§ 22-4. Procedures for wage theft complaints.

(1)

Filing wage theft complaints.

(a)

Jurisdictional threshold amount and jurisdictional limit. In order for a complaint to be submitted to and not summarily dismissed by the County by, or on behalf of, an aggrieved employee, that employee must allege a wage theft violation in which the unpaid wages are equal to no less than the jurisdictional threshold amount and no greater than the jurisdictional limit.

(b)

Either of the following may file a written, signed complaint with the County using the procedures set forth in an Implementing Order:

(i)

An employee aggrieved by a wage theft action prohibited by this article; or

(ii)

Any entity a member of which is aggrieved by a violation of this article.

(c)

A signed complaint for wage theft must be filed with the County in the manner prescribed by Implementing Order no later than one (1) year after the last date upon which the complainant employee performed the work for a respondent employer with regard to which the employee alleges a violation of this article has occurred ("filing deadline"); however, with respect to alleged ongoing violations, once a complaint has been made in compliance with the filing deadline, the County's enforcement capacity is limited only by the applicable statute(s) of limitations.

(d)

The complaint shall set forth the facts upon which it is based with sufficient specificity to identify the respondent or respondents and for the County to determine both that an allegation of wage theft has been made and that the threshold amount has been met.

(2)

Respondent.

(a)

Upon the filing of any complaint, the County shall promptly determine that the wage theft complaint alleges wage theft, names at least one respondent and meets the jurisdictional threshold amount and does not exceed the jurisdictional limit. Any wage theft complaint that is submitted that does not meet the requirements of section 22-4, including a failure to meet the jurisdictional threshold amount or exceeding the jurisdictional limit, shall be dismissed by appropriate County staff by providing written notice of such dismissal to the complainant. A complainant may appeal a dismissal to a Hearing Examiner by submitting a written notice of appeal of such dismissal to the County within 20 days of the date of the County's written dismissal. If timely requested, a Hearing Examiner shall be assigned who shall only consider written submissions to evaluate whether the dismissal was an abuse of discretion.

(b)

Upon making such determination that the complaint meets the requirements of section 22-4 and is not subject to dismissal, or if such dismissal is overturned by a Hearing Examiner, the County shall serve the complaint and a written notice on the respondent or person charged with the commission of a wage theft practice, setting forth the allegations, rights and obligations of the parties including, but not limited to, the right to a due process hearing on the matter before a Hearing Examiner and that the respondent may be responsible for the costs of the Hearing Examiner and other enforcement costs. Such service shall be by certified mail.

(c)

Each respondent shall file an answer to the complaint with the County not later than twenty (20) days after receipt of the complaint and notice from the Director.

(3)

Subpoenas.

(a)

If a Hearing Examiner is appointed, any party may request that a subpoena be issued by the Hearing Examiner. Witnesses summoned by subpoena of the Hearing Examiner shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the County Court of Miami-Dade County, Florida. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by the party.

(b)

Within ten (10) days after service of a subpoena upon any person, such person may petition the Hearing Examiner to revoke or modify the subpoena. The Hearing Examiner shall grant the petition if it finds that the subpoena requires appearance or attendance at an unreasonable time or place, that it requires production of evidence which does not relate to the matter, that it does not describe with sufficient particularity the evidence to be produced, that compliance would be unduly onerous, or for other good reason.

(c)

In the case of the contumacy or refusal to obey a subpoena, the Hearing Examiner or any party may seek enforcement of a subpoena issued under the authority of this chapter by filing a petition for enforcement in the County Court of Miami-Dade County, Florida.

(d)

In any enforcement proceedings authorized by this chapter, the court may award to the prevailing party all or part of the costs and Attorney's fees incurred in obtaining the court order as authorized by the Florida Rules of Civil Procedures.

(e)

Any person who willfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if in his or her power to do so, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(f)

Any person who, makes or causes to be made any false entry or false statement of fact in any report, account, record or other document submitted to the Hearing Examiner pursuant to its subpoena or other order, or shall willfully mutilate, alter or by any other means falsify any documentary evidence, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(4)

Applicability of Florida Rules of Civil Procedure.

(a)

The provisions of Rule 1.090, Florida Rules of Civil Procedure, shall govern the computation of any period of time prescribed or allowed by this chapter or by rules, regulations, or orders adopted pursuant to this chapter.

(b)

All papers or pleadings required by this chapter to be served may be served by certified mail or in accordance with Rule 1.080, Florida Rules of Civil Procedure.

(5)

Standards for Resolving Factual Disputes.

(a)

Adequate Records. When the following three conditions are met:

(i)

Where by operation of some other statute or regulation, a respondent employer has an obligation to keep records of an employee's hours worked and/or records of compensation provided to an employee; and

(ii)

Where such records are imprecise, inadequate or do not exist; and

(iii)

Where a complainant employee presents sufficient evidence to show, as a matter of just and reasonable inference, the amount of work done or the extent of work done or what compensation is due for the work done;

(b)

Then the burden of imprecision falls on the respondent whose obligation it was to keep accurate records and the respondent must come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the complainant's evidence; if the respondent fails to meet this burden, the Hearing Examiner or any court, whichever is applicable, may award approximate damages based on the complainant's evidence.

