This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0943.LAV
DATE: 1/21/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 943 Preemption of Local Government Wage Mandates
SPONSOR(S): Harding
TIED BILLS: IDEN./SIM. BILLS: SB 1124
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration & Veterans Affairs
Subcommittee
Leshko Miller
2) Regulatory Reform Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
The Florida Constitution grants local governments broad home rule authority. However, some local
government authority may be preempted by the state, preventing local governments from exercising authority
in certain areas and requiring local ordinances be compliant with state statute or the state constitution. A local
government enactment may be found inconsistent with state law if (1) the Legislature has preempted a
particular subject area to the state or (2) the local regulation conflicts with a state statute.
In 2003, the Legislature preempted the establishment of minimum wage to the state. However, local
governments retained some authority to establish a minimum wage other than a state or federal minimum
wage or to provide employment benefits not otherwise required under state or federal law for a few categories
of employees. The law also contains an exception for situations where compliance with the law would prevent
a political subdivision from receiving federal funds. Additionally, political subdivisions are prohibited from
requiring an employer to provide employment benefits not required by state or federal law.
The bill provides a substantial revision to s. 218.077, F.S., in order to address local variations in minimum
wage mandates that impact economic stability and growth. The bill provides new definitions for the following
terms: “employ,” “employee,” “employer,” “political subdivision,” and “wage mandate.” The term “employer” now
explicitly includes “employers that have contracts or subcontracts with a political subdivision or that have
received tax abatements, loan guarantees, or other financial assistance from a political subdivision,” which
were previously a category of employers and employees that were exempt from state preemption of minimum
wage ordinances. “Wage mandate” is a new term added, defined as “any requirement enacted by a political
subdivision which requires an employer to pay any or all of its employees a wage rate not otherwise required
under state or federal law.”
The bill prohibits political subdivisions from enacting, maintaining, or enforcing any wage mandates in an
amount greater than the state minimum wage rate calculated pursuant to s. 24(c), art. X of the Florida
Constitution, and provides that any wage mandates in conflict with the state minimum wage are void.
The bill further provides an exception, allowing political subdivisions to enact, maintain, or enforce minimum
wage requirements or other benefits included in a collective bargaining agreement for employees of the
political subdivision. Additionally, there is an exception if federal law requires the payment of a prevailing
minimum wage to persons working on projects funded in whole or in part by federal funds.
The bill is not projected to have a fiscal impact. STORAGE NAME: h0943.LAV PAGE: 2
DATE: 1/21/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Home Rule
The Florida Constitution grants local governments broad home rule authority. Specifically, non-charter
county governments may exercise those powers of self-government that are provided by general law or
special law.
1
Counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by the electors.
2
Likewise, municipalities have
governmental, corporate, and proprietary powers that enable them to conduct municipal government,
perform municipal functions and provide services, and exercise any power for municipal purposes
except when expressly prohibited by law.
3
Preemption
State preemption precludes a local government from exercising authority in a particular area, and
requires consistency with the state constitution or state statute. A local government enactment may be
found inconsistent with state law if (1) the Legislature has preempted a particular subject area to the
state or (2) the local regulation conflicts with a state statute.
4
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.
5
Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.
6
Implied preemption is a legal doctrine that addresses situations in which the Legislature has not
expressly preempted an area but, for all intents and purposes, the area is dominated by the state.
Findings of implied preemption are for a very narrow class of areas in which the state has legislated
pervasively.
7
In cases determining the validity of ordinances enacted in the face of state preemption, such
ordinances are found null and void.
8
Local Wage Ordinances in Florida
1
Art. VIII, s. 1(f), Fla. Const.
2
Art. VIII, s. 1(g), Fla. Const.; See also s. 125.01, F.S.
3
Art VIII, s. 2(b); See also s. 166.021(1), F.S.
4
James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla.
B.J. 92 (June 2009), https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-
conflict-analysis/ (last visited Jan. 18, 2022).
5
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County,
894 So. 2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla.
2008).
6
Mulligan, 934 So. 2d at 1243.
7
Wolf and Bolinder, supra.
