Judges of Compensation Claims Split on Proper Rate for Non-Professional Attendant Care
Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008). As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440.13(2)(b)1 that such care be compensated at "the federal minimum hourly wage" (emphasis added). See Tapia v. Prestressed Systems and Valdes v. Galco Construction.
JCC Lewis in Ft. Lauderdale disagrees. In Gilstrap v. Broward Correctional Institute, decided on 4/24/2008, he concludes that because the care-giver is not an employee of the employer/carrier, the "clear and unambiguous language of the statute" controls and that the care must be recompensed at the federal minimum wage. [Note: the federal minimum wage is set to increase to $6.55/hr. on 7/24/2008 and to $7.25/hr. on 7/24/2009. Florida's minimum wage increases each year on January 1, as determined by the Agency for Workforce Innovation].
