Senate Bill sb2118
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Florida Senate - 2005 SB 2118
By Senator Atwater
25-1355-05 See HB 423
1 A bill to be entitled
2 An act relating to worker's compensation;
3 amending s. 440.02, F.S.; redefining the term
4 "employee" under the Workers' Compensation Law
5 to revise an exemption relating to
6 owner-operators of motor vehicles; providing an
7 effective date.
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9 Be It Enacted by the Legislature of the State of Florida:
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11 Section 1. Paragraph (d) of subsection (15) of section
12 440.02, Florida Statutes, is amended to read:
13 440.02 Definitions.--When used in this chapter, unless
14 the context clearly requires otherwise, the following terms
15 shall have the following meanings:
16 (15)
17 (d) "Employee" does not include:
18 1. An independent contractor who is not engaged in the
19 construction industry.
20 a. In order to meet the definition of independent
21 contractor, at least four of the following criteria must be
22 met:
23 (I) The independent contractor maintains a separate
24 business with his or her own work facility, truck, equipment,
25 materials, or similar accommodations;
26 (II) The independent contractor holds or has applied
27 for a federal employer identification number, unless the
28 independent contractor is a sole proprietor who is not
29 required to obtain a federal employer identification number
30 under state or federal regulations;
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Florida Senate - 2005 SB 2118
25-1355-05 See HB 423
1 (III) The independent contractor receives compensation
2 for services rendered or work performed and such compensation
3 is paid to a business rather than to an individual;
4 (IV) The independent contractor holds one or more bank
5 accounts in the name of the business entity for purposes of
6 paying business expenses or other expenses related to services
7 rendered or work performed for compensation;
8 (V) The independent contractor performs work or is
9 able to perform work for any entity in addition to or besides
10 the employer at his or her own election without the necessity
11 of completing an employment application or process; or
12 (VI) The independent contractor receives compensation
13 for work or services rendered on a competitive-bid basis or
14 completion of a task or a set of tasks as defined by a
15 contractual agreement, unless such contractual agreement
16 expressly states that an employment relationship exists.
17 b. If four of the criteria listed in sub-subparagraph
18 a. do not exist, an individual may still be presumed to be an
19 independent contractor and not an employee based on full
20 consideration of the nature of the individual situation with
21 regard to satisfying any of the following conditions:
22 (I) The independent contractor performs or agrees to
23 perform specific services or work for a specific amount of
24 money and controls the means of performing the services or
25 work.
26 (II) The independent contractor incurs the principal
27 expenses related to the service or work that he or she
28 performs or agrees to perform.
29 (III) The independent contractor is responsible for
30 the satisfactory completion of the work or services that he or
31 she performs or agrees to perform.
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Florida Senate - 2005 SB 2118
25-1355-05 See HB 423
1 (IV) The independent contractor receives compensation
2 for work or services performed for a commission or on a
3 per-job basis and not on any other basis.
4 (V) The independent contractor may realize a profit or
5 suffer a loss in connection with performing work or services.
6 (VI) The independent contractor has continuing or
7 recurring business liabilities or obligations.
8 (VII) The success or failure of the independent
9 contractor's business depends on the relationship of business
10 receipts to expenditures.
11 c. Notwithstanding anything to the contrary in this
12 subparagraph, an individual claiming to be an independent
13 contractor has the burden of proving that he or she is an
14 independent contractor for purposes of this chapter.
15 2. A real estate licensee, if that person agrees, in
16 writing, to perform for remuneration solely by way of
17 commission.
18 3. Bands, orchestras, and musical and theatrical
19 performers, including disk jockeys, performing in licensed
20 premises as defined in chapter 562, if a written contract
21 evidencing an independent contractor relationship is entered
22 into before the commencement of such entertainment.
