The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Community Affairs
BILL: CS/SB 1124
INTRODUCER: Community Affairs Committee and Senator Gruters
SUBJECT: Preemption of Local Government Wage Mandates
DATE: February 3, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Fav/CS
2. CM
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1124 creates the “Wage Mandate Preemption Act,” amending s. 218.077, F.S., which is
the state’s preemption of local variations in minimum wage mandates. The bill amends the
current preemption to prohibit political subdivisions from enacting, maintaining, or enforcing, by
any means, a “wage mandate” in an amount greater than the state or the federal minimum wage
rate, with some exceptions. “Wage mandate” is 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 provides that any wage mandate in conflict
with the state or federal minimum wage rate is void.
The bill further removes the existing statutory authority for political subdivisions to enact a wage
mandate for employers, including subcontractors, who contract to provide goods or services to a
political subdivision.
The bill takes effect upon becoming a law.
II. Present Situation:
Federal and State Minimum Wage Laws
In 1938, the United States Congress enacted the federal Fair Labor Standards Act (29 U.S.C.
REVISED: BILL: CS/SB 1124 Page 2
ss. 201, et seq.), establishing an initial federal minimum wage of $0.25 per hour. The minimum
wage for all covered, nonexempt employees has remained at $7.25 per hour since 2009.
1
The Act
includes several exemptions from the federal minimum hourly wage, including:
2
Executive, administrative and professional employees (including teachers and academic
administrative personnel in elementary and secondary schools), outside sales employees, and
employees in certain computer-related occupations;
Employees in certain seasonal amusement or recreational establishments, employees in
certain small newspapers, seamen employed on foreign vessels, employees engaged in
fishing operations, and employees engaged in newspaper delivery;
Farm workers employed by anyone who used no more than 500 “man-days” of farm labor in
any calendar quarter of the preceding calendar year; and
Causal babysitters and persons employed as companions for the elderly or infirm.
Employers also must pay tipped employees (e.g., servers in restaurants) who customarily and
regularly receive more than $30 per month in tips the federal minimum wage of $7.25 per hour.
The employer may account for tips received by a tipped employee as part of the wage rate, but
must also pay the employee a base wage of at least $2.13 per hour.
3
The Wage and Hour Division of the United States Department of Labor enforces the federal Fair
Labor Standards Act, including the federal minimum wage.
According to the United States Department of Labor, five states do not have an established
minimum wage requirement: Alabama, Louisiana, Mississippi, South Carolina and Tennessee.
Twenty seven states, Puerto Rico, and the District of Columbia have minimum wage rates higher
than the federal rate:
4
Alaska ($10.34)
Arizona ($12.80)
California ($14.00)
Colorado ($12.56)
Connecticut ($13.00)
Florida ($10.00)
Illinois ($12.00)
Maine ($12.75)
Maryland ($12.50)
Massachusetts ($14.25)
Michigan ($9.87)
Minnesota ($10.33)
1
U.S. Department of Labor, Minimum Wage, available at https://www.dol.gov/general/topic/wages/minimumwage (last
visited Jan. 19, 2022)
2
U.S. Department of Labor, Fair Labor Standards Act Advisor available at:
https://webapps.dol.gov/elaws/whd/flsa/screen75.asp (last visited Jan. 19, 2022)
3
U.S. Department of Labor, Tipped Employees, available at https://www.dol.gov/agencies/whd/compliance-
assistance/handy-reference-guide-flsa#1 (last visited Jan. 19, 2022)
4
U.S. Department of Labor, State Minimum Wage Laws, available at https://www.dol.gov/agencies/whd/minimum-
wage/state (last visited Jan. 19, 2022) BILL: CS/SB 1124 Page 3
Missouri ($11.15)
Montana ($9.20)
Nebraska ($9.00)
Nevada ($9.75)
New Mexico ($11.50)
New Jersey ($13.00)
New York ($13.20)
Ohio ($9.30)
Oregon ($12.75)
Rhode Island ($12.25)
South Dakota ($9.95)
Vermont ($12.55)
Virginia ($11.00)
Washington ($14.49)
West Virginia ($8.75)
Georgia and Wyoming have minimum wage rates lower than the federal minimum wage. If an
employee is subject to both a state and federal minimum wage law, the employee is entitled to
the higher of the two minimum wages.
The Florida Minimum Wage Act
Under the State Constitution, all working Floridians are entitled to be paid a minimum wage that
is sufficient to provide a decent and healthy life for them and their families, that protects their
employers from unfair low-wage competition, and that does not force them to rely on taxpayer-
funded public services in order to avoid economic hardship.
5
The amount of the minimum wage
and the procedure for calculating increases in the minimum wage are established in the State
Constitution.
6
The State Constitution first provided for a minimum wage at an hourly rate of
$6.15, which became effective on May 2, 2005.
7
On November 3, 2020, Florida voters approved Amendment 2, which amended the State
Constitution to gradually increase the state’s minimum wage to $15.00 an hour by the year
2026.
8
Pursuant to the passage of Amendment 2, on September 30, 2021, Florida’s minimum
wage increased to $10.00 per hour. Each year, thereafter, Florida’s minimum wage will increase
by $1.00 until the minimum wage reaches $15.00 per hour on September 30, 2026.
