Senate Bill 1708c1

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    Florida Senate - 1998                           CS for SB 1708

    By the Committee on Commerce and Economic Opportunities and
    Senator Holzendorf




    310-1828-98

  1                      A bill to be entitled

  2         An act relating to rulemaking authority with

  3         respect to the Department of Labor and

  4         Employment Security (RAB); amending s. 413.011,

  5         F.S.; authorizing rulemaking for vocational

  6         rehabilitation programs and forms; amending s.

  7         413.051, F.S.; authorizing rulemaking for a

  8         vending facility program; amending ss. 443.036,

  9         443.091, 443.131, 443.141, 443.151, F.S.;

10         defining and modifying specific terms; allowing

11         the Division of Unemployment Compensation to

12         adopt rules to determine a claimant's ability

13         to work and availability for work; allowing the

14         division to prescribe by rule training

15         criteria; clarifying types of contracts;

16         allowing the division to adopt rules regarding

17         total succession, procedures for changing

18         methods of reporting, the application of

19         partial payments and monetary and nonmonetary

20         determinations and investigations of

21         eligibility; amending s. 450.121, F.S.;

22         authorizing the Division of Jobs and Benefits

23         to adopt rules that define terms, prescribe

24         documentation for proof of age, prescribe

25         procedure with respect to removal of disability

26         of nonage, require certain safety equipment and

27         a safe workplace for minors, prescribe

28         deadlines for responses to records requests,

29         and state an official address; amending s.

30         450.30, F.S.; authorizing the division to adopt

31         rules prescribing procedures for registering as

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  1         a farm labor contractor; amending s. 450.33,

  2         F.S.; requiring insurance carriers to notify

  3         the division of impending cancellation of

  4         insurance on vehicles that transport farm

  5         workers; amending s. 450.38, F.S.; authorizing

  6         the division to adopt rules containing criteria

  7         for determining the amount of civil penalties;

  8         providing an effective date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  Paragraphs (l) and (m) are added to

13  subsection (1) of section 413.011, Florida Statutes, to read:

14         413.011  Division of Blind Services, internal

15  organizational structure; Advisory Council for the Blind.--

16         (1)  The internal organizational structure of the

17  Division of Blind Services shall be designed for the purpose

18  of insuring the greatest possible efficiency and effectiveness

19  of services to the blind and to be consistent with chapter 20.

20  The Division of Blind Services shall plan, supervise, and

21  carry out the following activities:

22         (l)  Adopt by rule procedures for providing vocational

23  rehabilitation services for the blind.

24         (m)  Adopt by rule forms and instructions to be used by

25  the division in its general administration.

26         Section 2.  Subsection (12) of section 413.051, Florida

27  Statutes, is amended to read:

28         413.051  Eligible blind persons; operation of vending

29  stands.--

30         (12)  The Division of Blind Services may adopt is

31  authorized to promulgate rules to permit the division to

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  1  establish and maintain vending facilities, issue licenses,

  2  establish and maintain a vending-facility training program,

  3  provide vendors access to financial data of the program, set

  4  aside funds from net proceeds of the vending facility, provide

  5  for the transfer and promotion of vendors, establish a vendors

  6  committee, provide for an operation agreement, provide duties

  7  and responsibilities of the division with respect to the

  8  vending facility program, and provide procedures for newspaper

  9  vending sales as needed to implement the provisions of this

10  section.

11         Section 3.  Section 443.036, Florida Statutes, is

12  amended to read:

13         443.036  Definitions.--As used in this chapter, unless

14  the context clearly requires otherwise:

15         (1)  ABLE TO WORK.--The term "able to work" means

16  physically and mentally capable of performing the duties of

17  the occupation in which work is being sought.

18         (2)(1)  AGRICULTURAL LABOR.--The term "agricultural

19  labor" means any remunerated service performed:

20         (a)  On a farm, in the employ of any person, in

21  connection with cultivating the soil or in connection with

22  raising or harvesting any agricultural or horticultural

23  commodity, including the raising, shearing, feeding, caring

24  for, training, and management of livestock, bees, poultry, and

25  fur-bearing animals and wildlife.

26         (b)  In the employ of the owner or tenant or other

27  operator of a farm in connection with the operation,

28  management, conservation, improvement, or maintenance of such

29  farm and its tools and equipment, or in salvaging timber or

30  clearing land of brush and other debris left by a hurricane if

31  the major part of such service is performed on a farm.

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  1         (c)  In connection with the production or harvesting of

  2  any commodity defined as an agricultural commodity in s. 15(g)

  3  of the Agricultural Marketing Act, as amended (46 Stat. 1550,

  4  s. 3; 12 U.S.C. s. 1141j s. 114j); the ginning of cotton; or

  5  the operation or maintenance of ditches, canals, reservoirs,

  6  or waterways, not owned or operated for profit, used

  7  exclusively for supplying and storing water for farming

  8  purposes.

  9         (d)1.  In the employ of the operator of a farm in

10  handling, planting, drying, packing, packaging, processing,

11  freezing, grading, storing, or delivering to storage or to

12  market or to a carrier for transportation to market, in its

13  unmanufactured state, any agricultural or horticultural

14  commodity, but only if such operator produced more than

15  one-half of the commodity with respect to which such service

16  is performed.

17         2.  In the employ of a group of operators of farms (or

18  a cooperative organization of which such operators are

19  members) in the performance of service described in

20  subparagraph 1., but only if such operators produced more than

21  one-half of the commodity with respect to which such service

22  is performed.

23         3.  The provisions of subparagraphs 1. and 2. shall not

24  be deemed to be applicable with respect to service performed

25  in connection with commercial canning or commercial freezing

26  or in connection with any agricultural or horticultural

27  commodity after its delivery to a terminal market for

28  distribution for consumption or in connection with grading,

29  packing, packaging, or processing fresh citrus fruits.

30         (e)  On a farm operated for profit if such service is

31  not in the course of the employer's trade or business.

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  1         (3)(2)  AMERICAN AIRCRAFT.--The term "American

  2  aircraft" means an aircraft registered under the laws of the

  3  United States.

  4         (4)(3)  AMERICAN EMPLOYER.--An "American employer"

  5  means:

  6         (a)  An individual who is a resident of the United

  7  States.

  8         (b)  A partnership, if two-thirds or more of the

  9  partners are residents of the United States.

10         (c)  A trust, if all of the trustees are residents of

11  the United States.

12         (d)  A corporation organized under the laws of the

13  United States or of any state.

14         (5)(4)  AMERICAN VESSEL.--The term "American vessel"

15  means any vessel documented or numbered under the laws of the

16  United States and includes any vessel which is neither

17  documented or numbered under the laws of the United States nor

18  documented under the laws of any foreign country, if its crew

19  is employed solely by one or more citizens or residents of the

20  United States or corporations organized under the laws of the

21  United States or of any state.

22         (6)  AVAILABLE FOR WORK.--The term "available for work"

23  means actively seeking and being ready and willing to accept

24  suitable employment.

25         (7)(5)  BASE PERIOD.--"Base period" means the first

26  four of the last five completed calendar quarters immediately

27  preceding the first day of an individual's benefit year.

28         (8)(6)  BENEFIT YEAR.--"Benefit year," with respect to

29  any individual, means the 1-year period beginning with the

30  first day of the first week with respect to which the

31  individual first files a valid claim for benefits and,

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  1  thereafter, the 1-year period beginning with the first day of

  2  the first week with respect to which the individual next files

  3  a valid claim for benefits after the termination of his or her

  4  last preceding benefit year. Any claim for benefits made in

  5  accordance with s. 443.151(2) shall be deemed to be a "valid

  6  claim" for the purposes of this subsection if the individual

  7  has been paid wages for insured work in accordance with the

  8  provisions of s. 443.091(1)(f) s. 443.091(1)(e) and is

  9  unemployed as defined in subsection (39) (32) at the time of

10  the filing of such claim.  However, the division may in its

11  discretion provide by rule for the establishment of a uniform

12  benefit year for all workers in one or more groups or classes

13  of service or within a particular industry when and if it has

14  been determined by the division, after notice to the industry

15  and to the workers in such industry and an opportunity to be

16  heard in the matter, that such groups or classes of workers in

17  a particular industry periodically experience unemployment

18  resulting from layoffs or shutdowns for limited periods of

19  time.

20         (9)(7)  BENEFITS.--"Benefits" means the money payable

21  to an individual, as provided in this chapter, with respect to

22  his or her unemployment.

23         (10)(8)  CALENDAR QUARTER.--"Calendar quarter" means

24  each period of 3 consecutive calendar months ending on March

25  31, June 30, September 30, and December 31.

