Florida has maintained a separate minimum wage requirement since the 2005 passage of the Florida Minimum Wage Act (“Act”), which was authorized by the Minimum Wage Amendment (“Amendment”) to Article X of the Florida Constitution.  Since then, courts have disagreed as to whether the Amendment provides the right to a separate cause of action to employees seeking unpaid minimum wages, distinct from the Act, and thus whether those seeking to recover under the Amendment itself must comply with the written  notice procedure set forth in the subsequent  Act.  A new decision holds that such pre-suit notice is required.  Nichols v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 26780 (M.D. Fla. Mar. 1, 2014).

The sole issue addressed by the Nichols court was whether, by suing directly under the constitutional Amendment, a plaintiff could circumvent the Act’s requirement that, prior to filing a suit, the employee write to his or her employer to “identify the minimum wage to which the person aggrieved claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice.”  The Act provides a 15-day window for the employer to make such payment in response to such a notice and avoid litigation.  Analyzing the enforcement scheme, Judge Sheri Polster Chappell concluded that “any person alleging a violation of [the Amendment] must do so through the lens of the [Act] because the Florida Constitution does not create an independent constitutional right to bring suit to recover unpaid minimum wages.”  Thus, the notice obligation must be satisfied before Plaintiff’s Florida minimum wage claims could be asserted in litigation.

“The notice requirement provides employers with a fair opportunity to address wage issues, without the attendant expense of litigation,” observed Jackson Lewis Jacksonville Shareholder Benjamin D. Sharkey.  “Judge Chappell rightly determined that allowing the Amendment itself to serve as an end-around frustrates the statutory intent behind the notice requirement.”

Employers in Florida, as in other states with a separate minimum wage requirement and enforcement scheme, must monitor state law developments and ensure compliance with both the FLSA (assuming overage under federal law) and applicable state law.