The Florida Minimum Wage Act, which applies to all employees in Florida covered by the federal minimum wage, requires the state’s Department of Economic Opportunity to calculate a new minimum wage rate each year on September 30. The wage rate is based on the percentage increase in the federal Consumer Price Index (CPI) for Urban Wage Earners and Clerical Workers in the South Region for the 12-month period prior to September 1.

Florida’s minimum wage, effective January 1, 2018, is currently $8.25 per hour. According to our discussions with state government officials, beginning January 1, 2019, Florida’s minimum wage will be $8.46 per hour, which is approximately a $0.21 or 2.5 percent increase in the wage, due to the change in the CPI.

Employers of tipped employees who meet eligibility requirements for the tip credit under the Fair Labor Standards Act (FLSA) may count tips received as wages under the FLSA. However, Florida employers must pay tipped employees a direct wage. Effective January 1, 2019, the new minimum wage for tipped employees should become $5.44 per hour plus tips, which is calculated as equal to the minimum wage ($8.46) minus the 2003 tip credit ($3.02), for a direct hourly wage of $5.44 as of January 1, 2019.

In deciding whether the federal or state minimum wage applies, federal law directs that businesses must pay the higher of the two. The Florida minimum wage will prevail over the federal rate until (and unless) the federal minimum wage exceeds the state rate. When inflation is positive (i.e., the price of consumer goods and services increases) the CPI increases. However, under Cadet v. Florida Agency for Workforce Innovation, if the CPI is negative—in times of deflation—the minimum wage does not decrease. That happened in 2016.

Employers must pay their employees the hourly state minimum wage for all hours worked in Florida. The definitions of “employer,” “employee” and “wage” for state are the same as those established under 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 an 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. The Attorney General of Florida or other official designated by the Florida 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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