26         (11)(9)  CASUAL LABOR.--"Casual labor" means labor

27  which is occasional, incidental, or irregular, not exceeding

28  200 person-hours in total duration.  "Duration" means the

29  period of time from the commencement to the completion of the

30  particular job or project.  However, services performed by an

31  employee for his or her employer during a period of 1 calendar

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  1  month or any 2 consecutive calendar months shall be deemed to

  2  be casual labor only if such service is performed on not more

  3  than 10 calendar days, whether or not such days are

  4  consecutive.  If any of the services of an individual on a

  5  particular labor project are not casual labor, as defined,

  6  then none of the services of such individual on such job or

  7  project shall be deemed casual labor. In order for services to

  8  be exempt under this subsection, such services shall

  9  constitute casual labor, as defined, and not in the course of

10  the employer's trade or business, as defined.

11         (12)(10)  COMMISSION.--"Commission" means the

12  Unemployment Appeals Commission of the Department of Labor and

13  Employment Security.

14         (13)(11)  CONTRIBUTIONS.--"Contributions" means the

15  money payments to the Unemployment Compensation Trust Fund

16  required by this chapter.

17         (14)(12)  CREW LEADER.--"Crew leader" means an

18  individual who:

19         (a)  Furnishes individuals to perform service in

20  agricultural labor for any other person.

21         (b)  Pays, either on his or her own behalf or on behalf

22  of such other person, the individuals so furnished by him or

23  her for the service in agricultural labor performed by them.

24         (c)  Has not entered into a written agreement with such

25  other person under which such individual is designated as an

26  employee of such other person.

27         (15)(13)  DIVISION.--"Division" means the Division of

28  Unemployment Compensation of the Department of Labor and

29  Employment Security.

30         (16)(14)  EARNED INCOME.--The term "earned income"

31  means gross remuneration derived from work, professional

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  1  service, or self-employment but does not include income

  2  derived from invested capital or ownership of property.  The

  3  term includes commissions, bonuses, back pay awards, and the

  4  cash value of all remuneration paid in any medium other than

  5  cash.

  6         (17)(15)  EDUCATIONAL INSTITUTION.--With the exception

  7  of an institution of higher education as defined in subsection

  8  (26) (24), "educational institution" means an institution:

  9         (a)  In which participants, trainees, or students are

10  offered an organized course of study or training designed to

11  transfer to them knowledge, skills, information, doctrines,

12  attitudes, or abilities from, by, or under the guidance of, an

13  instructor or teacher;

14         (b)  Which is approved, licensed, or issued a permit to

15  operate as a school by the Department of Education or other

16  governmental agency that is authorized within the state to

17  approve, license, or issue a permit for the operation of a

18  school; and

19         (c)  Which offers courses of study or training which

20  are academic, technical, trade, or preparation for gainful

21  employment in a recognized occupation.

22         (18)(16)  EMPLOYEE LEASING COMPANY.--The term "employee

23  leasing company" means an employing unit which maintains a

24  valid and active license under chapter 468 and which maintains

25  the records required by s. 443.171(7) and, in addition,

26  maintains a listing of the clients of the employee leasing

27  company and of the employees, including their social security

28  numbers, who have been assigned to work at each client company

29  job site. Further, each client company job site must be

30  identified by industry, products or services, and address. The

31  client list shall be provided to the division by June 30 and

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  1  by December 31 of each year. For purposes of this subsection,

  2  "client" means a party who has contracted with an employee

  3  leasing company to provide a worker, or workers, to perform

  4  services for the client. Leased employees shall include

  5  employees subsequently placed on the payroll of the employee

  6  leasing company on behalf of the client. The employee leasing

  7  company shall notify the division within 30 days of the

  8  initiation or termination of the company's relationship with

  9  any client company pursuant to chapter 468.

10         (19)(17)  EMPLOYER.--"Employer" means:

11         (a)  Any employing unit which:

12         1.  In any calendar quarter in either the current or

13  preceding calendar year paid for service in employment wages

14  of $1,500 or more; or

15         2.  For any portion of a day in each of 20 different

16  calendar weeks, whether or not such weeks were consecutive, in

17  either the current or the preceding calendar year, had in

18  employment at least one individual, irrespective of whether

19  the same individual was in employment in each such day.

20         (b)  Any employing unit for which service in

21  employment, as defined in paragraph (21)(b) (19)(b), is

22  performed, except as provided in paragraph (e).

23         (c)  Any employing unit for which service in

24  employment, as defined in paragraph (21)(c) (19)(c), is

25  performed, except as provided in paragraph (e).

26         (d)1.  Any employing unit for which agricultural labor,

27  as defined in paragraph (21)(e) (19)(e), is performed after

28  December 31, 1977.

29         2.  Any employing unit for which domestic service in

30  employment, as defined in paragraph (21)(g) (19)(g), is

31  performed after December 31, 1977.

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  1         (e)1.  In determining whether or not an employing unit

  2  for which service other than domestic service is also

  3  performed is an employer under paragraph (a), paragraph (b),

  4  or paragraph (c) or subparagraph (d)1., the wages earned or

  5  the employment of an employee performing domestic service

  6  after December 31, 1977, shall not be taken into account.

  7         2.  In determining whether or not an employing unit for

  8  which service other than agricultural labor is also performed

  9  is an employer under paragraph (a), paragraph (b), or

10  paragraph (c) or subparagraph (d)2., the wages earned or the

11  employment of an employee performing service in agricultural

12  labor after December 31, 1977, shall not be taken into

13  account. If an employing unit is determined to be an employer

14  of agricultural labor, the employing unit shall be determined

15  an employer for the purposes of paragraph (a).

16         (f)  Any individual or employing unit which acquired

17  the organization, trade, or business, or substantially all the

18  assets thereof, of another which at the time of such

19  acquisition was an employer subject to this chapter or which

20  acquired a part of the organization, trade, or business of

21  another which at the time of such acquisition was an employer

22  subject to this chapter, provided such other would have been

23  an employer under paragraph (a) if such part had constituted

24  its entire organization, trade, or business.

25         (g)  Any individual or employing unit which acquired

26  the organization, trade, or business, or substantially all the

27  assets thereof, of another employing unit, if the employment

28  record of the predecessor prior to such acquisition together

29  with the employment record of such individual or employing

30  unit subsequent to such acquisition, both within the same

31

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  1  calendar year, would be sufficient to render an employing unit

  2  subject to this chapter as an employer under paragraph (a).

  3         (h)  Any employing unit not an employer by reason of

  4  any other paragraph of this subsection:

  5         1.  For which, within either the current or preceding

  6  calendar year, service is or was performed with respect to

  7  which such employing unit is liable for any federal tax

  8  against which credit may be taken for contributions required

  9  to be paid into a state unemployment fund.

10         2.  Which, as a condition for approval of this chapter

11  for full tax credit against the tax imposed by the Federal

12  Unemployment Tax Act, is required pursuant to such act to be

13  an "employer" under this chapter.

14         (i)  Any employing unit which has become an employer

15  under paragraph (a), paragraph (b), paragraph (c), paragraph

16  (d), paragraph (e), paragraph (f), paragraph (g), or paragraph

17  (h) and has not ceased to be an employer subject to this

18  chapter, as provided in s. 443.121.

19         (j)  For the effective period of its election, any

20  other employing unit which has elected to become subject to

21  this chapter.

22         (k)  Any employing unit which fails to keep the records

23  of employment required by this chapter and by the rules of the

24  division shall be presumed to be an employer liable for the

25  payment of contributions pursuant to the provisions of this

26  chapter, regardless of the number of individuals employed by

27  such employing unit.  However, the division shall make written

28  demand that such employing unit keep and maintain required

29  payroll records, and such demand shall have been made not less

30  than 6 months before assessing contributions against any

31

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  1  employing unit determined to have become an "employer" solely

  2  by reason of this paragraph.

  3

  4  For purposes of this subsection, if any week includes both

  5  December 31 and January 1, the days of that week up to January

  6  1 shall be deemed 1 calendar week, and the days beginning

  7  January 1, another such week.

  8         (20)(18)  EMPLOYING UNIT.--"Employing unit" means any

  9  individual or type of organization, including any partnership,

10  association, trust, estate, joint-stock company, insurance

11  company, or corporation, whether domestic or foreign; the

12  receiver, trustee in bankruptcy, trustee, or successor of any

13  of the foregoing; or the legal representative of a deceased

14  person, which has or had in its employ one or more individuals

15  performing services for it within this state.

16         (a)  Each individual employed to perform or to assist

17  in performing the work of any agent or employee of an

18  employing unit shall be deemed to be employed by such

19  employing unit for all the purposes of this chapter, whether

20  such individual was hired or paid directly by such employing

21  unit or by such agent or employee, provided the employing unit

22  had actual or constructive knowledge of the work.

23         (b)  All individuals performing services within this

24  state for any employing unit which maintains two or more

25  separate establishments within this state shall be deemed to

26  be performing services for a single employing unit for all the

27  purposes of this chapter.

