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PSN on June 12, 2012 - 11:00pm
By Jeanette Smith, Executive Director of South Florida Interfaith Worker Justice, and Cristina Francisco-McGuire, Senior Policy and Program Specialist at Progressive States Network, Huffington Post, June 13, 2012
On the heels of a report stating that Florida is the 15th worst state in the nation for workers trying to recover stolen wages, the Broward County Commission directed the county attorney to draft a wage theft ordinance, following the examples of Miami-Dade and Palm Beach Counties. The report issued by the Progressive States Network graded states based on how well they protect workers ability to receive their earned wages. According to the report, if this were school, Florida would have flunked out by now.
In particular, Florida has exactly zero laws on the books that would incentivize employers to stay honest. Transparency and accountability measures such as notice to employees of wages and paydays, record-keeping, pay stubs with each pay period, and the right for enforcement agencies to inspect records also help workers keep abreast of their terms of employment. In this category, Florida held the shameful honor of scoring 0, a score that only Alabama and Mississippi -- two states that have never had wage and hour laws -- can also share.
Other ways in which Florida's wage theft laws are insufficient:
- The state has decent provisions in place that protect workers from employers who fire, demote, or otherwise discriminate against an employee who has taken action to recover wages. However, the laws only apply to minimum wage and overtime cases; if someone is trying to recover wages beyond the minimum wage, they remain unprotected.
- Workers are entitled to recover an additional amount equal to the amount of wages owed (single liquidated damages) in minimum wage, overtime, and retaliation violations, an important provision that can help them pay off interest on credit card debt or loans that had to be taken in order to cover living expenses during the process of recovering stolen wages. However, this right is revoked if employers can prove that they erred in good faith. Workers are not eligible for liquidated damages at all in wage payment cases.
- Civil penalties in the form of fines or jail time are possible under the minimum wage, overtime, and retaliation law when action is brought by the Attorney General. However, in practice, the law fails. According to the Research Institute on Social & Economic Policy, the Florida Attorney General did not bring a single civil action to enforce the state's minimum wage law since the law's inception in 2004 and the report's research period ending in December 2011. The Attorney General's recalcitrance is made even more egregious by the fact that, though Florida enacted its first minimum wage law in 2004, it was not actually achieved because of any action on the legislature's part. Rather, the law was overwhelmingly passed by Florida's citizens through a ballot initiative.
- Finally, the state does not have any statutes that address misclassification of employees, a growing problem that is already rampant in several low-wage industries. The most common form allows employers to skirt an array of labor standards and taxes by misclassifying employees as "independent contractors," which allows employers to profit on the backs of both their employees and the general public.
Fortunately for South Floridians, Miami-Dade County passed the state's first wage theft ordinance in February 2010, fully implementing the ordinance late that year and securing through conciliation or hearings almost a million dollars for over 600 workers during the first year and a half of the program. Although the Florida Retail Federation (FRF) and Associated Builders and Contractors have pushed back against the successful wage theft ordinance both in court and at the legislative level, the ordinance has withstood the pressure. In April 2012, a judge threw out the lawsuit brought by the FRF, calling the Miami-Dade Wage Theft Program "a responsible and reasonable exercise of government authority."
Small business owners in particular have spoken out in favor of the ordinance with one arborist commenting that it's tough enough to do business in this economy without having to stand next to a pirate while you do it. Palm Beach County is currently drafting its own wage theft ordinance after piloting a Legal Aid Society Wage Theft Program, which was not as successful as sponsors had hoped. Hopefully, the rest of the state will soon follow the example set by South Florida and we'll begin to see passing grades throughout the state. Florida needs economic enhancement not economic hindrance.