Broward County Becomes the Second County in Florida to Adopt Wage Protection Ordinance

On October 23, 2012, Broward County became the second county in Florida to adopt a controversial wage protection ordinance. In a seven-to-two vote, with Commissioners Stacy Ritter and Chip LaMarca voting against the ordinance, and despite heavy opposition from Broward County business leaders, the Broward County Commission approved the ordinance, which will become effective on January 2, 2013.

The Broward County ordinance was originally referred to as “wage theft,” but the name was subsequently changed to “non-payment of earned wages.” The non-payment of earned wages occurs when “an employer fails 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.” In summary, the ordinance gives employees who are underpaid or unpaid for work performed within the geographic boundaries of Broward County, an additional avenue, fairly duplicative of the federal and state laws, for bringing an administrative action for the recovery of unpaid wages in excess of $60.00. The ordinance defines an “employer” without regard to its size, gross volume of sales, or business transacted, but it provides an exemption for the United States, the State of Florida, and any Indian tribe.

Under the Broward County ordinance, the employee must first notify the employer in writing within 60 days after the wages were due but not paid. If the dispute is not resolved at this stage, the employee or a union (on behalf of the employee) may file a written complaint against the employer with Broward County no later than one year after the employee performed the work for the employer. After the filing of the complaint, the County will appoint a hearing officer to the matter. The hearing officer needs no specialized knowledge or qualifications other than being a member of the Florida Bar and maintaining membership in good standing for at least five years. The hearing officer will conduct a mini-trial. If the hearing officer determines by a preponderance of evidence that the employer violated the ordinance, then the hearing officer will issue a final administrative ruling requiring the employer to pay the employee “an amount equal to twice the amount of back wages that the respondent employer is found to have unlawfully failed to pay the complainant employee,” in addition to liquidated damages. The ordinance will also require the employer to reimburse the employee with reasonable attorneys’ fees that were incurred by the employee in connection with the hearing. The employer must also pay the Board of Commissioners “an assessment of costs in an amount not to exceed actual administrative processing costs and the cost of the hearing.” Moreover, the ordinance mandates that employers located in Broward County and that employ individuals who perform work in Broward County post a notice identifying how and where to file the complaints.

More “wage theft” ordinances may soon appear in other counties in Florida. The Alachua County Wage Theft Task Force has already begun spearheading the push to enact a similar ordinance by working with the Alachua County Commission. The adoption of the Miami-Dade County “wage theft” and Broward County “non-payment of earned wages” ordinances seems to signify the beginning of a new trend of adding yet another level of bureaucracy in a process that is duplicative of existing state and federal laws, not to mention burdensome and costly for employers.