HR Management & Compliance

Can Local Governments Set Higher Minimum Wage Than the State?

Throughout the country, much has been made of varied initiatives to increase the minimum wage from its current level under federal law to higher levels. Many commentators frequently propose $15 an hour as the new minimum wage, and some municipalities throughout the country have enacted local ordinances to push their minimum wage higher than the federal minimum wage.minimum wage

The city of Miami Beach was one such city. In 2016, it enacted an ordinance raising the minimum wage for many of its employees higher than the state and federal minimum wages. The city was sued for enacting the ordinance, and the trial court struck down the law. The Florida 3rd District Court of Appeals upheld the decision of the trial court.

The Ordinance

The city’s ordinance, which was titled “City Minimum Living Wage,” raised the minimum wage in Miami Beach above the rate set by the Florida Minimum Wage Act and the federal Fair Labor Standards Act (FLSA). The Florida Legislature had previously enacted a statute that established that the federal minimum wage was the Florida minimum wage and that local governments could not set a different minimum wage.

In 2004, Florida voters amended the Florida Constitution to establish a higher minimum wage in Florida than the minimum wage set by federal law. The amendment stated:

This Amendment provides for payment of a minimum wage and shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this amendment.

Miami Beach passed its ordinance mandating a higher minimum wage, interpreting the constitutional amendment to permit it to set a different minimum wage than the one established by state statute. The city was sued over the ordinance, the trial court invalidated the ordinance, and the city appealed.

Ordinance’s Invalidity Upheld

The appellate court held that the city’s argument that the constitutional amendment invalidated the state statute prohibiting local governments from setting a different minimum wage was not dictated by the plain language of the statute and upheld the trial court’s decision invalidating the wage ordinance. The appellate court noted that the amendment to the Florida Constitution expressly provided that it did not preempt the authority of the state legislature from preempting municipal powers as it did in the minimum wage legislation.

The court indicated that based on the plain language of the constitutional amendment, the city was entitled to enact its minimum wage ordinance under the constitution, but the legislature was entitled to exercise its power to preempt local governments’ ability to enact minimum wage ordinances. Accordingly, the appellate court upheld the decision of the trial court to strike down the city’s minimum wage ordinance. The City of Miami Beach, Florida v. Florida Retail Federation, Inc., et al., Case No. 3D17-705 (Fla. 3d DCA, 2017).


If your business is in a locale where a local governmental entity has enacted an ordinance that sets the minimum wage higher than the state statute’s minimum wage, the local ordinance may well be subject to legal attack under the same theories propounded in this case.

Time will tell whether this legal reasoning will prevail since other challenges to local minimum wage ordinances may eventually lead to a conflict. However, this decision is good news for employers facing an ordinance that establishes a minimum wage that is higher than the state’s. Of course, consult an experienced labor and employment attorney before altering your wage and hour practices to ensure you are complying with the current local, state, and federal laws.

Jeff Slanker is an attorney with Sniffen & Spellman, P.A., in Tallahassee, and an editor of Florida Employment Law Letter. He can be reached at 850-205-1996 or

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