A minimum wage increase for most Florida nonexempt workers goes into effect on January 1, 2019. The current minimum wage of $8.25 per hour will be increased to $8.46 at the beginning of the new year.
States have discretion to enact laws setting a minimum wage – so long as it is above the federal minimum wage rate dictated by the Fair Labor Standards Act (“FLSA”). The federal minimum wage rate is currently $7.25 per hour, and has not been changed since 2009.
Florida has had a state minimum wage since 2005, after voters passed an amendment to Article X of the State Constitution. By law, the Department of Economic Opportunity is tasked with calculating a minimum wage rate based on inflation for the 12 months prior to September 1st of each year according to the federal Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region. The Florida minimum wage was last increased effective January 1, 2018, when it was raised from $8.10 per hour to the current rate of $8.25 per hour.
The Florida minimum wage applies to all workers covered under the FLSA who are not subject to one of that law’s exceptions or exemptions. The FLSA’s minimum wage covers employees of enterprises that have annual gross volume of sales or business done of at least $500,000, or whose employees are engaged in interstate commerce or in the production of goods for commerce, both of which are defined very broadly under the relevant law. Exceptions to the FLSA minimum wage apply only under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees, and student-learners. The FLSA exemptions generally depend on employees’ job duties and whether they are paid on a salary basis at or above a certain level.
Employers of tipped employees who take a tip credit pursuant to the FLSA must also adjust their rates of pay for tipped employees under the recently revised Florida law. Under those circumstances, the new hourly minimum wage for tipped employees will be $5.44 as of January 1, 2019.
Nationwide, many state and local governments have acted to increase the minimum wage in their jurisdictions. Of the 29 states and the District of Columbia that have enacted hourly minimum wage rates above the federal minimum, Florida is toward the lower end of the spectrum.
Florida employers should be aware of the upcoming change and plan accordingly. The law requires posters regarding the minimum wage be posted in a conspicuous and accessible location in ever workplace. Florida’s poster can be downloaded at www.floridajobs.org, and the federal poster may be downloaded at https://www.dol.gov/whd/regs/compliance/posters/flsa.htm.
Both Florida law and the FLSA provide for civil suits against noncompliant employers. An employee who successfully brings an action for unpaid minimum wages can collect their back wages plus liquidated (double) damages. The statutes of limitation for such civil suits are two years under federal law, or three years for willful violations, and four years under Florida law, or five years for willful violations.