Federal or Florida Minimum Wage for Non-Professional Attendant Care?
Does the new minimum wage amendment to the Florida Constitution supersede the statutory requirement of the Florida Workers' Compensation Act that non-professional attendant care be compensated at the federal minimum wage rate? Yes, say at least two judges of compensation claims.
Section 440.13(2)(b)1, Fla. Stat. (2006), clearly says that non-professional attendant care provided by an injured worker's family members shall be compensated at the federal minimum wage rate, assuming that the family member is either (1) unemployed or (2) providing the attendant care during his non-working hours. Currently, the federal minimum wage stands at $5.15 per hour.
Effective 5/2/2005, however, the citizens of Florida adopted an amendment to the state constitution, Article X, Section 24, which requires the minimum wage for all Florida employees to be $6.15 per hour. The question, then, is whether family members providing non-professional attendant care are to be paid at the Florida or federal minimum wage.
In Tapia v. Prestressed Systems (11/10/2005) and Valdes v. Galco Construction (4/3/2007), two judges of compensation claims said that the new Florida rate applies. The First District affirmed Tapia, but without opinion, so the affirmance has no precedential value. (Actually, the appeal in Tapia was initiated by the claimant regarding some other issues, and the E/C did not challenge the JCC's order on the minimum wage issue by way of cross-appeal). And no appeal was taken from the Valdes order. There may be other cases on this issue in the pipeline, but I'm not aware of them at this point.
On 5/25/2007, however, President Bush signed into law the Fair Minimum Wage Act of 2007. That Act amends the Fair Labor Standards Act of 1938 (29 U.S.C. s.206) to increase the federal minimum wage from the current $5.15 per hour to $5.85 per hour on 7/24/2007, to $6.55 per hour on 7/24/2008, and to $7.25 per hour on 7/24/2009. To add to the confusion, Article X, Section 24(c) of the Florida Constitution (implemented by s.448.110, Fla. Stat.) requires that the Florida minimum wage be adjusted for inflation every year on September 30. The Florida the minimum wage was $6.40 per hour for wages earned in 2006; $6.67 per hour for wages earned in 2007.
Therefore, assuming that the greater of the Florida or federal minimum wage rates should be paid, the hourly rates for non-professional attendant care would be:
| 5/2/2005 | 1/1/2006 | 1/1/2007 | 1/1/2008 | 1/1/2009 | 7/24/2009 |
| $6.15 | $6.40 | $6.67 | ? | ? | $7.25 |
The Florida minimum wage is already greater than the federal minimum wage increases scheduled to go into effect on 7/24/2007 and on 7/24/2008. And we don't yet know what increases there will be to the Florida wage for 2008 and 2009, so it might very well be the case that the Florida wage will be greater than the federal increase scheduled for 7/24/2009.
