The Broward County Commission, recently approved a new ordinance prohibiting wage theft. The ordinance, Ord. No. 2012-32, § 1, which takes effect on January 2, 2013, applies to all employers, with the exception of federal and state governments and tribal employers, and creates a variety of new obligations for employers and new administrative system for employees claiming wage theft.
Definition of Wage Theft
According to the ordinance, an employer is liable for wage theft if the employer fails to pay any portion of wages due to the employee within a “reasonable time” from the date on which the compensation was earned. The law presumes that a “reasonable time” is no later than 14 calendar days from the date on which the work was performed, unless the employer has an established (by policy or practice) pay schedule whereby employees earn and are consistently paid wages according to regularly recurring pay periods. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 2.
Demand on Employer
If an employee believes they are owed $60 or more for work performed in Broward County, the employee must notify their employer within 60 days after the wages were due that they have not received the correct compensation. The notice must identify all wages the employee claims he/she is owed, the actual or estimated work dates and hours for which payment is sought, and the total amount of the alleged unpaid wages through the date of the notice. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 4.
Wage Theft Complaint
If the employer does not pay the wages specified in the employee’s notice within 15 days or otherwise resolve the claim to the employee’s satisfaction, an employee may file a sworn complaint with the county. An employee has up to one year to file a claim for wage theft. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 4.
Once the employee has sworn out a complaint with Broward County, the County will appoint a County-employed hearing examiner to determine the dispute. While the hearing examiner must be a licensed attorney, the Ordinance does not require that he/she have any experience or expertise with the various federal and state laws applicable to wage claims. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 4.
Hearing Officer Powers
The hearing examiner will have the power to subpoena witnesses and documents, order depositions and written discovery requests, consolidate multiple claims against a single employer for consideration in one hearing (similar to collective actions under the Fair Labor Standards Act), and impose fines and penalties for refusals to comply. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 4.
Mini-Trial
The Ordinance requires an in-person mini-trial, after which the hearing examiner will issue a final and binding determination. Employees would be entitled to recover any unpaid back wages, plus an equal amount in liquidated damages, as well as attorneys fees. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 5. Employers are also obligated to pay the county’s administrative costs. Id. Employers who can prove that the failure to pay the disputed wages was in good faith and that they had reasonable grounds for believing the non-payment was not illegal, can ask the hearing examiner to reduce or eliminate the liquidated damages award. See Ord. No. 2012-32, § 1, Chapter 20 ½ – 6.
Act Now to Avoid Claims
Employers with employees located in Broward County must act now to ensure their employment practices are in compliance with the new Broward County Ordinance. All employers should conduct an audit of their wage and hour practices and evaluate all timekeeping procedures to ensure they are accurately recording the hours their employees work and paying the employees for this work within a “reasonable time,” as defined by the new law. Additionally, employers with Broward County employees must post notice of the administrative claim created by this Ordinance in the location and form required under any applicable Administrative Rule.
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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.