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Friday, January 11, 2013

Broward Joins Miami-Dade In Protecting Employees Against Wage Theft

Miami-Dade County's wage theft ordinance has been in effect since 2010. It was the first such ordinance in the nation. This month, Broward County finally joins them in the fight against unscrupulous employers who steal employee wages. Alachua County is currently considering a similar ordinance.

The sad fact is that most states let employers get away with allowing people to work, then failing to pay them. Why businesses tend to fight these laws like cornered rats is beyond me. Isn't using free labor the very definition of an unfair trade practice? How can legitimate employers fairly compete with unscrupulous companies who use slave labor?

Not that the Miami-Dade wage theft system is perfect. I wrote previously about some problems we had with hearings. We have one case we won months ago, yet haven't received our judgment. Several other cases have languished for months without being set for hearing. Still, it's probably better than trying to file a lawsuit in a system that's glutted with foreclosures.

Rant over. There are some key differences between the two ordinances. Here's the scoop:

Wages due date: Both counties now make wages due within 14 days after services were performed unless the employer has established a consistent pay schedule that is different.

Demand letter: Broward County requires a demand letter within 60 days of the date the wages were due giving the amount of wages due, the actual or estimated work dates and hours, and notifying the employer the wages are past due. Dade has no such requirement.

Deadline for claim: Both counties have deadlines of one year from the last date the employee performed work for the employer that wasn't paid.

Supporting documentation: Dade's ordinance requires all supporting documentation to be attached to the complaint. Broward's just requires the complainant to set forth the facts with sufficient specificity to allow the respondent and the County to understand the basis for the claim.

Service of complaint: Dade serves the complaint by certified mail. Broward will apparently use the Sheriff or a process server.

Hearing notice: Dade's ordinance says notices are served by certified mail, which is a real problem. By the time of the hearing, the receipts don't arrive and the employees waste a day they had to take off from work before they find out the hearing is canceled. Dade also says that Fla. R. Civ. P. 1.080 can be used for service. That rule used to say service was by snail mail, but now it's by email. Yet Dade doesn't use that method, instead making taxpayers incur the expense of additional certified mail costs. Broward's refers to the Florida Rules of Civil Procedure for service without specifying which rule. Presumably, regular first class mail, or even better, email, will be used for notices once the employer is properly served with the complaint.

Answer: Answers are due in both counties within 20 days after service of the complaint.

Hearing officer appointed: In Dade, a hearing is supposed to be appointed within 15 days after the complaint is served. In Broward, it's 30 days. Neither county has a deadline by which the hearing must be conducted. That's a giant flaw.

Conciliation: Both ordinances encourage the parties to reach an agreement and say the counties will work to help resolve the dispute. The reality in Dade has been, so far, that conciliation pretty much concists of, "Hello, employer. Do you want to pay these wages? No? Ok." Hopefully a more formal mediation program will be set up to try to get the parties to settle more quickly and reduce backlog.

Lawsuit: Both counties prohibit aggrieved employees from suing for their wages. If they do, the counties will dismiss their wage theft complaints. That just sucks, especially where the wage theft program is so bogged down.

Damages: In Dade, it's three times the amount of wages stolen. In Broward, it's twice the amount.

Attorney's fees
: In Dade, employees cannot recover their attorney's fees incurred. In Broward, they can. However, Broward also has a provision that employees bringing frivolous claims will have to pay administrative fees and the attorney's fees and costs of the employer.

Employee defined: An employee in both counties is anyone who performs work within the geographic boundaries of the county while being employed by an employer. It doesn't include bona fide independent contractors, but most people classified as contractors are misclassified and should be considered employees.

Employer defined: Both counties exclude the U.S. government, the State of Florida, and any Indian Tribe. Dade excludes itself, but Broward doesn't.

Hopefully, Broward will learn from Dade's mistakes and administrate their program a little better. Dade still needs more resources and a more efficient system in order to have their program become a model for the nation.

Congratulations to both Miami-Dade and Broward for having the guts to stand up to thieving employers!












5 comments:

  1. I meant to comment on this earlier, but I read it on my Kindle and it's hard to write on that. Anyway, I still do not understand why wage theft isn't treated as regular theft. Seriously. I am far more pro-employer than you are, but, this makes no sense to me.

    If I take your iPod out of your bag, that's theft. Why is taking your whole paycheck not theft?

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    1. Exactly Suzanne! I would like to see these criminals thrown in jail. Instead, they make their yacht payment with employees' hard-earned wages, leaving taxpayers to pay for employees' needs. It's bad for everyone (except the thief).

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    2. Do these statutes also apply to contractual bonuses and salaried employees?

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    3. Yes, ClickBrain. They apply to all wages earned.

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  2. This comment has been removed by a blog administrator.

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