(6)

Conciliation.

(a)

It is the policy of the County to encourage conciliation of charges. The County will work with the parties in an attempt to conciliate the agreement. If possible, a written conciliation agreement resolving the dispute between the complainant and the respondent shall be executed prior to the referral of the matter to a Hearing Examiner.

(b)

A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant.

(c)

Whenever a party believes that the other party has breached a conciliation agreement, the aggrieved party may file a civil action in a court of competent jurisdiction for enforcement of such agreement.

(d)

Nothing said or done in the course of attempting conciliation under this chapter may be used as evidence in any subsequent proceeding under this chapter or otherwise without the written consent of the parties to the underlying charge of violation.

(7)

Hearing before Hearing Examiner.

(a)

Within fifteen (15) days after the service of the Complaint on the respondent, and after determination that the complaint meets the jurisdictional threshold amount and does not exceed the jurisdictional limit and meets the other requirements of section 22-4, any party may submit a written request for a hearing before a Hearing Examiner. The County shall appoint a Hearing Examiner that it deems to be qualified to hear wage theft matters. In conducting any hearing to determine whether a violation of this chapter has occurred, the Hearing Examiner shall have the authority to administer oaths, issue subpoenas, compel the production of and receive evidence. The Hearing Examiner shall have the authority to consolidate two or more complaints into a single hearing where such complaints name the same respondent(s) and involve sufficiently similar allegations of fact to justify consolidation. The final determination of the Hearing Examiner in wage theft matters is subject to appeal in a court of competent jurisdiction.

(b)

In any hearing before the Hearing Examiner pursuant to this section, the respondent may file a written answer to the complaint. All parties shall appear at the hearing in person, with or without counsel, and may submit evidence, cross-examine witnesses, obtain issuance of subpoenas and otherwise be heard. Testimony taken at the hearing shall be under oath and a transcript shall be made available at cost to any interested party.

(c)

Discovery shall be permitted upon motion of any party and shall proceed in the manner provided by the Florida Rules of Civil Procedure.

(d)

The Hearing Examiner may direct that the parties submit a pre-hearing statement addressing the issues of law and fact that will be involved in such hearing, identify the witnesses that will testify, and provide a list of all documents or other types of exhibits that will be submitted.

(e)

Upon the conclusion of the hearing, an adjudicative final order shall be issued and served upon the parties setting forth written findings of fact and conclusions of law.

(f)

In any proceeding under this article, the burden of proof by a preponderance of the evidence rests upon the complainant.

(8)

Representation by Non-lawyer Advocate. Any person may be represented by counsel in any proceeding herein. Any party, including corporate entities, as an alternative to counsel, may be represented by a non-lawyer advocate authorized by that party in any proceeding herein unless specifically disallowed by the Hearing Examiner for good cause.

(9)

Enforcement by private persons or by the State of Florida.

(a)

Enforcement by private persons.

(i)

This chapter does not, and was never intended to, create a private right of action for enforcement of this chapter in court provided, however, that final orders are enforceable as judgments in court. To the extent there may be available remedies under state or federal laws to complainants under this chapter that may provide relief under state or federal law in courts or other administrative proceedings, it is not in the public interest to also provide the administrative procedures and remedies available under this chapter if during the pendency of a wage theft complaint a complainant employee initiates or seeks available administrative or court remedies under state or federal law. Accordingly, if during the pendency of a wage theft violation complaint but prior to the issuance of a final decision by a Hearing Examiner, a complainant employee brings a private action in their own right, whether under state law, federal law, or both, in any state or federal court to seek unpaid wages based upon the same facts and allegations as the complainant employee's complaint to the County under this chapter, or affirmatively or by consent opts to participate in any such litigation, that complainant employee's complaint of wage theft shall be deemed withdrawn with respect to any respondent employer named as a defendant in such court action. This section shall be interpreted narrowly so as to leave unaffected any cumulative rights which were not the subject of a complainant employee's complaint.

(ii)

The County, upon becoming aware of any private action described herein shall advise the complainant and any respondent subject to the private action in writing within fifteen (15) days of this provision and its effect on the complaint. Within thirty (30) days of the issuance of such notice, the County will dismiss, with prejudice, the complainant's complaint only with respect to the respondent or respondents who are named as a defendant to the private action.

(b)

Enforcement by the State of Florida. If at any time during the pendency of a complaint of wage theft, the County becomes aware of an enforcement action by the Florida Attorney General or other body of the State of Florida based on wage violations involving the same facts as the complainant employee's complaint to the County, the County will dismiss, either with or without prejudice, the complainant employee's complaint with respect to the respondent or respondents named in such State enforcement action. The County shall advise the complainant and any respondent of such dismissal.

(Ord. No. 10-16, § 1, 2-18-10; Ord. No. 17-71, § 2, 10-3-17)