimum Wage for all hours worked in Florida. Six months after enactment, the Minimum Wage shall be established at an hourly rate of $6.15. On September 30th of that year and on each following September 30th, the state Agency for Workforce Innovation shall calculate an adjusted Minimum Wage rate by increasing the current Minimum Wage rate by the rate of inflation during the twelve months prior to each September 1st using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index as calculated by the United States Department of Labor. Each adjusted Minimum Wage rate calculated shall be published and take effect on the following January 1st. For tipped Employees meeting eligibility requirements for the tip credit under the FLSA, (2) Employers may credit towards satisfaction of the Minimum Wage tips up to the amount of the allowable FLSA tip credit in 2003. (3)

In essence, the amendment simply adds a dollar per hour to the current federal minimum wage and provides for annual adjustments of the wage. This language leaves open the question, however, as to whether the state wage is applicable to all FLSA employers.

* Enforcement

Persons alleging a violation of the Florida Minimum Wage Amendment may bring a civil action against "an Employer or person violating th[e] amendment" (4) in any court of competent jurisdiction. Thus, an action may lie, not only against the employing business, but also potentially against supervisors responsible for employees not paid a minimum wage. The available relief mirrors that available under the FLSA: A prevailing employee is entitled to recover the full amount of back wages unlawfully withheld, plus the same amount as liquidated damages, and reasonable attorneys' fees and costs. (5) In addition, when appropriate, the employee may receive equitable relief such as reinstatement or injunctive relief. The amendment also provides for a fine of $1,000 per violation payable to the state for willful violations. The state attorney general or other official designated by the state legislature may also bring a civil action to enforce it. (6) The amendment provides that a multi-plaintiff enforcement action may be brought by class action pursuant to Rule 1.220 of the Florida Rules of Civil Procedure. (7)

Under the FLSA, individuals have only two years in the case of nonwillful violations, or...