An Update on St. Petersburg’s Wage Theft Notice and Posting Requirements and Recent Amendments to Pinellas County’s Wage Theft Ordinance

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In 2015, the City of St. Petersburg, Florida, approved an ordinance prohibiting wage theft in the city. The Wage Theft Ordinance (WTO) “aims to eliminate the underpayment or nonpayment of wages” by giving private employees within the city’s limits an administrative process for seeking back wages, liquidated damages, and costs and attorney’s fees. Pinellas County maintains a similar, though not identical, wage theft ordinance.

In 2016, the city amended its ordinance to include two notice and posting requirements for employers. First, at the time of hiring, employers are required to provide each employee with written notice. A notice template is available from the city, summarizing the protections and rights of employees under the WTO. Second, the employer must place in a location accessible to all employees a poster, available from the city, summarizing the protections and rights of employees under the ordinance. However, it is unclear whether these two amendments are in effect.

A provision of the amendments required that a “community-based organization” be selected to implement amendments. According to the amendments, the notice and poster provisions would not become applicable to employers until 90 days after a community-based organization had been selected for facilitating implementation of the ordinance. When asked directly, city representatives could not confirm whether an organization had been selected or implemented; however, they maintained that the notice and posting requirements of the ordinance were now in effect. City representatives stated that due to personnel and staffing constraints, administration and enforcement of the ordinance was handed off to the Pinellas County Office of Human Rights, and so all questions should be directed to the county.

The county also confirmed that it had taken over administration and enforcement of the city’s ordinance but again would not confirm whether a community-based organization had been selected or implemented. A county representative stated that a lack of resources restricted the county’s ability to actively monitor employers’ compliance with the notice and posting requirements.

With respect to the county’s wage theft ordinance, on January 28, 2020, the Pinellas County Board of County Commissioners passed amendments to the Wage Theft and Recovery Ordinance (WTRO). These amendments track the notice and posting requirements found in the city’s ordinance, but do not require the selection of a community-based organization for the amendments to take effect. The county has also provided forms and posters that it considers compliant with the amendments for employer use. A county representative clarified that nothing in the county ordinance should prohibit the city from acting to enforce its own ordinance. The ordinance states that under state law, the ordinance was effective 10 days after a certified copy of the ordinance was filed with the Department of State by the Clerk of the Board of County Commissioners. Thus, it appears the ordinance was effective Friday, February 7, 2020.

In relevant part, the county’s amendments provide:

For any Employer to fail to pay any portion of wages due to an Employee, according to the Wage Rate applicable to that Employee, within a reasonable time from the date on which that Employee performed the work for which those wages were compensation, shall be wage theft; and such a violation shall entitle an Employee, upon a finding by a special magistrate appointed by the County or by a court of competent jurisdiction that an Employer is found to have unlawfully failed to pay wages, to receive up to three times the amount of back wages.

(b) At the time of hiring, an employer shall provide to each employee a written notice, to be signed and dated by the employer and employee, containing the following information:

(1) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;

(2) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;

(3) The regular payday designated by the employer;

(4) The name of the employer, including any “doing business as” names used by the employer;

(5) The physical address of the employer’s main office or principal place of business, and a mailing address, if different; and

(6) The employer’s telephone number.

(c) An employer must retain, for a period of one year following an employee’s date of hire, a copy of the signed and dated written notice required by subsection (b).

(d) In addition to providing the written notice required by subsection (b), employers must place in a location accessible to all employees a poster or notice summarizing the protections and rights of employees pursuant to this article.

(e) An employer shall notify his or her employees in writing of any changes to the information set forth in the notice required by subsection (b) within seven calendar days after the time of the changes, and shall retain a copy of the signed notice for a period of one year following the date such change is signed by the employee.

(f) An employer’s failure to abide by and adhere to any part of this section constitutes a County ordinance violation, which may be enforced pursuant to the procedures in this article or in Sec. 1-8 of the Pinellas County Code.

(g) A Repeat Violation constitutes a separate County ordinance violation.

(h) Enforcement of a Repeat Violation under Sec. 1-8 of the Pinellas County Code by the County will not limit or affect the remedies otherwise available to, or the procedural obligations otherwise imposed on, an aggrieved Employee under this article.

Sec. 70-306. Wage Theft Violations (emphasis added). Sec. 1-8 of the Pinellas County Code provides for “a fine not to exceed $500.00” for each day of the violation.

According to this ordinance, where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. Accordingly, the WTRO requires a new notice each week in such an event.

Thus, while it is still unclear if St. Petersburg’s notice and posting requirements are effective, Pinellas County is taking the position that the county’s notice and posting mandates are required for any employer doing business within Pinellas County.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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