23 4. An owner-operator of a motor vehicle who transports
24 property under a written contract with a motor carrier which
25 evidences a relationship by which the owner-operator assumes
26 the responsibility of an employer for the performance of the
27 contract, if the owner-operator is required to furnish the
28 necessary motor vehicle equipment as identified in the written
29 contract and the principal all costs incidental to the
30 performance of the contract, including, but not limited to,
31 fuel and, taxes, licenses, repairs, provided a motor carrier's
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Florida Senate - 2005 SB 2118
25-1355-05 See HB 423
1 advance of costs to the owner-operator when a written contract
2 evidences the owner-operator's obligation to reimburse such
3 advance shall be treated as the owner-operator furnishing such
4 cost and hired help; and the owner-operator is paid a
5 commission for transportation service and is not paid by the
6 hour or on some other time-measured basis.
7 5. A person whose employment is both casual and not in
8 the course of the trade, business, profession, or occupation
9 of the employer.
10 6. A volunteer, except a volunteer worker for the
11 state or a county, municipality, or other governmental entity.
12 A person who does not receive monetary remuneration for
13 services is presumed to be a volunteer unless there is
14 substantial evidence that a valuable consideration was
15 intended by both employer and employee. For purposes of this
16 chapter, the term "volunteer" includes, but is not limited to:
17 a. Persons who serve in private nonprofit agencies and
18 who receive no compensation other than expenses in an amount
19 less than or equivalent to the standard mileage and per diem
20 expenses provided to salaried employees in the same agency or,
21 if such agency does not have salaried employees who receive
22 mileage and per diem, then such volunteers who receive no
23 compensation other than expenses in an amount less than or
24 equivalent to the customary mileage and per diem paid to
25 salaried workers in the community as determined by the
26 department; and
27 b. Volunteers participating in federal programs
28 established under Pub. L. No. 93-113.
29 7. Unless otherwise prohibited by this chapter, any
30 officer of a corporation who elects to be exempt from this
31 chapter. Such officer is not an employee for any reason under
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Florida Senate - 2005 SB 2118
25-1355-05 See HB 423
1 this chapter until the notice of revocation of election filed
2 pursuant to s. 440.05 is effective.
3 8. An officer of a corporation that is engaged in the
4 construction industry who elects to be exempt from the
5 provisions of this chapter, as otherwise permitted by this
6 chapter. Such officer is not an employee for any reason until
7 the notice of revocation of election filed pursuant to s.
8 440.05 is effective.
9 9. An exercise rider who does not work for a single
10 horse farm or breeder, and who is compensated for riding on a
11 case-by-case basis, provided a written contract is entered
12 into prior to the commencement of such activity which
13 evidences that an employee/employer relationship does not
14 exist.
15 10. A taxicab, limousine, or other passenger
16 vehicle-for-hire driver who operates said vehicles pursuant to
17 a written agreement with a company which provides any
18 dispatch, marketing, insurance, communications, or other
19 services under which the driver and any fees or charges paid
20 by the driver to the company for such services are not
21 conditioned upon, or expressed as a proportion of, fare
22 revenues.
23 11. A person who performs services as a sports
24 official for an entity sponsoring an interscholastic sports
25 event or for a public entity or private, nonprofit
26 organization that sponsors an amateur sports event. For
27 purposes of this subparagraph, such a person is an independent
28 contractor. For purposes of this subparagraph, the term
29 "sports official" means any person who is a neutral
30 participant in a sports event, including, but not limited to,
31 umpires, referees, judges, linespersons, scorekeepers, or
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Florida Senate - 2005 SB 2118
25-1355-05 See HB 423
1 timekeepers. This subparagraph does not apply to any person
2 employed by a district school board who serves as a sports
3 official as required by the employing school board or who
4 serves as a sports official as part of his or her
5 responsibilities during normal school hours.
6 12. Medicaid-enrolled clients under chapter 393 who
7 are excluded from the definition of employment under s.
8 443.1216(4)(d) and served by Adult Day Training Services under
9 the Home and Community-Based Medicaid Waiver program in a
10 sheltered workshop setting licensed by the United States
11 Department of Labor for the purpose of training and earning
12 less than the federal hourly minimum wage.
13 Section 2. This act shall take effect July 1, 2005.
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