The War of Wage Theft in Miami-Dade County
Employees have a new weapon
By Dale J. Morgado, Esq. and Mitchell L. Feldman, Esq.
Daily complaints of wage theft in Miami-Dade County, the inability to hire a lawyer, and hundreds of hours of study have led Miami-Dade to enact the toughest wage theft law in the land.
The new ordinance seeks to empower those who are powerless. Swift, commanding, and easy to establish, Dade County's new wage theft ordinance says: (1) if you have worked for an employer in Miami-Dade County, (2) have not been paid 14 days since you performed the work, and (3) are owed at least $60.00, then you may file a complaint seeking payment for unpaid wages.
If you are successful, you don't just get what you are owed, rather you receive three times that. Moreover, you may even be awarded your attorneys' fees. For example, let's say you performed work for two weeks and you are owed $5,000.00 for this work. Should you prevail in your complaint, you will receive your $5,000.00, plus $10,000.00 in liquidated damages. In other words, your employer will have to pay $15,000.00. On top of that, the County will order the employer to pay the costs of the preceding and under Florida Statute § 448.08, an employee would be entitled to his or her attorney's fees because they "prevailed" in action against an employer for an unpaid wage. Thus, failure to pay $5,000.00 could easily turn into a $30,000.00 problem. Employers who think they can just ignore the County's order may rethink this strategy when they learn interest accrues on the treble damages as soon as 45 days after the County tells them to pay up.
Even more, the way the ordinance reads, it is not just unpaid wages, but any underpayment of wages as well. The language is specific, "any employer [that] fails to pay any portion of wages due to an employee..." constitutes wage theft. In other words, overtime, which is supposed to be paid to certain types of employees at 1.5 times their regular rate falls within this law's grasp. Adding to the fact that the new ordinance does not prohibit class actions, employers who fail to pay their employees overtime could be looking at bottom line shattering litigation.
Speedy and simple are the words that come to mind when reviewing the process of filing a complaint under the new ordinance. So long as it is filed within one year of the unpaid wage, the process requires just enough facts to be pleaded to determine if the threshold amount of $60 or more is owed. The County then serves the complaint and written notice on the employer who has 20 days to respond. Employers who respond have the burden of keeping accurate records, and must demonstrate precise evidence showing why the wages claimed are not owed. Not to mention, there are no filing fees to have your wage theft case heard either.
Voting unanimously on February 28, 2010, the new ordinance became effective just last month. If curiosity has you reading city ordinances for fun, you can find it in Chapter 22 of the County Code. The bottom line, employers should make sure they have policies in place to prevent having to face its harsh remedies. Employees should seek counsel if an employer is not paying them what they were promised. The County has given employees the tools to help themselves; they would be wise to take advantage of them.
About the Authors
Dale J. Morgado and Mitchell L. Feldman are shareholderss in the Florida law firm of Feldman, Fox & Morgado, P.A. They practice employment law in Miami and Tampa. They may be reached at dmorgado@ffmlawgroup.com and mfeldman@ffmlawgroup.com
