§ 15-43. Procedures for wage theft complaints.

(a)

Filing wage theft complaints.

(1)

The employee must file a written, signed complaint with the City Clerk. Any person or entity may assist the employee in filing his or her complaint.

(2)

The POD will only process a complaint alleging a wage theft violation in which the unpaid wages are equal to no less than the threshold amount.

(3)

A signed complaint for wage theft must be filed with the City Clerk no later than one calendar year after the date wages were due to be paid for work performed for a respondent employer. If the alleged wage theft violation is ongoing at the time of the filing of the complaint, the complaint may also seek recovery of amounts that accrue after the filing of the complaint.

(4)

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

(b)

Respondent employer.

(1)

Upon the filing of any complaint, the POD shall promptly determine whether the complaint alleges wage theft, names at least one respondent employer and meets the threshold amount. The duty of the City to determine whether a complaint meets these criteria is limited to receiving the complaint and comparing the information provided in the complaint to the required criteria. This determination is a ministerial act and may not be based on further investigation or the exercise of independent judgment.

(2)

Upon making such determination, the POD shall serve the complaint and a written notice on the respondent employer, 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 officer and that the respondent employer may be responsible for the costs of the hearing officer and other enforcement costs. Such service shall be by mail and is presumed served upon mailing unless all mail is returned.

(3)

Each respondent employer shall file an answer to the complaint with the POD at the address specified in the notice not later than 21 days after service of the complaint and notice from the City. The POD may grant one extension, not to exceed 30 days, for good cause. If no extension is granted by the POD and the POD does not receive an answer to the complaint, the POD will proceed with the conciliation process. If the respondent employer pays the employee the underpayment before the conciliation process has commenced, the complaint will be dismissed upon verified proof of payment and acknowledgement by the employee.

(c)

Conciliation.

(1)

It is the policy of the City to encourage conciliation of complaints. After the complaint is filed, the POD will coordinate a conciliation process to attempt to resolve the complaint by agreement of both parties. If possible, a written conciliation agreement resolving the dispute between the complainant employee and the respondent employer shall be executed in lieu of referral of the matter to a hearing officer.

(2)

A conciliation agreement arising out of such conciliation shall be a written agreement between the respondent employer and the complainant employee.

(3)

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.

(4)

If conciliation fails, nothing said in the course of attempting conciliation under this article may be used as evidence in any subsequent proceeding under this article or otherwise without the written consent of the parties.

(5)

If the POD determines that the conciliation process has been refused or has reached impasse, the POD will notify the parties and schedule a hearing before the hearing officer.

(d)

Hearing before hearing officer.

(1)

Within 15 days after the POD gives notice that the conciliation process has been refused or has reached impasse, any party may submit a written request for a hearing before a hearing officer.

(2)

In conducting any hearing to determine whether a violation of this article has occurred, the hearing officer shall have the authority to administer oaths, issue subpoenas, compel the production of evidence and receive evidence. The hearing officer shall have the authority to consolidate two or more complaints into a single hearing where such complaints name the same respondent employer(s) and involve sufficiently similar allegations of fact to justify consolidation. The final determination of the hearing officer in wage theft matters is subject to appeal in a court of competent jurisdiction.

(3)

Pre-hearing matters.

a.

If a hearing officer is appointed, any party may request that a subpoena be issued by the hearing officer. Witnesses summoned by subpoena of the hearing officer shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the County Court of Pinellas County, Florida. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by the party at the time the subpoena is requested.

b.

Within ten days after service of a subpoena upon any person, such person may petition the hearing officer to revoke or modify the subpoena. The hearing officer 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 refusal to obey a subpoena, the hearing officer or any party may seek enforcement of a subpoena issued under the authority of this article by filing a petition for enforcement in the County Court of Pinellas County, Florida.

d.

In any enforcement proceedings authorized by this article, the court shall award to the prevailing party all or part of the costs and attorney's fees incurred in obtaining the court order, to the extent such award is authorized by the Florida Rules of Civil Procedure.

e.

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

f.

The hearing officer 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.

g.

The hearing officer may rule on a motion to dismiss the complaint for failure to state a cause of action under this article.

h.

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

i.

In any hearing before the hearing officer pursuant to this section, the respondent employer 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, and otherwise be heard. Testimony taken at the hearing shall be under oath and either party may pay the cost to have a transcript made. The City may, at its discretion, utilize a court reporter or electronic recording device to create a verbatim record. If the City chooses to use an electronic device, either party may elect to pay a court reporter to attend the hearing.

(4)

Standards for resolving factual disputes.

Adequate records. When the following three conditions are met:

a.

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

b.

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

c.

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

then the burden of persuasion falls on the respondent employer whose obligation it was to keep accurate records and the respondent employer 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 employee's evidence. If the respondent employer fails to meet this burden, the hearing officer may award damages based on the complainant employee's evidence.

(5)

Representation. Any person may be represented by counsel in any proceeding herein at that person's expense. Any party, including corporate entities, may authorize a non-lawyer advocate to appear on behalf of that party unless specifically disallowed by the hearing officer for good cause. The employee who asserts the claim must appear at the hearing in person.

(6)

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 article or by rules, regulations, or orders adopted pursuant to this article.

b.

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

(Ord. No. 161-H, § 1, 4-16-2015)