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St. Thomas Law Review

First Page

197

Document Type

Article

Abstract

Although litigation has yet to erupt in this arena, the 2005 Minimum Wage Amendment to the Florida Constitution laid the groundwork for what may soon become a hotbed of litigation. Specifically, the Minimum Wage Amendment ("Amendment") set a minimum wage above the federal standard and created a civil cause of action and specifically allowed the Florida legislature or Agency for Workforce Innovation to "adopt any measures appropriate for the implementation of this amendment." The result has led to little litigation to date, but the two initial cases examining the implementing legislation - Throw v. Republic Enter. Sys., Inc. and Resnick v. Oppenheimer & Co., Inc. - indicate the battles ahead will be hotly contested and may continue to lead to divergent results in the court systems. Enacted by the Florida legislature, the Florida Minimum Wage Act was the first implementing legislation created pursuant to the Amendment's power. One of the most significant provisions requires a prospective plaintiff to notify his or her employer in writing of the alleged failure to comply with the statute. The statute then grants the employer calendar days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the" prospective plaintiff. The ability to bring a claim directly under the Amendment and the enforceability of these statutory provisions were subsequently challenged. The first two Florida federal district courts to publish opinions regarding the enforceability of this notice provision as a precondition to filing suit directly expressly disagreed with each other, and subsequent cases have shown continued discord. As a result, employers and employment lawyers should expect a rise in litigation in this area in the near future, at least until answers to these major questions are settled.

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