Miami-Dade County, Florida Wage Theft Ordinance

Under Fla. Stat. 448.08, an employee would be entitled to attorney's fees if the employee prevails in an action against an employer for unpaid wages. Similarly, in the recently enacted Wage Theft Ordinance, the employee is also entitled to attorney's fees if the employee prevails.

Under the Fair Labor Standards Act, if an employee is nonexempt, and prevails in an action against an employer for non payment of minimum wage and/or overtime, the employee would be entitled to double damages.

However, under the Wage Theft Ordinance, if an employee is not paid the agreed upon wage, salary, or piece rate, the hearing officer can award treble damages.

The powers given to the hearing officer under the Ordinance to issue subpoenas for records and witnesses, and to issue fines for non compliance are very broad.

WAGE THEFT ORDINANCE

Miami-Dade in South Florida is the first county in the nation to adopt a countywide wage theft law. The Ordinance, which became effective on March 1, 2010, applies to private sector employees and employers, prohibits wage theft, and provides administrative procedures and private causes of action. An employer found to be in violation of the Wage Theft Ordinance will be required to pay the actual administrative processing and hearing costs as well as restitution to the employee, which would include back wages owed as well as liquidated damages of double that amount and possibly treble damages.

What this means for employers in Miami-Dade County is that a simple oversight or misunderstanding regarding which employees can be classified as exempt or as independent contractors under the Fair Labor Standards Act ("FLSA"), may now lead to a finding that the employer has committed "wage theft."

According to a report from the Office of Commission Auditor, which accompanied the Ordinance, for the past five years the Southern District of Florida (the federal trial court with jurisdiction over Miami-Dade County) has had a disproportionately high number of FLSA cases filed. Nevertheless, the summary that accompanied the Ordinance reflects the Commission's belief that the requirement for employees to opt-in to a FLSA class action lawsuit hampers their ability to seek remedial action in courts. Thus, the summary states that the Ordinance "is intended to be a tool to root out violations of U.S. labor laws occurring in Miami-Dade County."

According to the Ordinance, a "wage theft violation" occurs when an employer fails to pay any portion of the wages due to an employee, according to the wage rate applicable to the employee, within a reasonable time from the date on which that employee performed the work for which the wages are compensation. The Ordinance defines reasonable time as no later than 14 calendar days from the date the work was performed; however, this time may be modified to no longer than 30 days by an express agreement between the employer and employee that has been reduced to writing and signed by the employee.

The Ordinance defines wage rate as "any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece." Thus, this provision could be interpreted more broadly than the employee's "regular rate" under the FLSA.

Once an employee brings a timely claim that wage theft has occurred, the accused employer will have to defend itself before a county-appointed hearing examiner. The Ordinance does not set out requirements or qualifications a person must possess to be appointed a hearing examiner; thus, it is possible the hearing examiner may not be a judge or attorney or have a background in labor and employment law. The mechanics of the hearing as set out in the Ordinance will be like a trial, including discovery in accordance with the Florida Rules of Civil Procedure. Employers will have to be very careful with this process because an employee can choose at any time to stop the proceedings under the Ordinance and file a civil action in State or Federal Court (for violation of state or federal wage/hour laws, which would likely be the basis for the wage theft allegation). Also, should a hearing examiner find the employer in violation of the wage theft Ordinance, the hearing examiner can award damages of up to three times the amount of the unpaid wages.

Employers' Bottom Line:

Employers in Miami-Dade County need to be more vigilant than ever to ensure that employees are properly classified and promptly paid for all work performed. A stringent review of employees currently classified as exempt or as independent contractors, conducted at the direction and supervision of experienced employment law counsel, is recommended to ensure complete compliance with the FLSA. Employers should also set out in writing when wages will be paid and have the employees sign this written timeline of payments. (Note that the Ordinance only permits the employer to extend the time for payment of wages to up to 30 days from the date the work is performed and then only with the written agreement of the employee.)

Additionally, employers will need to review their time keeping polices and make sure that accurate time records are being kept and that all time worked by employees is being recorded. While most employers only keep time records for nonexempt employees, it may be prudent to require exempt employees to do so as well. If a hearing officer determines that an employee is improperly classified as exempt, the employer will have the burden of proving actual time worked. Without accurate records, the employee can estimate the time and the hearing officer will base the wage calculation on that estimated time.