28         (c)  Any person who is an officer of a corporation and

29  who performs services for such corporation within this state,

30  whether or not such services are continuous, shall be deemed

31  an employee of the corporation during all of each week of his

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  1  or her tenure of office, regardless of whether or not he or

  2  she is compensated for such services. Services shall be

  3  presumed to have been rendered the corporation in cases where

  4  such officer is compensated by means other than dividends upon

  5  shares of stock of such corporation owned by him or her.

  6         (21)(19)  EMPLOYMENT.--"Employment," subject to the

  7  other provisions of this chapter, means any service performed

  8  by an employee for the person employing him or her.

  9         (a)  Generally.--

10         1.  The term "employment" includes any service

11  performed prior to January 1, 1978, which was employment as

12  defined in this subsection prior to such date and, subject to

13  the other provisions of this subsection, service performed

14  after December 31, 1977, including service in interstate

15  commerce, by:

16         a.  Any officer of a corporation.

17         b.  Any individual who, under the usual common-law

18  rules applicable in determining the employer-employee

19  relationship, has the status of an employee. However, whenever

20  a company, hereafter referred to as "client," which would

21  otherwise be designated as an employing unit has contracted

22  with an employee leasing company to supply it with workers,

23  those workers shall, after December 31, 1986, be considered

24  employees of the employee leasing company. The employee

25  leasing company shall be permitted to lease corporate officers

26  of the client to the client and such other workers where not

27  prohibited by Internal Revenue Service regulations.  Employees

28  of the employee leasing company shall be reported under the

29  employee leasing company's tax identification number and tax

30  rate for work performed for the employee leasing company.

31

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  1         c.  Any individual other than an individual who is an

  2  employee under sub-subparagraph a. or sub-subparagraph b., who

  3  performs services for remuneration for any person:

  4         (I)  As an agent-driver or commission-driver engaged in

  5  distributing meat products, vegetable products, fruit

  6  products, bakery products, beverages (other than milk), or

  7  laundry or drycleaning services for his or her principal.

  8         (II)  As a traveling or city salesperson, other than as

  9  an agent-driver or commission-driver, engaged on a full-time

10  basis in the solicitation on behalf of, and the transmission

11  to, his or her principal (except for sideline sales activities

12  on behalf of some other person) of orders from wholesalers,

13  retailers, contractors, or operators of hotels, restaurants,

14  or other similar establishments for merchandise for resale or

15  supplies for use in their business operations.

16

17  For purposes of sub-subparagraph c., the term "employment"

18  includes services described in sub-sub-subparagraphs (I) and

19  (II) only if: The contract of service contemplates that

20  substantially all of the services are to be performed

21  personally by such individual; the individual does not have a

22  substantial investment in facilities used in connection with

23  the performance of the services, other than in facilities for

24  transportation; and the services are not in the nature of a

25  single transaction that is not part of a continuing

26  relationship with the person for whom the services are

27  performed.

28         2.  Notwithstanding any other provisions of this

29  subsection, service with respect to which a tax is required to

30  be paid under any federal law imposing a tax against which

31  credit may be taken for contributions required to be paid into

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  1  a state unemployment fund or which as a condition for full tax

  2  credit against the tax imposed by the Federal Unemployment Tax

  3  Act is required to be covered under this chapter.

  4         3.  If the services performed during one-half or more

  5  of any pay period by an employee for the person employing him

  6  or her constitute employment, all of the services of such

  7  employee for such period shall be deemed to be employment, but

  8  if the services performed during more than one-half of any

  9  such pay period by an employee for the person employing him or

10  her do not constitute employment, then none of the services of

11  such employee for such period shall be deemed to be

12  employment.  This subparagraph shall not be applicable with

13  respect to services performed in a pay period by an employee

14  for the person employing him or her, when any of such service

15  is excepted by subparagraph (n)7.

16         4.  If two or more related corporations concurrently

17  employ the same individual and compensate such individual

18  through a common paymaster, each related corporation shall be

19  considered to have paid as wages to such individual only the

20  amounts actually disbursed by it to such individual and shall

21  not be considered to have paid as wages to such individual any

22  amounts actually disbursed to such individual by another of

23  such corporations.

24         a.  A "common paymaster" is any member of a group of

25  related corporations that disburses wages to concurrent

26  employees on behalf of the related corporations and that is

27  responsible for keeping payroll records with respect to those

28  concurrent employees. The common paymaster is not required to

29  disburse wages to all the employees of the related

30  corporations, but the provisions of this section shall not

31  apply to any wages to concurrent employees that are not

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  1  disbursed through a common paymaster. The common paymaster

  2  shall pay concurrently employed individuals under this section

  3  by one combined paycheck.

  4         b.  "Concurrent employment" means the existence of

  5  simultaneous employment relationships, as defined in this

  6  chapter, between an individual and related corporations. Such

  7  relationships require the performance of services by the

  8  employee for the benefit of the related corporations,

  9  including the common paymaster, in exchange for wages which,

10  if deductible for the purposes of federal income tax, would be

11  deductible by the related corporations.

12         c.  Corporations shall be considered related

13  corporations for an entire calendar quarter, as defined in

14  subsection (10) (8), if they satisfy any one of the following

15  four tests at any time during that calendar quarter:

16         (I)  The corporations are members of a "controlled

17  group of corporations" as defined in s. 1563 of the Internal

18  Revenue Code of 1986 or would be members if paragraph

19  1563(a)(4) and subsection 1563(b) did not apply.

20         (II)  In the case of a corporation that does not issue

21  stock, either 50 percent or more of the members of the board

22  of directors or other governing body of one corporation are

23  members of the board of directors or other governing body of

24  the other corporation, or the holders of 50 percent or more of

25  the voting power to select such members are concurrently the

26  holders of more than 50 percent of that power with respect to

27  the other corporation.

28         (III)  Fifty percent or more of the officers of one

29  corporation are concurrently officers of the other

30  corporation.

31

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  1         (IV)  Thirty percent or more of the employees of one

  2  corporation are concurrently employees of the other

  3  corporation.

  4         d.  The common paymaster shall report to the division,

  5  as a part of the unemployment compensation quarterly tax and

  6  wage report, the state unemployment compensation account

  7  number and name of each related corporation for which

  8  concurrent employees are being reported. Failure to timely

  9  report this information shall result in the related

10  corporations being denied common paymaster status for that

11  calendar quarter.

12         e.  The common paymaster shall also have the primary

13  responsibility for remitting contributions due under this

14  chapter with respect to the wages it disburses as the common

15  paymaster. The common paymaster shall compute these

16  contributions as though it were the sole employer of the

17  concurrently employed individuals. If the common paymaster

18  fails to timely remit these contributions or reports, in whole

19  or in part, it shall remain liable for the full amount of the

20  unpaid portion of these taxes. In addition, each of the other

21  related corporations using the common paymaster shall be

22  jointly and severally liable for its appropriate share of

23  these contributions. Such share shall be an amount equal to

24  the greater of the following:

25         (I)  The amount of the liability of the common

26  paymaster under this chapter, after taking into account any

27  contributions made.

28         (II)  The amount of the liability under this chapter

29  which, but for this section, would have existed with respect

30  to the wages from such other related corporations, reduced by

31

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  1  an allocable portion of any contributions previously paid by

  2  the common paymaster with respect to those wages.

  3         f.  This subsection may apply to all contributions and

  4  reports due for the first quarter of 1997 and thereafter.

  5         (b)  Public employees.--The term "employment" includes

  6  service performed in the employ of this state or any of its

  7  instrumentalities or any political subdivision thereof or any

  8  of its instrumentalities, any instrumentality of more than one

  9  of the foregoing, or any instrumentality of any of the

10  foregoing and one or more other states or political

11  subdivisions, provided such service is excluded from

12  "employment" as defined in s. 3306(c)(7) of the Federal

13  Unemployment Tax Act and is not excluded from "employment"

14  under paragraph (d) of this subsection.

15         (c)  Religious, charitable, etc., employees.--The term

16  "employment" includes service performed by an individual in

17  the employ of a religious, charitable, educational, or other

18  organization, but only if the following conditions are met:

19         1.  The service is excluded from "employment" as

20  defined in the Federal Unemployment Tax Act solely by reason

21  of s. 3306(c)(8) of that act; and

22         2.  The organization had four or more individuals in

23  employment for some portion of a day in each of 20 different

24  weeks, whether or not such weeks were consecutive, within

25  either the current or preceding calendar year, regardless of

26  whether they were employed at the same moment of time.

27         (d)  Exclusions from paragraphs (b) and (c).--For the

28  purposes of paragraphs (b) and (c), the term "employment" does

29  not apply to service performed:

30         1.  In the employ of:

31         a.  A church or convention or association of churches.

                                  18

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  1         b.  An organization which is operated primarily for

  2  religious purposes and which is operated, supervised,

  3  controlled, or principally supported by a church or convention

  4  or association of churches.

