URGENT: Miami-Dade County Passes Wage Theft Ordinance

Miami-Dade County Commissioners Pass Wage Theft Ordinance With Potentially Significant Ramifications For Miami-Dade Employers

Over the past several years, employers throughout the country have seen a significant increase in the number of wage-related lawsuits, particularly lawsuits seeking the recovery of overtime compensation under a federal statute known as the Fair Labor Standards Act (“FLSA”).  Florida reportedly is at (or near) the top of the list for the state with the most FLSA litigation. 

On February 18, 2010, the Miami-Dade Board of County Commissions (“Commissioners”) potentially increased the number of wage-related claims to be commenced against Miami-Dade employers by passing a “wage theft” ordinance that establishes a streamlined, administrative procedure for the recovery of unpaid wages, and also provides for the recovery of treble damages.  The ordinance will become effective on March 1, 2010, unless it is vetoed by the Mayor (and if it is vetoed, it shall become effective upon an override vote by the Commissioners). 

In summary form, the ordinance provides as follows:

·         It shall be deemed “wage theft” for any employer to fail to pay any portion of wages due to an employee within a “reasonable time” from the date the employee performed the work.  “Reasonable time” is defined as no later than 14 calendar days (or up to 30 days if agreed upon in writing signed by the employer and employee).

·         To commence an action under the ordinance, the employee must file a signed complaint with the County setting forth a claim for at least $60.  The complaint generally must be filed within 1 year after the last date the work at issue was performed.

·         The employer must file an answer to the complaint with the County within 20 days after receipt of the Complaint. 

·         The employer will have the right to a “due process hearing” before a Hearing Examiner. Within 15 days after service of the complaint on the employer, either party may request a hearing before a Hearing Examiner. 

·         Before the matter is referred to a Hearing Examiner, the County will attempt to resolve the matter through conciliation.

·         The County will appoint a Hearing Examiner “deemed qualified to hear wage theft matters.” 

·         The hearing will take the form of a mini-trial, during which the parties may submit evidence, cross examine witnesses, and have subpoenas issued.  Testimony will be taken under oath.  The parties may even request to proceed with discovery (i.e., depositions, interrogatories, requests for production of documents) before the hearing. 

·         As a general rule, the burden of proof is on the employee.  If, however, the employer has a legal obligation to maintain time and payroll records for the employee (such as an obligation under the FLSA to maintain time records for non-exempt employees), and if the employer’s records do not exist or are imprecise, then the burden will fall on the employer to negate the evidence presented by the employee with respect to the hours worked and wages paid. 

·         If, before the Hearing Examiner issues a final determination, the employee commences a private action in any state or federal court seeking unpaid wages, then the employee’s complaint with the County will be deemed withdrawn. 

·         The Hearing Examiner will issue a final order.  If the Hearing Examiner finds against the employer, then the employer must pay the employee three times the amount of back wages deemed to have been withheld.  A “losing” employer will also have to pay the Board of County Commissioners for the cost of the hearing. 

·         The final determination of the Hearing Examiner may be appealed in court. 

·         The parties have the right to be represented by counsel or a “non-lawyer advocate.”

All Miami-Dade employers, without regard to size, are covered by the ordinance except for the United States, the State of Florida, Miami-Dade County, the Public Health Trust of Miami-Dade County, and any Indian Tribe.