9
Beginning in
2027, the minimum wage will be adjusted annually for inflation, as it has been since 2005.
5
FLA. CONST. art. X, s. 24(a).
6
FLA. CONST. art. X, s. 24(c).
7
The Department of Economic Opportunity annually calculates an adjusted state minimum wage rate by increasing the state
minimum wage by the rate of inflation for the 12 months prior to September 1. Each adjusted state minimum wage rate takes
effect on the following January 1.
8
United States Department of State, Notice of Increase to State of Florida’s Minimum Wage, available at
https://www.state.gov/wp-content/uploads/2021/01/2021-01-29-Notice-FL-Minimum-Wage-Increase.pdf (last visited Jan.
23, 2022.
9
Department of Economic Opportunity, Florida’s Minimum Wage, available at https://floridajobs.org/docs/default-
source/business-growth-and-partnerships/for-employers/posters-and-required-notices/2021-minimum-wage/september-
2021/florida-minimum-wage-september-2021-announcement.pdf?sfvrsn=c12151b0_4 (last visited Jan. 19, 2022) BILL: CS/SB 1124 Page 4
The constitutional provision has been implemented by the Florida Minimum Wage Act.
10
The
statute establishes procedures with respect to civil actions alleging violations of its provisions.
The Florida minimum wage provisions may be enforced by the bringing of a civil suit by an
aggrieved person
11
or by the Attorney General.
12
Power of Local Governments to Enact Minimum Wage Ordinances
Home Rule Power
The State Constitution grants local governments broad authority to take actions furthering
citizens’ health, welfare, safety, and quality of life. This “home rule” authority includes
legislative powers to enact local laws. Specifically, non-charter county governments may
exercise those powers of self-government that are provided by general or special law.
13
Those
counties operating under a county charter have all powers of local self-government not
inconsistent with general law or special law approved by the vote of the electors.
14
Likewise,
municipalities have those governmental, corporate, and proprietary powers that enable them to
conduct municipal government, perform their functions and provide municipal services, and
exercise any power for municipal purposes, except as otherwise provided by law.
15
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.
16
Florida law recognizes two types of preemption: express and implied. Express preemption
requires a specific legislative statement; it cannot be implied or inferred.
17
Express preemption of
a field by the Legislature must be accomplished by clear language stating that intent.
18
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.
19
10
Section 448.110, F.S.
11
Section 448.110(6), F.S.
12
Section 448.110(7), F.S.
13
FLA. CONST. art. VIII, s. 1(f).
14
FLA. CONST. art. VIII, s. 1(g).
15
FLA. CONST. art. VIII, s. 2(b). See also s. 166.021(1), F.S.
16
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).
17
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).
18
Mulligan, 934 So. 2d at 1243.
19
Wolf and Bolinder, supra. BILL: CS/SB 1124 Page 5
In cases determining the validity of ordinances enacted in the face of state preemption, such
ordinances are found null and void.
20
Statutory Restriction of Minimum Wage Requirements
In 2003, the Legislature preempted the establishment of minimum wages to the state.
21
However,
a political subdivision
22
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.
23
The law also provides an exception for domestic violence or sexual abuse ordinances, orders,
rules, or policies adopted by a political subdivision.
24
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,
25
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.
26
Additionally, political subdivisions are prohibited from requiring an employer to provide
employment benefits
27
not required by state or federal law.
28
III. Effect of Proposed Changes:
The bill amends s. 218.077, F.S., addressing preemption of local variations in minimum wage
mandates. The bill renames the section the “Wage Mandate Preemption Act.” The bill provides
new definitions, including the term “wage mandate” which is defined as “any requirement
20
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
21
S. 218.077(2), F.S.
22
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.
23
Section 218.077(3)(a), F.S.
24
Section 218.077(3)(b), F.S.
25
See, e.g., 40 U.S.C. 3141 et seq.
26
Section 218.077(4), F.S.
27
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.
28
Section 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. BILL: CS/SB 1124 Page 6
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 by any means a
wage mandate in an amount greater than the state minimum wage rate, calculated pursuant to s.
24(c), art. X of the Florida Constitution, or the federal minimum wage rate. The bill provides that
any wage mandates in conflict with the state or federal minimum wage are void.
The bill further removes the existing statutory authority for political subdivisions to enact a wage
mandate for employers, including subcontractors, who contract to provide goods or services to a
political subdivision. Current law is maintained to allow a political subdivision to enact a wage
mandate for employees of a political subdivision and for employers receiving a tax abatement or
subsidy from a political subdivision.
The bill clarifies that the language does not limit, restrict, or expand a prevailing wage required
under state law.
The bill takes effect upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None. BILL: CS/SB 1124 Page 7
B. Private Sector Impact:
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 for private employers that have contracts or
subcontracts with a political subdivision. This change may lower operating costs for these
private employers.
In certain circumstances, employees of such contractors may see a reduction in wages if
said wages are tied to a local ordinance requiring the contractor or subcontractor to pay
their employers a wage that exceeds the state or federal minimum wage.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 218.077 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Community Affairs on February 2, 2022:
The CS amends rather than substantially rewrites s. 218.077, F.S. The CS removes the
legislative findings provided in the bill and preserves current law allowing a political
subdivision to enact a wage mandate for employees of an employer receiving a direct tax
abatement or subsidy from a political subdivision.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.