  5         2.  By a duly ordained, commissioned, or licensed

  6  minister of a church in the exercise of his or her ministry or

  7  by a member of a religious order in the exercise of duties

  8  required by such order.

  9         3.  Prior to January 1, 1978, in the employ of a

10  nonprofit educational institution which is not an institution

11  of higher education and which would otherwise be employment as

12  defined in paragraph (c).

13         4.  In the employ of a governmental entity referred to

14  in paragraph (b), if such service is performed by an

15  individual in the exercise of duties:

16         a.  As an elected official.

17         b.  As a member of a legislative body, or a member of

18  the judiciary, of a state or political subdivision.

19         c.  As an employee serving on a temporary basis in case

20  of fire, storm, snow, earthquake, flood, or similar emergency.

21         d.  In a position which, under or pursuant to the laws

22  of this state, is designated as a major nontenured

23  policymaking or advisory position or a policymaking or

24  advisory position, the performance of the duties of which

25  ordinarily does not require more than 8 hours per week.

26         5.  In a facility conducted for the purpose of carrying

27  out a program of rehabilitation for individuals whose earning

28  capacity is impaired by age or physical or mental deficiency

29  or injury or providing remunerative work for individuals who,

30  because of their impaired physical or mental capacity, cannot

31

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  1  be readily absorbed in the competitive labor market, by an

  2  individual receiving such rehabilitation or remunerative work.

  3         6.  As part of an unemployment work-relief or

  4  work-training program assisted or financed in whole or in part

  5  by any federal agency or an agency of a state or political

  6  subdivision thereof, by an individual receiving such work

  7  relief or work training, except that this subparagraph does

  8  not apply to unemployment work-relief or work-training

  9  programs for which unemployment compensation coverage is

10  required under a federal law, rule, or regulation.

11         7.  By an inmate of a custodial or penal institution.

12         (e)  Agricultural service.--The term "employment"

13  includes service performed after December 31, 1977, by an

14  individual in agricultural labor, as defined in subsection (2)

15  (1), when:

16         1.  Such service is performed before January 1, 1988,

17  for a person who:

18         a.  During any calendar quarter in either the current

19  or the preceding calendar year paid remuneration in cash of

20  $20,000 or more to individuals employed in agricultural labor.

21         b.  For some portion of a day in each of 20 different

22  calendar weeks, whether or not such weeks were consecutive, in

23  either the current or the preceding calendar year, employed in

24  agricultural labor 10 or more individuals, regardless of

25  whether they were employed at the same moment of time.

26         2.  Such service is performed after December 31, 1987,

27  for a person who:

28         a.  During any calendar quarter in either the current

29  or the preceding calendar year paid remuneration in cash of

30  $10,000 or more to individuals employed in agricultural labor.

31

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  1         b.  For some portion of a day in each of 20 different

  2  calendar weeks, whether or not such weeks were consecutive, in

  3  either the current or the preceding calendar year, employed in

  4  agricultural labor five or more individuals, regardless of

  5  whether they were employed at the same moment of time.

  6         3.  Such service is performed by any individual who is

  7  a member of a crew furnished by a crew leader to perform

  8  service in agricultural labor for any other person.

  9         a.  For the purposes of this subparagraph, a crew

10  member shall be treated as an employee of the crew leader:

11         (I)  If the crew leader holds a valid certificate of

12  registration under the Migrant and Seasonal Agricultural

13  Worker Protection Act of 1983 or if substantially all of the

14  members of the crew operate or maintain tractors, mechanized

15  harvesting or crop-dusting equipment, or any other mechanized

16  equipment which is provided by the crew leader; and

17         (II)  If such individual is not an employee of such

18  other person within the meaning of paragraph (a).

19         b.  For the purposes of this subparagraph, in the case

20  of an individual who is furnished by a crew leader to perform

21  service in agricultural labor for any other person and who is

22  not treated as an employee of the crew leader under

23  sub-subparagraph a.:

24         (I)  Such other person and not the crew leader shall be

25  treated as the employer of such individual; and

26         (II)  Such other person shall be treated as having paid

27  cash remuneration to such individual in an amount equal to the

28  amount of cash remuneration paid to such individual by the

29  crew leader, either on his or her own behalf or on the behalf

30  of such other person, for the service in agricultural labor

31  performed for such other person.

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  1         (f)  Exclusion from paragraph (e).--The term

  2  "employment" does not include service performed by an

  3  individual in agricultural labor, except as provided in

  4  paragraph (e); however, the provisions of paragraph (e) shall

  5  not reduce the coverage provided under subparagraph (d)3.

  6         (g)  Domestic service.--The term "employment" includes

  7  domestic service after December 31, 1977, performed by maids,

  8  cooks, maintenance workers, chauffeurs, social secretaries,

  9  caretakers, private yacht crews, butlers, and houseparents, in

10  a private home, local college club, or local chapter of a

11  college fraternity or sorority performed for a person who paid

12  cash remuneration of $1,000 or more after December 31, 1977,

13  in any calendar quarter in the current calendar year or the

14  preceding calendar year to individuals employed in such

15  domestic service.

16         (h)  Service outside state.--The term "employment"

17  includes an individual's entire service, performed within or

18  both within and without this state if:

19         1.  The service is localized in this state; or

20         2.  The service is not localized in any state, but some

21  of the service is performed in this state, and:

22         a.  The base of operations, or, if there is no base of

23  operations, then the place from which such service is directed

24  or controlled, is in this state; or

25         b.  The base of operations or place from which such

26  service is directed or controlled is not in any state in which

27  some part of the service is performed, but the individual's

28  residence is in this state.

29         (i)  Employer election to include service outside

30  state.--Services not covered under subparagraph (h)2. and

31  performed entirely without this state, with respect to no part

                                  22

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  1  of which contributions are required and paid under an

  2  unemployment compensation law of any other state or of the

  3  Federal Government, shall be deemed to be employment subject

  4  to this chapter if the individual performing such services is

  5  a resident of this state and the division approves the

  6  election of the employing unit for whom such services are

  7  performed that the entire service of such individual shall be

  8  deemed to be employment subject to this chapter.

  9         (j)  Service deemed to be localized within

10  state.--Service shall be deemed to be localized within a state

11  if:

12         1.  The service is performed entirely within such

13  state; or

14         2.  The service is performed both within and without

15  such state, but the service performed without such state is

16  incidental to the individual's service within the state; for

17  example, it is temporary or transitory in nature or consists

18  of isolated transactions.

19         (k)  Service outside United States.--The term

20  "employment" includes the service of an individual who is a

21  citizen of the United States, performed outside the United

22  States (except in Canada) in the employ of an American

23  employer, other than service which is deemed "employment"

24  under the provisions of paragraph (b) or paragraph (c) or the

25  parallel provisions of another state's law, if:

26         1.  The employer's principal place of business in the

27  United States is located in this state.

28         2.  The employer has no place of business in the United

29  States, but:

30         a.  The employer is an individual who is a resident of

31  this state.

                                  23

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  1         b.  The employer is a corporation which is organized

  2  under the laws of this state.

  3         c.  The employer is a partnership or a trust and the

  4  number of the partners or trustees who are residents of this

  5  state is greater than the number who are residents of any one

  6  other state.

  7         3.  None of the criteria of subsection (4) (3) and this

  8  paragraph is met, but the employer has elected coverage in

  9  this state, or, the employer having failed to elect coverage

10  in any state, the individual has filed a claim for benefits,

11  based on such service, under the laws of this state.

12         (l)  Service on American vessel or aircraft.--The term

13  "employment" includes all service performed by an officer or

14  member of a crew of an American vessel or American aircraft on

15  or in connection with such vessel or aircraft, provided that

16  the operating office, from which the operations of such vessel

17  or aircraft operating within or within and without the United

18  States is ordinarily and regularly supervised, managed,

19  directed, and controlled, is within this state.

20         (m)  Service under other unemployment compensation

21  law.--The term "employment" includes services covered by an

22  arrangement pursuant to s. 443.221 between the division and

23  the agency charged with the administration of any other state

24  unemployment compensation law or Federal Unemployment

25  Compensation Law, pursuant to which all services performed by

26  an individual for an employing unit are deemed to be performed

27  entirely within this state, if the division has approved an

28  election of the employing unit for which such services are

29  performed, pursuant to which the entire service of such

30  individual during the period covered by such election is

31  deemed to be insured work.

                                  24

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  1         (n)  Exclusions generally.--The term "employment" does

  2  not include:

  3         1.  Domestic service in a private home, local college

  4  club, or local chapter of a college fraternity or sorority,

  5  except as provided in paragraph (g).

  6         2.  Service performed on or in connection with a vessel

  7  or aircraft not an American vessel or American aircraft, if

  8  the employee is employed on and in connection with such vessel

  9  or aircraft when outside the United States.

