Under the new City of St. Petersburg “wage theft” ordinance, an employer commits wage theft when the employer fails to pay wages, or a portion of wages, due to an employee within a “reasonable time” (typically 14 business days) from the date on which that employee performed the work. Upon a finding by a hearing officer that an employer failed to pay wages, or a portion of wages, an employee will be entitled to recover back wages, liquidated damages (i.e., two times the amount of back wages owed), reasonable costs, and attorneys’ fees from that employer. However, the minimum “threshold” amount for which an employee can sue is $60.
A wage is defined as “any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether a salary, daily or hourly wage, or by piece.” It is unclear whether commissions would be included. The burden of proof is on the employee unless no records exist; then the burden shifts to the employer. The limitations period is one calendar year after the date wages were due to be paid.
The City will serve the complaint and a written notice on the employer, setting forth the allegations, rights, and obligations of the parties, including, but not limited to, the right to a due process hearing on the matter before a hearing officer. The employer must file an answer to the complaint no later than 21 days after service. After the complaint is filed, the City will coordinate a confidential conciliation process to attempt to resolve the complaint by agreement of both parties. However, if the employer pays the employee before the conciliation process has commenced, the City will dismiss the complaint upon verified proof of payment.
A full evidentiary hearing is required if conciliation fails. A non-lawyer may represent a party; however, it appears that fees for such a non-lawyer are not recoverable. Discovery is permitted upon motion of any party and the Florida Rules of Civil Procedure control. The final determination of the hearing officer in wage theft matters is subject to appeal in a court of “competent jurisdiction,” presumably depending on the amount in controversy.
The ordinance also contains an anti-retaliation provision that makes the employer liable for “quantifiable wages” and liquidated damages if the retaliation resulted in any loss of the employee’s wages.
The City can also conduct “proactive investigations of designated industries or employers in response to reports of alleged violations . . . from employees, residents, organizations, or employers.”
The ordinance applies to employees but not “independent contractors.” Interestingly, the ordinance excludes the City of St. Petersburg from its coverage.