Points of note

Threshold amount is $60

Wage is any agreed wage but must meet highest rate established by any legislation (i.e. minimum wage)

Statute of limitations is one year from when the unpaid work was performed

Reasonable time to have received payment for work done is no later than fourteen calendar days from the date on which the work is performed

May be modified for a period not to exceed thirty days by a written agreement between the employer and the employee
It’s unclear exactly how this will affect the time for filing a complaint for a day laborer as opposed to a formal employee – the Implementing Order is still being drafted

Complaints

Written complaint can be filed with the County by employee or an organization to which the employee belongs (i.e. membership-based workers center); there is no filing fee
County will attempt conciliation between employee and employer, resulting in a written agreement between the parties that is actionable if breached
If conciliation is not possible, matter will be referred to a hearing officer
There is a strong financial incentive to resolving the matter quickly at this stage in order to avoid additional financial penalties including the cost of the administrative hearing and treble damages to be paid to the employee, as well as attorneys fees to a prevailing party.

Hearings

In any hearing, employee may be represented by an attorney or a non-attorney advocate
Hearing officer can consolidate any cases listing the same employer
Although burden of proof is on the employee, the employer has a legal obligation to maintain records and if the employer has not done so, just and reasonable inference will be made based on evidence presented by employee
If employee files complaint in another venue (i.e. Small Claims Court), complaint filed with County will be withdrawn – no double filings
Hearing officer will issue enforceable written order upon completion of hearing

Damages

If employer is found by the hearing officer to be in violation, employee will receive treble damages as compensation for economic losses suffered due to not receiving wages at the time they were due
Employer, if found in violation, will also be liable to the County for the administrative costs of the hearing

Enforcement

If employer fails to comply with order within 45 days after receiving written notice from the County, the County Attorney will issue an order allowing for either a one-time 45 day extension period or may additionally order the employer to pay interest on the full amount of treble damages from the date of the finding by the hearing officer and interest on the administrative cost assessment until the amounts are paid in full

Effective date

Ordinance became effective on March 1, 2010

Miami-Dade Legislative Item
File Number: 093228

Printable PDF Format

File Number: 093228

File Type: Ordinance

Status: In Committee

Version: 0

Reference:

Control: Board of County Commissioners

File Name: PROHIBITING WAGE THEFT EST CHAPTER 22 OF CODE

Introduced: 12/3/2009

Requester: NONE

Cost:

Final Action:

Agenda Date: 2/18/2010

Agenda Item Number: 7A

Notes:

SEE 100638 FOR FINAL VERSION AS ADOPTED.

Title:

ORDINANCE ESTABLISHING CHAPTER 22 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROHIBITING WAGE THEFT, PROVIDING ADMINISTRATIVE PROCEDURES AND PRIVATE CAUSE OF ACTION FOR WAGE THEFT PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

Indexes:	AMENDING CODE
	WAGES

Sponsors:	Natacha Seijas, Prime Sponsor
	Jose "Pepe" Diaz, Co-Sponsor
	Audrey M. Edmonson, Co-Sponsor
	Sally A. Heyman, Co-Sponsor
	Rebeca Sosa, Co-Sponsor
	Bruno A. Barreiro, Prime Sponsor
	Barbara J. Jordan, Prime Sponsor
	Dennis C. Moss, Prime Sponsor
	Katy Sorenson, Co-Sponsor
	Dorrin D. Rolle, Co-Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

Board of County Commissioners	2/18/2010	7A	Amended
REPORT:	(See Agenda Item 7A Amended; Legislative File No. 100638)