10         3.  Service performed by an individual in, or as an

11  officer or member of the crew of a vessel while it is engaged

12  in, the catching, taking, harvesting, cultivating, or farming

13  of any kind of fish, shellfish, crustacea, sponges, seaweeds,

14  or other aquatic forms of animal and vegetable life, including

15  service performed by any such individual as an ordinary

16  incident to any such activity, except:

17         a.  Service performed in connection with the catching

18  or taking of salmon or halibut for commercial purposes.

19         b.  Service performed on, or in connection with, a

20  vessel of more than 10 net tons, determined in the manner

21  provided for determining the register tonnage of merchant

22  vessels under the laws of the United States.

23         4.  Service performed by an individual in the employ of

24  his or her son, daughter, or spouse, including step

25  relationships, and service performed by a child, or stepchild,

26  under the age of 21 in the employ of his or her father or

27  mother, or stepfather or stepmother.

28         5.  Service performed in the employ of the United

29  States Government or of an instrumentality of the United

30  States which is:

31         a.  Wholly or partially owned by the United States.

                                  25

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  1         b.  Exempt from the tax imposed by s. 3301 of the

  2  Internal Revenue Code by virtue of any provision of federal

  3  law which specifically refers to such section, or the

  4  corresponding section of prior law, in granting such

  5  exemption; except that to the extent that the Congress shall

  6  permit states to require any instrumentalities of the United

  7  States to make payments into an unemployment fund under a

  8  state unemployment compensation law, all of the provisions of

  9  this law shall be applicable to such instrumentalities, and to

10  services performed for such instrumentalities, in the same

11  manner, to the same extent, and on the same terms as to all

12  other employers, employing units, individuals, and services.

13  If this state is not certified for any year by the Secretary

14  of Labor under s. 3304 of the federal Internal Revenue Code,

15  the payments required of such instrumentalities with respect

16  to such year shall be refunded by the division from the fund

17  in the same manner and within the same period as is provided

18  in s. 443.141(6) with respect to contributions erroneously

19  collected.

20         6.  Service performed in the employ of a state, or any

21  political subdivision thereof, or any instrumentality of any

22  one or more of the foregoing which is wholly owned by one or

23  more states or political subdivisions, except as provided in

24  paragraph (b), and any service performed in the employ of any

25  instrumentality of one or more states or political

26  subdivisions, to the extent that the instrumentality is, with

27  respect to such service, immune under the Constitution of the

28  United States from the tax imposed by s. 3301 of the Internal

29  Revenue Code.

30         7.  Service performed in the employ of a corporation,

31  community chest, fund, or foundation, organized and operated

                                  26

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  1  exclusively for religious, charitable, scientific, testing for

  2  public safety, literary, or educational purposes, or for the

  3  prevention of cruelty to children or animals, no part of the

  4  net earnings of which inures to the benefit of any private

  5  shareholder or individual, no substantial part of the

  6  activities of which is carrying on propaganda or otherwise

  7  attempting to influence legislation, and which does not

  8  participate in, or intervene in (including the publishing or

  9  distributing of statements), any political campaign on behalf

10  of any candidate for public office, except as provided in

11  paragraph (c).

12         8.  Service with respect to which unemployment

13  compensation is payable under an unemployment compensation

14  system established by an Act of Congress.

15         9.a.  Service performed in any calendar quarter in the

16  employ of any organization exempt from income tax under s.

17  501(a) of the Internal Revenue Code, other than an

18  organization described in s. 401(a), or under s. 521, if the

19  remuneration for such service is less than $50.

20         b.  Service performed in the employ of a school,

21  college, or university, if such service is performed by a

22  student who is enrolled and is regularly attending classes at

23  such school, college, or university.

24         10.  Service performed in the employ of a foreign

25  government, including service as a consular or other officer

26  or employee of a nondiplomatic representative.

27         11.  Service performed in the employ of an

28  instrumentality wholly owned by a foreign government:

29         a.  If the service is of a character similar to that

30  performed in foreign countries by employees of the United

31  States Government or of an instrumentality thereof; and

                                  27

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  1         b.  The Secretary of State shall certify to the

  2  Secretary of the Treasury that the foreign government, with

  3  respect to whose instrumentality exemption is claimed, grants

  4  an equivalent exemption with respect to similar service

  5  performed in the foreign country by employees of the United

  6  States Government and of instrumentalities thereof.

  7         12.  Service performed as a student nurse in the employ

  8  of a hospital or a nurses' training school by an individual

  9  who is enrolled and is regularly attending classes in a

10  nurses' training school chartered or approved pursuant to a

11  state law; service performed as an intern in the employ of a

12  hospital by an individual who has completed a 4-year course in

13  a medical school chartered or approved pursuant to state law;

14  and service performed by a patient of a hospital for such

15  hospital.

16         13.  Service performed by an individual for a person as

17  an insurance agent or as an insurance solicitor, if all such

18  service performed by such individual for such person is

19  performed for remuneration solely by way of commission, except

20  for such services performed in accordance with 26 U.S.C.S. s.

21  3306(c)(7) and (8).  For purposes of this subsection, those

22  benefits excluded from the definition of wages pursuant to

23  subparagraphs (33)(b)2.-6., inclusive, shall not be considered

24  remuneration.

25         14.  Service performed by an individual for a person as

26  a real estate salesperson or agent, if all such service

27  performed by such individual for such person is performed for

28  remuneration solely by way of commission.

29         15.  Service performed by an individual under the age

30  of 18 in the delivery or distribution of newspapers or

31

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  1  shopping news, not including delivery or distribution to any

  2  point for subsequent delivery or distribution.

  3         16.  Service covered by an arrangement between the

  4  division and the agency charged with the administration of any

  5  other state or federal unemployment compensation law pursuant

  6  to which all services performed by an individual for an

  7  employing unit during the period covered by such employing

  8  unit's duly approved election are deemed to be performed

  9  entirely within such agency's state or under such federal law.

10         17.  Service performed by an individual who is enrolled

11  at a nonprofit or public educational institution which

12  normally maintains a regular faculty and curriculum and

13  normally has a regularly organized body of students in

14  attendance at the place where its educational activities are

15  carried on as a student in a full-time program, taken for

16  credit at such institution, which combines academic

17  instruction with work experience, if such service is an

18  integral part of such program, and such institution has so

19  certified to the employer, except that this subparagraph does

20  not apply to service performed in a program established for or

21  on behalf of an employer or group of employers.

22         18.  Service performed by an individual for a person as

23  a barber, if all such service performed by such individual for

24  such person is performed for remuneration solely by way of

25  commission.

26         19.  Casual labor not in the course of the employer's

27  trade or business.

28         20.  Service performed by a speech therapist,

29  occupational therapist, or physical therapist who is

30  nonsalaried and working pursuant to a written contract with a

31  home health agency as defined in s. 400.462.

                                  29

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  1         21.  Service performed by a direct seller. For purposes

  2  of this subparagraph, the term "direct seller" means a person:

  3         a.(I)  Who is engaged in the trade or business of

  4  selling or soliciting the sale of consumer products to buyers

  5  on a buy-sell basis or a deposit-commission basis, or on any

  6  similar basis, for resale in the home or in any other place

  7  that is not a permanent retail establishment; or

  8         (II)  Who is engaged in the trade or business of

  9  selling or soliciting the sale of consumer products in the

10  home or in any other place that is not a permanent retail

11  establishment;

12         b.  Substantially all of whose remuneration for

13  services described in sub-subparagraph a., whether or not paid

14  in cash, is directly related to sales or other output, rather

15  than to the number of hours worked; and

16         c.  Who performs such services pursuant to a written

17  contract with the person for whom the services are performed,

18  which contract provides that the person will not be treated as

19  an employee with respect to such services for federal tax

20  purposes.

21         22.  Service performed by a nonresident alien

22  individual for the period he or she is temporarily present in

23  the United States as a nonimmigrant under subparagraph (F) or

24  subparagraph (J) of s. 101(a)(15) of the Immigration and

25  Nationality Act, and which is performed to carry out the

26  purpose specified in subparagraph (F) or subparagraph (J), as

27  the case may be.

28         23.  Service performed by an individual for

29  remuneration for a private, for-profit delivery or messenger

30  service, if the individual:

31

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  1         a.  Is free to accept or reject jobs from the delivery

  2  or messenger service and the delivery or messenger service has

  3  no control over when the individual works;

  4         b.  Is remunerated for each delivery, or the

  5  remuneration is based on factors that relate to the work

  6  performed, including receipt of a percentage of any rate

  7  schedule;

  8         c.  Pays all expenses and the opportunity for profit or

  9  loss rests solely with the individual;

10         d.  Is responsible for operating costs, including fuel,

11  repairs, supplies, and motor vehicle insurance;

12         e.  Determines the method of performing the service,

13  including selection of routes and order of deliveries;

14         f.  Is responsible for the completion of a specific job

15  and is liable for any failure to complete that job;

16         g.  Enters into a contract with the delivery or

17  messenger service which specifies the relationship of the

18  individual to the delivery or messenger service to be that of

19  an independent contractor and not that of an employee; and

20         h.  Provides the vehicle used to perform the service.

