On November 2, 2004, Florida voters approved a constitutional amendment that created Florida’s minimum wage. The minimum wage applies to all employees in the state covered by the federal minimum wage. Florida law requires a new minimum wage calculation on September 30 of each year, based on the Consumer Price Index. If that calculation proves higher than the federal rate, the state’s rate would be adjusted and would then take effect the following January.

In 2015, Florida’s minimum wage was $8.05 per hour, with a minimum wage of at least $5.03 per hour for tipped employees, in addition to tips. According to documentation listed on the  Florida Department of Economic Opportunity’ website , in 2016 the Florida minimum wage will remain at $8.05 ($5.03 for tipped employees) per hour, based on the current Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region for the 12-month period prior to September 1, 2015 (CPI-U). Over the last 12 months, the CPI-U was essentially unchanged.

Employers of “tipped employees” who meet eligibility requirements for the tip credit under the Fair Labor Standards Act (FLSA) may count tips actually received as wages under the FLSA.  However, the employer must pay tipped employees a direct wage. The 2016 minimum wage for tipped employees will remain at $5.03 per hour plus tips.

In deciding whether the federal or state minimum wage applies, federal law directs businesses to pay the higher of the two wage rates. The Florida minimum wage will prevail over the federal rate until (and unless) the federal minimum wage becomes higher than the state rate. When inflation is positive (i.e., the price of consumer goods and services increases), the CPI increases. However, if the CPI-U is negative (in times of deflation) the minimum wage does not decrease. (Cadet v. Florida Agency for Workforce Innovation, 2011 WL 2941389 (2d Circuit May 2, 2011).)

Employers must pay their employees the hourly state minimum wage for all hours worked in Florida. The definitions of “employer,” “employee,” and “wage” in Florida are the same as the federal definitions established in the FLSA.

An employee who has not received the lawful minimum wage after notifying his or her employer and giving the employer 15 days to resolve any claims for unpaid wages may bring a civil action in a court of law against the employer to recover back wages plus damages and attorneys’ fees. The state attorney general also may sue to enforce the minimum wage.

An employer found liable for intentionally violating minimum wage requirements is subject to a fine of $1,000 per violation, payable to the state of Florida. The state attorney general or other official designated by the state legislature may bring a civil action to enforce the minimum wage.

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Ogletree Deakins’ Wage and Hour Practice Group features attorneys who are experienced in advising and representing employers in a wide range of wage and hour issues, and who are located in Ogletree Deakins’ offices across the country.

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