Commission Auditor	2/5/2010		Legislative notes attached		2/18/2010

Government Operations Committee	1/12/2010	1E1	Forwarded to BCC with a favorable recommendation				P
REPORT:	Assistant County Attorney Geri Bonzon-Keenan read the foregoing proposed ordinance into the record. Chairman Gimenez opened the public hearing and called for persons wishing to appear before the Committee in connection with this proposed ordinance. The following persons appeared before the Committee in support of this proposed ordinance: Ms. Cynthia Hernandez, 1847 SW 9th Street, Researcher, Research Institute on Social and Economic Policy, Florida International University. She expressed appreciation to Commissioner Seijas for her initial involvement with wage theft legislation. Ms. Hernandez commented on research performed on wage theft in South Florida. Mr. Levis Torres appeared on behalf of “We Count.” He said that the organization had received daily complaints from construction and agriculture workers regarding wage theft, and that successful implementation of this proposal would result in more money being recovered for working families. Mr. Jim Junecko, 701 NE 67 Street, #1, 33138, noted his experience with wage theft while working as a bellman for a hotel. He stated that he was asked to work without breaks, and after working a 16-hour shift, the contracted gratuity was not included in his paycheck. Reverend Gail Tapsch, Board Member, South Florida Interfaith Worker Justice, and representing the Unitarian Universal of Churches, 3970 NW 21 Avenue, Ft Lauderdale, Florida, noted wage theft cuts to the core of moral issues across all religious and ethical lines. She noted this proposed ordinance could be an opportunity to set a precedent for the County and State. Ms. Jeanette Smith, 14785 SW 172 Street, representing South Florida Interfaith Worker Justice, noted an incident with Guatemalian workers in South Dade who worked Monday through Saturday without receiving any pay. She pointed out these cases were not unique. Mr. Jose Rodriguez, 3000 Biscayne Boulevard, Attorney, Florida Legal Services, said the Department of Labor would state that they had no jurisdiction and most workers could not afford an attorney. Mr. Rodriguez noted this ordinance protects both good businesses and victims. Ms. Emily Eisenhauer, 720 15 Street, Apt. 8, Miami Beach, Florida 33139, Research Institute on Social and Economic Policy, Florida International University, noted wage theft impacts family and communities and took away money needed to circulate through the local economy. She stated that the economic impact of this problem was greater than the cost of implementing the ordinance. Ms. Eisenhauer noted this proposal impacts businesses and workers. Reverend Renwick Bell, 5050 NE 26 Terrace, Light House Point, Florida 33064, appeared on behalf of Rabbi Solomon Schiff, President, South Florida Interfaith Worker Justice. He spoke in support of this proposed ordinance and emphasized the need to empower those who are powerless. Mr. Fred Frost, 10961 SW 155 Place, Miami, Florida 33196, South Florida AFL-CIO, appeared in support of this proposed ordinance. He noted too many people were not getting paid. Ms. Francesca Menes, organizer, Florida Immigrant Coalition, (FIC) 8325 NE 2nd Avenue, Miami, Florida 33138, noted the FIC was comprised of a coalition of faith, union, community organizations, women’s organizations, immigrant rights organizations, research institutes, legal service providers and business owners who were in support of this proposal. She referenced a letter of support that was presented to the Committee members and noted the County must send a message that it was not right for people to work and not get paid. Ms. Renaye Manley, Interfaith Worker Justice national office, 3301 West Bryn Mawr, Chicago, Illinois, appeared in support of this proposed ordinance. She noted Secretary of Labor Hilda Solis had vowed to increase resources to address wage theft; however, it required innovative partnerships and creative use of local enforcement strategies such as this proposal to assist the U.S. Department of Labor in ending the practice of wage theft. Ms. Manley urged the Committee to forward this proposed ordinance to the County Commission with a favorable recommendation. Ms. Marleine Bastien, 710 NE 152 Street, expressed appreciation to Commissioner Seijas for bringing forth this issue. She noted this proposed ordinance was about restoring the dignity of workers from all walks of life. Ms. Silvia Cubides, 139 NE 16 Avenue, North Miami Beach, appeared in support. She noted she had been a victim of wage theft and urged the Committee to support this proposal. After hearing no other persons to come before the Committee, Chairman Gimenez closed the public hearing. Chairman Gimenez noted he had fiscal concerns with this proposed ordinance and felt that it needed more debate from the County Commission. He recommended that the Committee forward this proposal to the County Commission without a recommendation. Commissioner Seijas noted she concurred with Chairman Gimenez that this item needed more debate. She said this ordinance would be considered by the County Commission on February 2, 2010 if forwarded through the normal process. However, she would recommend that it be forwarded to the February 18, 2010 County Commission meeting which would allow an additional two weeks for the public to voice their concerns and to contact Chairman Gimenez to address their concerns. It was moved by Commissioner Seijas that this proposed ordinance be forwarded to the County Commission with a favorable recommendation. This motion was seconded by Commissioner Edmonson. Commissioner Diaz commended Commissioner Seijas for this proposal and spoke in support. He noted this was an issue of humanity; not a status issue and wage theft was a crime. Commissioner Diaz asked to be listed as a co-sponsor to this ordinance. Commissioner Sosa stated that it was fair to defend those who had no one to assist them and she was supportive of the intent of this proposed ordinance. She noted; however, that she would like to discuss the implementation of this proposal without additional costs. Commissioner Sosa said this ordinance needed to be implemented without placing a burden on poor workers or on taxpayers. Commissioner Seijas suggested that Chairman Gimenez schedule a Sunshine Meeting with her to discuss his concerns regarding this proposed ordinance. Chairman Gimenez concurred with Commissioner Seijas’ suggestion regarding a Sunshine Meeting and asked Assistant County Attorney Eric Rodriguez who crafted this proposal to be available at this Meeting. He also asked Assistant County Attorney Bonzon-Keenan or Mr. Rodriguez to provide him with a report on the Fair Labor Standards Act, Small Claims Court and any State/Federal laws relating to this issue. Chairman Gimenez said that he had been a union member for 28 years but he now had different responsibilities and had fiscal concerns. Chairman Gimenez noted he would not be able to vote for this ordinance as presented; however, he could vote for an amended version in the future. Commissioner Edmonson asked to be listed as a co-sponsor. Assistant County Attorney Geri Bonzon-Keenan advised that normally this ordinance would be forwarded to the February 2, 2010 County Commission meeting. She noted the subsequent Commission meeting was scheduled for February 18, 2010. Commissioner Seijas requested and Chairman Gimenez concurred that this proposed ordinance be forwarded to the February 18, 2010 County Commission meeting to allow sufficient time for Chairman Gimenez’ concerns to be addressed. Hearing no further comments or questions, the Committee voted on this proposed ordinance as presented.