21         24.  Service performed in agricultural labor by an

22  individual who is an alien admitted to the United States to

23  perform service in agricultural labor pursuant to ss.

24  101(a)(15)(H) and 214(c) of the Immigration and Nationality

25  Act.

26         (22)(20)  EMPLOYMENT OFFICE.--"Employment office" means

27  a free public employment office or branch thereof operated by

28  this or any other state as a part of a state-controlled system

29  of public employment offices or by a federal agency charged

30  with the administration of an unemployment compensation

31  program or free public employment offices.

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  1         (23)(21)  FARM.--"Farm" includes stock, dairy, poultry,

  2  fruit, fur-bearing animal, and truck farms, plantations,

  3  ranches, nurseries, ranges, greenhouses or other similar

  4  structures used primarily for the raising of agricultural or

  5  horticultural commodities, and orchards.

  6         (24)(22)  FUND.--"Fund" means the Unemployment

  7  Compensation Trust Fund created by this chapter, to which all

  8  contributions required and from which all benefits provided

  9  under this chapter shall be paid.

10         (25)(23)  HOSPITAL.--"Hospital" means an institution

11  which has been licensed, certified, or approved by the

12  Department of Health and Rehabilitative Services as a

13  hospital.

14         (26)(24)  INSTITUTION OF HIGHER

15  EDUCATION.--"Institution of higher education" means an

16  educational institution which:

17         (a)  Admits as regular students only individuals having

18  a certificate of graduation from a high school, or the

19  recognized equivalent of such a certificate;

20         (b)  Is legally authorized in this state to provide a

21  program of education beyond high school;

22         (c)  Provides an educational program for which it

23  awards a bachelor's or higher degree, or provides a program

24  which is acceptable for full credit toward such a degree, a

25  program of postgraduate or postdoctoral studies, or a program

26  of training to prepare students for gainful employment in a

27  recognized occupation; and

28         (d)  Is a public or other nonprofit institution.

29

30  Notwithstanding any of the foregoing provisions of this

31  subsection, all colleges and universities in this state and

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  1  recognized as such by this state are institutions of higher

  2  education for purposes of this section.

  3         (27)(25)  INSURED WORK.--"Insured work" means

  4  employment for employers.

  5         (28)  LEAVE OF ABSENCE.--The term "leave of absence"

  6  means a temporary break in service to an employer, for a

  7  specified period of time, during which the employing unit

  8  guarantees the same or a comparable position to the worker at

  9  the expiration of the leave.

10         (29)(26)  MISCONDUCT.--"Misconduct" includes, but is

11  not limited to, the following, which shall not be construed in

12  pari materia with each other:

13         (a)  Conduct evincing such willful or wanton disregard

14  of an employer's interests as is found in deliberate violation

15  or disregard of standards of behavior which the employer has

16  the right to expect of his or her employee; or

17         (b)  Carelessness or negligence of such a degree or

18  recurrence as to manifest culpability, wrongful intent, or

19  evil design or to show an intentional and substantial

20  disregard of the employer's interests or of the employee's

21  duties and obligations to his or her employer.

22         (30)  MONETARY DETERMINATION.--The term "monetary

23  determination" means a determination of whether and in what

24  amount a claimant is eligible for benefits based on the

25  claimant's employment during the base period of the claim.

26         (31)  NONMONETARY DETERMINATION.--The term "nonmonetary

27  determination" means a determination of the claimant's

28  eligibility for benefits on all issues other than monetary

29  entitlement and benefit overpayment.

30         (32)(27)  NOT IN THE COURSE OF THE EMPLOYER'S TRADE OR

31  BUSINESS.--"Not in the course of the employer's trade or

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  1  business" means that which does not promote or advance the

  2  trade or business of the employer.

  3         (33)(28)  PAY PERIOD.--"Pay period" means a period of

  4  not more than 31 consecutive days for which a payment or

  5  remuneration is ordinarily made to the employee by the person

  6  employing him or her.

  7         (34)  REASONABLE ASSURANCE.--The term "reasonable

  8  assurance" means a written or verbal agreement or an agreement

  9  between the employer and the worker understood through

10  tradition within the trade or occupation or as defined in

11  employer policy.

12         (35)(29)  REIMBURSABLE EMPLOYER.--"Reimbursable

13  employer" means an employer who is liable for payments in lieu

14  of contributions as required by this chapter.

15         (36)(30)  STATE.--"State" includes the states of the

16  United States, the District of Columbia, Canada, the

17  Commonwealth of Puerto Rico, and the Virgin Islands.

18         (37)(31)  STATE LAW.--"State law" means the

19  unemployment insurance law of any state, approved by the

20  United States Secretary of Labor under s. 3304 of the Internal

21  Revenue Code of 1954.

22         (38)  TEMPORARY LAYOFF.--The term "temporary layoff"

23  means a job separation due to lack of work which does not

24  exceed 8 weeks in duration and which has a fixed or

25  approximate return to work date.

26         (39)(32)  UNEMPLOYMENT.--"Unemployment" means:

27         (a)  An individual shall be deemed "totally unemployed"

28  in any week during which he or she performs no services and

29  with respect to which no earned income is payable to him or

30  her, or shall be deemed "partially unemployed" in any week of

31  less than full-time work if the earned income payable to him

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  1  or her with respect to such week is less than his or her

  2  weekly benefit amount.  The division shall prescribe

  3  regulations applicable to unemployed individuals making such

  4  distinctions in the procedures as to total unemployment,

  5  part-time unemployment, partial unemployment of individuals

  6  attached to their regular jobs, and other forms of short-time

  7  work, as the division deems necessary.

  8         (b)  An individual's week of unemployment shall be

  9  deemed to commence only after his or her registration at an

10  employment office, except as the division may by rule

11  otherwise prescribe.

12         (40)(33)  WAGES.--

13         (a)  "Wages" means all remuneration for employment,

14  including commissions, bonuses, back pay awards, and the cash

15  value of all remuneration paid in any medium other than cash.

16  The reasonable cash value of remuneration in any medium other

17  than cash shall be estimated and determined in accordance with

18  rules prescribed by the division.  After January 1, 1986, the

19  term "wages" includes tips or gratuities which are received

20  while performing services which constitute employment and are

21  included in a written statement furnished to the employer

22  pursuant to s. 6053(a) of the Internal Revenue Code of 1954.

23         (b)  "Wages" does not include:

24         1.  That part of remuneration which, after remuneration

25  equal to $6,000 prior to January 1, 1983, and $7,000 after

26  December 31, 1982, has been paid in a calendar year to an

27  individual by an employer or his or her predecessor with

28  respect to employment during any calendar year, is paid to

29  such individual by such employer during such calendar year,

30  unless that part of the remuneration is subject to a tax,

31  under a federal law imposing the tax, against which credit may

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  1  be taken for contributions required to be paid into a state

  2  unemployment fund.  For the purposes of this subsection, the

  3  term "employment" includes services constituting employment

  4  under any employment security law of another state or of the

  5  Federal Government.

  6         2.  The amount of any payment, with respect to services

  7  performed, to, or on behalf of, an individual in its employ

  8  under a plan or system established by an employing unit which

  9  makes provision for individuals in its employ generally or for

10  a class or classes of such individuals, including any amount

11  paid by an employing unit for insurance or annuities, or into

12  a fund, to provide for any such payment, on account of:

13         a.  Sickness or accident disability, but, in the case

14  of payments made to an employee or any of his or her

15  dependents, this subparagraph shall exclude from the term

16  "wages" only those payments received under a workers'

17  compensation law.

18         b.  Medical and hospitalization expenses in connection

19  with sickness or accident disability.

20         c.  Death, provided the individual in its employ:

21         (I)  Has not the option to receive, instead of

22  provision for such death benefit, any part of such payment or,

23  if such death benefit is insured, any part of the premiums, or

24  contributions to premiums, paid by his or her employing unit;

25  and

26         (II)  Has not the right, under the provisions of the

27  plan or system or policy of insurance providing for such death

28  benefit, to assign such benefit or to receive cash

29  consideration in lieu of such benefit either upon his or her

30  withdrawal from the plan or system providing for such benefit

31

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  1  or upon termination of such plan or system or policy of

  2  insurance or of his or her services with such employing unit.

  3         3.  The amount of any payment on account of sickness or

  4  accident disability, or medical or hospitalization expenses in

  5  connection with sickness or accident disability, made by an

  6  employing unit to, or on behalf of, an individual performing

  7  services for it after the expiration of 6 calendar months

  8  following the last calendar month in which the individual

  9  performed services for such employing unit.

