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Minimum Wage

UntitledSubject to some exceptions, under the Florida Minimum Wage Act, employers must pay employees the hourly state minimum wage amount for all “hours worked”[1] in Florida. For all other minimum wage provisions, Florida follows the Fair Labor Standards Act (FLSA). The FLSA minimum wage rules apply only to covered employers[2] and covered employees who are non-exempt.[3]

The Florida Department of Economic Opportunity (DEO) calculates the Florida minimum wage annually based on the Consumer Price Index (CPI), effective the first of January. The 2016 Florida minimum wage is $8.05 per hour, higher than the federal minimum wage of $7.25.

Hours Worked

The minimum wage must be paid for all “hours worked.” The FLSA defines the term “employ” to include the term “suffer or permit to work.” This term means that if an employer covered by FLSA requires or allows employees to work, the time spent is generally “hours worked.” This includes work performed over 40 hours (for which overtime[4] must be paid to covered non-exempt employees) and time worked “off-the-clock” (when an employee continues to work at the end of regular working hours or during weekends due to the need to finish a job-related task, whether requested by the employer or not.)

Exceptions

The following employees are exempt from the minimum wage requirements:

  1. New employees under 20 years old can be paid a “training wage” of $4.25 for the first 90 days of employment.
  2. High school or college students enrolled in school full time can be paid 85% of the Florida minimum wage ($6.84 per hour) for up to 20 hours of part-time work for certain employers.
  3. Employees who customarily and regularly receive more than $30 per month in tips must be paid a direct wage of $5.03 by the employer, and may make the rest in tips up to at least $8.05 per hour (if not, the employer must credit the deficiency. See below for additional information.)

In addition, employers can pay subminimum wages to workers with disabilities, subject to specific requirements. Further, some workers are exempt from both the minimum wage and overtime pay provisions of the FLSA, such as farmworkers employed on small farms, companions for the elderly, federal criminal investigators, those employed in fishing operations, among others.

Employees covered by other laws may also be exempted from the FLSA entirely. For example, the Railway Labor Act covers most railroad workers, and the Motor Carriers Act covers many truck drivers.

Tipped Employees

Employers of tipped employees eligible under the FLSA to receive a tip credit must credit the employees to meet the minimum wage requirement. The credit must be at least the FLSA tip credit set in 2003. As of January 1, 2016, Florida employers must pay tipped employees a direct wage equal to $5.03, calculated as the minimum wage rate ($8.05) minus the 2003 tip credit ($3.02).

In addition, employees who spend more than 20 percent of their time working tasks that do not provide them with tips must be paid the higher minimum wage for those worked hours. For example, a worker who works 30 hours during the week as a restaurant cook and waits tables for 10 hours on the weekends must be paid the higher minimum wage for the hours he works as a cook.

Further, in Florida, employees who work in an occupation that customarily receives tips (e.g., bellhops, waiters and waitresses, busers, or bartenders) may not be required to share their tips with employees who are not (e.g., cooks, dishwashers, or janitors).

Day-rate, salaried and other employees

In Florida, paying workers a set amount for each day of work (regardless of how many hours they work) is legal, as long as the hourly wage rate paid is at least the legal minimum wage.  Likewise, under FLSA rules for covered salaried and commissioned employees, their average weekly hourly earnings must equal the minimum wage or higher. The same applies to piece-rate employees.

Work-related Expenses

If an employer requires a covered employee to pay for work-related supplies, such as uniforms or physical exams, for example, the employee’s wage minus these expenses must meet the legal minimum wage hourly requirements.

Penalties and Claims

In addition to unpaid wages, a covered employee has the right to collect penalties if he or she is successful in an administrative claim or lawsuit. (See Wage and Hour Claims blog article for additional information.) Additional claims and penalties may arise for ancillary claims that may accompany the wage recovery claim, such discrimination, breach of contract, and retaliation, for example.

Best Practices

Employers should regularly review their pay policies in order to identify any issues and prevent costly wage recovery litigation. Engaging knowledgeable legal counsel early in the process is key. Employees who believe that they have been paid lower wages than owed must consult a knowledgeable attorney to assess the situation, preserve any necessary evidence, and support any applicable claims and ancillary claims that may accompany the wage recovery claim.

Whether you are an employer, employee, or independent contractor, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a minimum wage situation and offer competent legal representation, if necessary. Click here to contact an attorney now.

[1] See Hours Worked blog article for additional information of what time qualifies as hours worked.
[2] See FLSA Enterprise and Individual Coverage blog article for more detail on what employers and employees are covered by the FLSA for overtime pay.
[3] See Exempt or Non-Exempt? Employee Classification Under FLSA blog article for more information. A proposed rule will raise the threshold for exempt employee classification (from $455 to $970 a week) by the end of 2016, opening the door to an increased amount of overtime claims.
[4] See Overtime Pay blog article for information on when overtime pay is due.

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