Board of County Commissioners	12/15/2009		Tentatively scheduled for a public hearing	Government Operations Committee	1/12/2010

Board of County Commissioners	12/15/2009	4C	Adopted on first reading		1/12/2010		P
REPORT:	Assistant County Attorney Abigail Price-Williams read the foregoing proposed ordinance into the record. The foregoing proposed ordinance was adopted on first reading and set for public hearing before the Government Operations Committee meeting on Tuesday, January 12, 2010 at 9:30 a.m.

County Attorney	12/3/2009		Referred	Government Operations Committee	1/12/2010

County Attorney	12/3/2009		Assigned	Eric A. Rodriguez

Legislative Text

TITLE
ORDINANCE ESTABLISHING CHAPTER 22 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROHIBITING WAGE THEFT, PROVIDING ADMINISTRATIVE PROCEDURES AND PRIVATE CAUSE OF ACTION FOR WAGE THEFT PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMIDADE COUNTY, FLORIDA:

Section 1. Chapter 22, Sections 1-10 of the Code of Miami-Dade County, Florida, is hereby established to read as follows:1
>>CHAPTER 22 - WAGE THEFT

Sec. 22-1. Declaration of Policy.
It is hereby declared to be the policy of Miami-Dade County in the exercise of its police power for the public safety, health and general welfare, to eliminate and prevent wage theft. Eliminating the underpayment or nonpayment of wages earned by persons working in the County serves the public purpose by promoting economic security and dignity for those working in the County; by promoting business and economic development through the elimination of unfair economic competition by unscrupulous businesses that do not pay or that underpay their employees; and by relieving the burden on the public that subsidize unscrupulous employers whose employees are forced to rely on public assistance because of unpaid or underpaid wages.

Sec. 22-2. Definitions.

(a) Employee shall mean a natural person who performs work within the geographic boundaries of Miami-Dade County while being employed by an employer, but shall not include any bona fide independent contractor.

(b) Employer shall include any person who, acting either individually or as an officer, agent, or employee of another person, acts directly or indirectly in the interest of a person or entity employing an employee;
but such term does not include:
(1) The United States or a corporation wholly owned by the government of the United States;
(2) The State of Florida;
(3) Miami-Dade County;
(4) The Public Health Trust of Miami-Dade County, or
(5) An Indian Tribe.

(c) The meaning of employ, including as used in the term employment, shall include to suffer or permit to work.

(d) Independent contractor shall have the same meaning as in the Internal Revenue Code and implementing federal regulations.

(e) Wage rate shall mean any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece but in all cases shall be equal to no less than the highest applicable rate established by operation of any federal, state or local law.

(f) Reasonable time shall be presumed to be no later than fourteen calendar days from the date on which the work is performed but may be modified for a period not to exceed thirty days by an express agreement between the employer and the employee which has been reduced to writing and signed by the employee.

(g) Threshold amount shall mean sixty dollars ($60).

(h) Liquidated damages shall mean twice the amount a respondent employer is found to have unlawfully failed to pay the complainant employee. Where an employee is awarded treble damages for wage theft violations, liquidated damages are awarded in addition to back wages in order to compensate for the economic losses suffered by reason of the employee not receiving their wage at the time it was due.

Sec. 22-3. Wage theft violations.

For any employer to fail to pay any portion of wages due to an employee, according to the wage rate applicable to that employee, within a reasonable time from the date on which that employee performed the work for which those wages were compensation, shall be wage theft; and such a violation shall entitle an employee, upon a finding by a hearing examiner appointed by Miami-Dade County or by a court of competent jurisdiction that an employer is found to have unlawfully failed to pay wages, to receive back wages in addition to liquidated damages from that employer.