8
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002). STORAGE NAME: h0943.LAV PAGE: 3
DATE: 1/21/2022
In 2003, the Legislature preempted the establishment of minimum wages to the state.
9
However, a
political subdivision
10
retains the authority to establish a minimum wage other than a state or federal
minimum wage or to provide employment benefits not otherwise required under state or federal law for:
Its employees;
The employees of an employer contracting to provide goods or services for the political
subdivision, or the employees of a subcontractor of such an employer; or
The employees of an employer receiving a direct tax abatement or subsidy from the political
subdivision, as a condition of the direct tax abatement or subsidy.
11
The law also provides an exception for domestic violence or sexual abuse ordinances, orders, rules, or
policies adopted by a political subdivision.
12
The law contains an exception for situations where compliance with the law would prevent a political
subdivision from receiving federal funds. This allows compliance with the Davis-Bacon and related
acts,
13
which direct the Department of Labor to determine fair wages for contractors and subcontractors
working on public buildings and public works. Florida law only allows non-compliance with regard to
local minimum wage alterations to the extent necessary to allow receipt of federal funds.
14
Additionally, political subdivisions are prohibited from requiring an employer to provide employment
benefits
15
not required by state or federal law.
16
Effect of Proposed Changes
The bill substantially revises s. 218.077, F.S., in order to address local variations in minimum wage
mandates that impact economic stability and growth. The bill provides new definitions for the following
terms: “employ,” “employee,” “employer,” “political subdivision,” and “wage mandate.” The term
“employer” now explicitly includes “employers that have contracts or subcontracts with a political
subdivision or that have received tax abatements, loan guarantees, or other financial assistance from a
political subdivision,” which were previously a category of employers and employees that were exempt
from state preemption of minimum wage ordinances. “Wage mandate” is a new term added, defined as
“any requirement enacted by a political subdivision which requires an employer to pay any or all of its
employees a wage rate not otherwise required under state or federal law.”
The bill prohibits political subdivisions from enacting, maintaining, or enforcing any wage mandates in
an amount greater than the state minimum wage rate calculated pursuant to s. 24(c), art. X of the
Florida Constitution, and provides that any wage mandates in conflict with the state minimum wage are
void.
The bill further provides an exception allowing political subdivisions to enact, maintain, or enforce
minimum wage requirements or other benefits included in a collective bargaining agreement for
employees of the political subdivision. Additionally, there is an exception if federal law requires the
payment of a prevailing minimum wage to persons working on projects funded in whole or in part by
federal funds.
9
S. 218.077(2), F.S.
10
Defined as a county, municipality, department, commission, district, board, or other public body, whether corporate or
otherwise, created by or under state law. S. 218.077(1)(f), F.S.
11
S. 218.077(3)(a), F.S.
12
S. 218.077(3)(b), F.S.
13
See, e.g., 40 U.S.C. 3141 et seq.
14
S. 218.077(4), F.S.
15
Defined as anything of value that an employee may receive from an employer in addition to wages and salary. The term
includes, but is not limited to, health benefits; disability benefits; death benefits; group accidental death and
dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement
benefits; and profit-sharing benefits. S. 218.077(1)(d), F.S.
16
S. 218.077(2), F.S.; However, federally authorized and recognized tribal governments are not prohibited from requiring
employment benefits for a person employed within a territory over which the tribe has jurisdiction. S. 218.077(5), F.S. STORAGE NAME: h0943.LAV PAGE: 4
DATE: 1/21/2022
B. SECTION DIRECTORY:
Section 1: Substantially rewords s. 218.077, F.S., providing new definitions, further preempting
minimum wage ordinances and requirements for employment benefits, and providing
exceptions to the law.
Section 2: Provides an effective date of upon becoming law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will no longer allow political subdivisions to establish a minimum wage other than a state or
federal minimum wage or to require employment benefits not otherwise required under state or federal
law from private employers that have contracts or subcontracts with a political subdivision or that have
received tax abatements, loan guarantees, or other financial assistance from a political subdivision.
This change may lower operating costs for these private employers.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither provides authority for nor requires rulemaking by executive branch agencies.
STORAGE NAME: h0943.LAV PAGE: 5
DATE: 1/21/2022
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES