Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

The federal minimum wage is set to increase to from $5.85 per hour to $6.55 per hour on July 24.  That means the compensation for non-professional attendant care rendered  by family members and necessitated by an on-the-job accident in Florida will also increase because that compensation is pegged to the federal minimum wage.  See §440.13(2)(b)1, Fla. Stat.

 

As I wrote here, two judges of compensation claims have held that this statute has been superseded by the enactment of Florida's own minimum wage law.  The state minimum wage is currently set at $6.79 per hour (effective 1/1/2008) with another increase scheduled to go into effect on 1/1/2009.

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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].

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The federal minimum wage increases today from $5.15 per hour to $5.85 per hour.  That means that compensation for non-professional attendant care also increases because it is tied to the federal minimum wage by s.440.13(2)(b)1, Fla. Stat.  Or, as I wrote about here, if you believe that s.440.13(2)(b)1 has been superseded by the 2005 amendment to the Florida Constitution (Article X, s.24) which mandates a higher minimum wage in Florida, then the compensation rate for non-professional attendant care currently stands at $6.67 per hour.

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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.   

 

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