Sec. 22-4. Procedures for wage theft complaints.

(1) Filing wage theft complaint.

(a) Threshold amount. In order for a complaint to be submitted to the County by, or on behalf of, an aggrieved employee, that employee must allege a wage theft violation in which the unpaid wages are equal to no less than the threshold amount.

(b) Either of the following may file a written, signed complaint with the County using the procedures set forth in an Implementing Order:,

(i) an employee aggrieved by a wage theft action prohibited by this article; or

(ii) any entity a member of which is aggrieved by a violation of this article.

(c) A signed complaint for wage theft must be filed with the County in the manner prescribed by Implementing Order no later than one (1) year after the last date upon which the complainant employee performed the work for a respondent employer with regard to which the employee alleges a violation of this article has occurred ("filing deadline"); however, with respect to alleged ongoing violations, once a complaint has been made in compliance with the filing deadline, the County's enforcement capacity is limited only by the applicable statute(s) of limitations.

(d) The complaint shall set forth the facts upon which it is based with sufficient specificity to identify the respondent or respondents and for the County to determine both that an allegation of wage theft has been made and that the threshold amount has been met.

(2) Respondent.

(a) Upon the filing of any complaint, the County shall promptly determine that the wage theft complaint alleges wage theft, names at least one respondent and meets the threshold amount criterion. The duty of the County in determining whether a complaint meets this criterion is limited to receiving the complaint and comparing the information provided in the complaint to the criteria required herein. This determination is a ministerial act and may not be based on further investigation or the exercise of independent judgment.

(b) Upon making such determination, the County shall serve the complaint and a written notice on the respondent or person charged with the commission of a wage theft practice, setting forth the allegations, rights and obligations of the parties including, but not limited to the right to a due process hearing on the matter before a Hearing Examiner and that the respondent may be responsible for the costs of the Hearing Examiner and other enforcement costs. Such service shall be by certified mail.

(c) Each respondent shall file an answer to the complaint with the County not later than twenty (20) days after receipt of the complaint and notice from the Director.

(3) Subpoenas.

(a) If a Hearing Examiner is appointed, any party may request that a subpoena be issued by the Hearing Examiner. Witnesses summoned by subpoena of the Hearing Examiner shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the County Court of Miami-Dade County, Florida. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by the party.

(b) Within ten (10) days after service of a subpoena upon any person, such person may petition the Hearing Examiner to revoke or modify the subpoena. The Hearing Examiner shall grant the petition if it finds that the subpoena requires appearance or attendance at an unreasonable time or place, that it requires production of evidence which does not relate to the matter, that it does not describe with sufficient particularity the evidence to be produced, that compliance would be unduly onerous, or for other good reason.

(c) In the case of the contumacy or refusal to obey a subpoena, the Hearing Examiner or any party may seek enforcement of a subpoena issued under the authority of this chapter by filing a petition for enforcement in the County Court of Miami-Dade County, Florida;

(d) In any enforcement proceedings authorized by this chapter, the court may award to the prevailing party all or part of the costs and Attorney's fees incurred in obtaining the court order as authorized by the Florida Rules of Civil Procedures;

(e) Any person who willfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if in his or her power to do so, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(f) Any person who, makes or causes to be made any false entry or false statement of fact in any report, account, record or other document submitted to the Hearing Examiner pursuant to its subpoena or other order, or shall willfully mutilate, alter or by any other means falsify any documentary evidence, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(4) Applicability of Florida Rules of Civil Procedure.

(a) The provisions of Rule 1.090, Florida Rules of Civil Procedure, shall govern the computation of any period of time prescribed or allowed by this chapter or by rules, regulations, or orders adopted pursuant to this chapter.

(b) All papers or pleadings required by this chapter to be served may be served by certified mail or in accordance with Rule 1.080, Florida Rules of Civil Procedure.

(5) Standards for Resolving Factual Disputes.

(a) Adequate Records. When the following three conditions are met:

(i) where by operation of some other statute or regulation, a respondent employer has an obligation to keep records of an employee's hours worked and or records of compensation provided to an employee; and

(ii) where such records are imprecise, inadequate or do not exist; and

(iii) where a complainant employee presents sufficient evidence to show, as a matter of just and reasonable inference, the amount of work done or the extent of work done or what compensation is due for the work done;

(b) Then the burden of imprecision falls on the respondent whose obligation it was to keep accurate records and the respondent must come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the complainant's evidence; if the respondent fails to meet this burden, the Hearing Examiner or any court, whichever is applicable, may award approximate damages based on the complainant's evidence.

(6) Conciliation.

(a) It is the policy of the County

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