10         4.  The payment by an employing unit, without deduction

11  from the remuneration of the individual in its employ, of the

12  tax imposed upon an individual in its employ under s. 3101 of

13  the federal Internal Revenue Code with respect to services

14  performed.

15         5.  The value of:

16         a.  Meals furnished to an employee or the employee's

17  spouse or dependents by the employer on the business premises

18  of the employer for the convenience of the employer; or

19         b.  Lodging furnished to an employee or the employee's

20  spouse or dependents by the employer on the business premises

21  of the employer for the convenience of the employer when such

22  lodging is included as a condition of employment.

23         6.  The amount of any payment made by an employing unit

24  to, or on behalf of, an individual performing services for it

25  or a beneficiary of such individual:

26         a.  From or to a trust described in s. 401(a) of the

27  Internal Revenue Code of 1954 which is exempt from tax under

28  s. 501(a) at the time of such payment unless such payment is

29  made to an employee of the trust as remuneration for services

30  rendered as such employee and not as a beneficiary of the

31  trust;

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  1         b.  Under or to an annuity plan which, at the time of

  2  such payment, is a plan described in s. 403(a) of the Internal

  3  Revenue Code of 1954;

  4         c.  Under a simplified employee pension if, at the time

  5  of the payment, it is reasonable to believe that the employee

  6  will be entitled to a deduction under s. 219(b)(2) of the

  7  Internal Revenue Code of 1954 for such payment;

  8         d.  Under or to an annuity contract described in s.

  9  403(b) of the Internal Revenue Code of 1954, other than a

10  payment for the purchase of such contract which is made by

11  reason of a salary reduction agreement, whether evidenced by a

12  written instrument or otherwise;

13         e.  Under or to an exempt governmental deferred

14  compensation plan as described in s. 3121(v)(3) of the

15  Internal Revenue Code of 1954; or

16         f.  To supplement pension benefits under a plan or

17  trust described in any of the foregoing provisions of this

18  subparagraph to take into account some portion or all of the

19  increase in the cost of living, as determined by the United

20  States Secretary of Labor, since retirement, but only if such

21  supplemental payments are under a plan which is treated as a

22  welfare plan under s. 3(2)(B)(ii) of the Employee Retirement

23  Income Security Act of 1974.

24         g.  Under a cafeteria plan, within the meaning of s.

25  125 of the Internal Revenue Code of 1986, as amended, if such

26  payment would not be treated as wages without regard to such

27  plan and it is reasonable to believe that, if s. 125 of the

28  Internal Revenue Code of 1986, as amended, applied for

29  purposes of this section, s. 125 of the Internal Revenue Code

30  of 1986, as amended, would not treat any wages as

31  constructively received.

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  1         (41)(34)  WEEK.--"Week" means such period of 7

  2  consecutive days as the division may by rule prescribe.  The

  3  division may by rule prescribe that a week shall be deemed to

  4  be "in," "within," or "during" that benefit year which

  5  includes the greater part of such week.

  6         (42)(35)  HIGH QUARTER.--"High quarter" means that

  7  quarter in the base period in which the claimant had the

  8  greatest amount of wages paid, regardless of the number of

  9  employers paying wages in that quarter.

10         (43)(36)  VOLUNTARY CONTRIBUTION.--"Voluntary

11  contribution" means any payment made to the Unemployment

12  Compensation Trust Fund in excess of any payments required

13  under this chapter.

14         Section 4.  Section 443.091, Florida Statutes, is

15  amended to read:

16         443.091  Benefit eligibility conditions.--

17         (1)  An unemployed individual shall be eligible to

18  receive benefits with respect to any week only if the division

19  finds that:

20         (a)  She or he has made a claim for benefits with

21  respect to such week in accordance with such rules as the

22  division may prescribe.

23         (b)  She or he has registered for work at, and

24  thereafter continued to report at, the division, which shall

25  be responsible for notification of the Division of Jobs and

26  Benefits Florida State Employment Service in accordance with

27  such rules as the division may prescribe; except that the

28  division may, by rule not inconsistent with the purposes of

29  this law, waive or alter either or both of the requirements of

30  this subsection as to individuals attached to regular jobs;

31  but no such rule shall conflict with s. 443.111(1).

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  1         (c)1.  She or he is able to work and is available for

  2  work. In order to assess eligibility for a claimed week of

  3  unemployment, the division shall develop criteria to determine

  4  a claimant's ability to work and availability for work.

  5         2.  Notwithstanding any other provisions in this

  6  section, no otherwise eligible individual shall be denied

  7  benefits for any week because she or he is in training with

  8  the approval of the division, nor shall such individual be

  9  denied benefits with respect to any week in which she or he is

10  in training with the approval of the division by reason of the

11  application of provisions in subparagraph 1. relating to

12  availability for work, or the provisions of s. 443.101(2)

13  relating to failure to apply for, or refusal to accept,

14  suitable work. Training may be approved by the division in

15  accordance with criteria prescribed by rule. A claimant's

16  eligibility during approved training is contingent upon

17  satisfying eligibility conditions prescribed by rule.

18         3.  Notwithstanding any other provision of this

19  chapter, an individual who is in training approved under s.

20  236(a)(1) of the Trade Act of 1974, as amended, may not be

21  determined to be ineligible or disqualified for benefits with

22  respect to her or his enrollment in such training or because

23  of leaving work which is not suitable employment to enter such

24  training.  For the purposes of this subparagraph, the term

25  "suitable employment" means, with respect to a worker, work of

26  a substantially equal or higher skill level than the worker's

27  past adversely affected employment, as defined for purposes of

28  the Trade Act of 1974, as amended, the wages for which are not

29  less than 80 percent of the worker's average weekly wage as

30  determined for purposes of the Trade Act of 1974, as amended.

31

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  1         4.  Notwithstanding any other provision of this

  2  section, an otherwise eligible individual shall not be denied

  3  benefits for any week by reason of the application of

  4  subparagraph 1. because she or he is before any court of the

  5  United States or any state pursuant to a lawfully issued

  6  summons to appear for jury duty.

  7         (d)  She or he participates in reemployment services,

  8  such as job search assistance services, whenever the

  9  individual has been determined, pursuant to a profiling system

10  established by rule of the division, to be likely to exhaust

11  regular benefits and to be in need of reemployment services.

12         (e)  She or he has been unemployed for a waiting period

13  of 1 week. No week shall be counted as a week of unemployment

14  for the purposes of this subsection:

15         1.  Unless it occurs within the benefit year which

16  includes the week with respect to which she or he claims

17  payment of benefits.

18         2.  If benefits have been paid with respect thereto.

19         3.  Unless the individual was eligible for benefits

20  with respect thereto as provided in this section and s.

21  443.101 except for the requirements of this subsection and of

22  s. 443.101(5).

23         (f)  She or he has been paid wages for insured work

24  equal to 1.5 times her or his high quarter wages during her or

25  his base period, except that an unemployed individual is not

26  eligible to receive benefits if the base period wages are less

27  than $3,400. As amended by this act, this paragraph applies

28  only to benefit years beginning on or after July 1, 1996.

29         (2)  No individual may receive benefits in a benefit

30  year unless, subsequent to the beginning of the next preceding

31  benefit year during which she or he received benefits, she or

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  1  he performed service, whether or not in employment as defined

  2  in s. 443.036, and earned remuneration for such service in an

  3  amount equal to not less than 3 times her or his weekly

  4  benefit amount as determined for her or his current benefit

  5  year.

  6         (3)  Benefits based on service in employment defined in

  7  s. 443.036(19)(b) and (c) shall be payable in the same amount,

  8  on the same terms, and subject to the same conditions as

  9  benefits payable on the basis of other service subject to this

10  chapter, except that:

11         (a)  Benefits shall not be paid based on services in an

12  instructional, research, or principal administrative capacity

13  for an educational institution or an institution of higher

14  education for any week of unemployment commencing during the

15  period between 2 successive academic years; during a similar

16  period between two regular terms, whether or not successive;

17  or during a period of paid sabbatical leave provided for in

18  the individual's contract, to any individual, if such

19  individual performs such services in the first of such

20  academic years or terms and there is a contract or a

21  reasonable assurance that such individual will perform

22  services in any such capacity for any educational institution

23  or institution of higher education in the second of such

24  academic years or terms.

25         (b)  Benefits shall not be based on services in any

26  other capacity for an educational institution or an

27  institution of higher education to any individual for any week

28  which commences during a period between 2 successive academic

29  years or terms if such individual performs such services in

30  the first of the academic years or terms and there is a

31  reasonable assurance that such individual will perform such

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  1  services in the second of the academic years or terms; except

  2  that, if compensation is denied to any individual under this

  3  paragraph and such individual was not offered an opportunity

  4  to perform such services for the educational institution for

  5  the second of such academic years or terms, that individual

  6  shall be entitled to a retroactive payment of compensation for

  7  each week for which the individual filed a timely claim for

  8  compensation and for which compensation was denied solely by

  9  reason of this paragraph.

10         (c)  Benefits shall not be paid to any individual for

11  any week which commences during an established and customary

12  vacation period or holiday recess if such individual performs

13  any services described in paragraph (a) or paragraph (b) in

14  the period immediately before such vacation period or holiday

15  recess and there is a reasonable assurance that such

16  individual will perform any such service in the period

17  immediately following such vacation period or holiday recess.

18         (d)  Benefits shall not be payable on the basis of

19  services in any such capacities as specified in paragraphs

20  (a), (b), and (c) to any individual who performed such

21  services in an educational institution while in the employ of

22  a governmental agency or governmental entity which is

23  established and operated exclusively for the purpose of

24  providing such services to one or more educational

25  institutions.

26         (e)  Benefits shall not be payable on the basis of

27  services in any such capacities as specified in paragraphs

28  (a), (b), (c), and (d) to any individual who provided such

29  services to or on behalf of an educational institution, or an

30  institution of higher education.

31

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  1         (f)  As used in this subsection, the term "fixed

  2  contract" means a written agreement of employment for a

  3  specified period of time, and the term "continuing contract"

  4  means a written agreement that is automatically renewed until

  5  terminated by one of the parties to the contract.

  6         (4)  In the event of national emergency, in the course

  7  of which the Federal Emergency Unemployment Payment Plan is,

  8  at the request of the Governor, invoked for all or any part of

  9  the state, such plan shall supersede the procedures prescribed

10  by this chapter, and by rules adopted hereunder, and the

11  division shall act as the Florida agency for the United States

12  Department of Labor in the administration of such plan.

13         (5)  Benefits shall not be paid to any individual on

14  the basis of any service, 90 percent or more substantially all

15  of which consists of participating in sports or athletic

16  events or training, or preparing to so participate, for any

17  week which commences during the period between two successive

18  sport seasons (or similar periods) if such individual

19  performed such service in the first of such seasons (or

20  similar periods) and there is a reasonable assurance that such

21  individual will perform such services in the later of such

22  seasons (or similar periods).

23         (6)  With respect to weeks of unemployment beginning on

24  or after January 1, 1978, wages for insured work shall include

25  wages paid for previously uncovered services.  For the

26  purposes of this subsection, except to the extent that

27  assistance under Title II of the Emergency Jobs and

28  Unemployment Assistance Act of 1974 was paid on the basis of

29  such services, the term "previously uncovered services" means

30  services:

31

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  1         (a)  Which were not employment as defined in this

  2  chapter prior to January 1, 1978, and were not services

  3  covered pursuant to s. 443.121(3) at any time during the

  4  1-year period ending December 31, 1975; and

  5         (b)  Which are:

  6         1.  Agricultural labor or domestic service as defined

  7  in s. 443.036; or

  8         2.  Services performed by an employee of this state or

  9  a political subdivision thereof, as provided in s.

10  443.036(19)(b), or by an employee of a nonprofit educational

11  institution which is not an institution of higher education.

12         (7)  Benefits paid to any individual whose base period

13  wages include wages for previously uncovered services, as

14  defined in subsection (6), shall not be charged to the

15  employer or the employer's experience rating account, to the

16  extent that such individual would not have been eligible to

17  receive such compensation had the state not provided for

18  payment of compensation on the basis of such previously

19  uncovered services, and provided benefits shall be paid for

20  such previously uncovered service only to the extent that the

21  division determines that the unemployment compensation fund

22  may be reimbursed for such benefits pursuant to Pub. L. No.

23  94-566, s. 121.

24         Section 5.  Paragraph (g) of subsection (3) and

25  paragraph (d) of subsection (5) of section 443.131, Florida

26  Statutes, are amended to read:

27         443.131  Contributions.--

28         (3)  CONTRIBUTION RATES BASED ON BENEFIT EXPERIENCE.--

29         (g)1.  For the purposes of this subsection, two or more

30  employers who are parties to a transfer of business or the

31  subject of a merger, consolidation, or other form of

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  1  reorganization, effecting a change in legal identity or form,

  2  shall be deemed to be a single employer and shall be

  3  considered as one employer with a continuous employment record

  4  if the division finds that the successor employer continues to

  5  carry on the employing enterprises of the predecessor employer

  6  or employers and that the successor employer has paid all

  7  contributions required of and due from the predecessor

  8  employer or employers and has assumed liability for all

  9  contributions that may become due from the predecessor

10  employer or employers. As used in this paragraph, the term

11  "contributions" means all indebtedness to the division,

12  including, but not limited to, interest, penalty, collection

13  fee, and service fee. A successor has 30 days from the date of

14  the official notification of liability by succession to accept

15  the transfer of the predecessor's or predecessors' employment

16  record or records. If the predecessor or predecessors have

17  unpaid contributions or outstanding quarterly reports, the

18  successor has 30 days from the date of the notice listing the

19  total amount due to pay the total amount with certified funds.

20  After the total indebtedness has been paid, the employment

21  record or records of the predecessor or predecessors will be

22  transferred to the successor. Employment records may be

23  transferred by the division. The tax rate of total successor

24  and predecessor upon the transfer of employment records shall

25  be determined by the division as prescribed by rule in order

26  to calculate any tax rate change resulting from the transfer

27  of employment records.

28         2.  Whether or not there is a transfer of employment

29  record as contemplated in this paragraph, the predecessor

30  shall in the event he or she again employs persons be treated

31  as an employer without previous employment record or, if his

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  1  or her coverage has been terminated as provided in s. 443.121,

  2  as a new employing unit.

  3         3.  The division may provide by rule for partial

  4  transfer of experience rating when an employer has transferred

  5  at any time an identifiable and segregable portion of his or

  6  her payrolls and business to a successor employing unit. As a

  7  condition of such partial transfer of experience, the rules

  8  shall require an application by the successor, agreement by

  9  the predecessor, and such evidence as the division may

10  prescribe of the experience and payrolls attributable to the

11  transferred portion up to the date of transfer. The rules

12  shall provide that the successor employing unit, if not

13  already an employer, shall become an employer as of the date

14  of the transfer and that the experience of the transferred

15  portion of the predecessor's account shall be removed from the

16  experience-rating record of the predecessor, and for each

17  calendar year following the date of the transfer of the

18  employment record on the books of the division, the division

19  shall compute the rate of contribution payable by the

20  successor on the basis of his or her experience, if any,

21  combined with the experience of the portion of the record

22  transferred. The rules may also provide what rates shall be

23  payable by the predecessor and successor employers for the

24  period between the date of the transfer of the employment

25  record of the transferred unit on the books of the division

26  and the first day of the next calendar year.

27         4.  This paragraph shall not apply to the employee

28  leasing company and client contractual agreement as defined in

29  s. 443.036. The client shall, in the event of termination of

30  the contractual agreement or failure by the employee leasing

31  company to submit reports or pay contributions as required by

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  1  the division, be treated as a new employer without previous

  2  employment record unless otherwise eligible for a rate

  3  computation.

  4         (5)  FINANCING BENEFITS PAID TO EMPLOYEES OF THE STATE

  5  AND POLITICAL SUBDIVISIONS OF THE STATE.--Benefits paid to

  6  employees of this state or any instrumentality of this state,

  7  or to employees of any political subdivision of this state or

  8  any instrumentality thereof, based upon service defined in s.

  9  443.036(19)(b), shall be financed in accordance with this

10  subsection.

11         (d)  Upon establishing a financing method as provided

12  by this subsection, such financing method shall be applicable

13  for not less than 2 calendar years.  Nothing herein shall be

14  construed to prevent an employer subject to the provisions of

15  this subsection from electing to change its method of

16  financing or its method of reporting after completing 2

17  calendar years under another financing method, so long as such

18  new election is timely filed. The division may prescribe by

19  rule the procedures for changing methods of reporting.

20         Section 6.  Paragraph (b) of subsection (1) of section

21  443.141, Florida Statutes, is amended and paragraph (c) is

22  added to that subsection to read:

23         443.141  Collection of contributions.--

24         (1)  PAST DUE CONTRIBUTIONS.--

25         (b)  Penalty for delinquent reports.--

26         1.  Any employing unit which fails to file any reports

27  required by the division in the administration of this

28  chapter, in accordance with rules adopted by the division,

29  shall pay to the division with respect to each such report the

30  sum of $25 for each 30 days or fraction thereof that such

31  employing unit is delinquent, unless the division finds that

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  1  such employing unit has or had good reason for failure to file

  2  such report or reports.

  3         2.  Sums collected as penalties under the provisions of

  4  subparagraph 1. shall be deposited by the division in the

  5  Special Employment Security Administration Trust Fund.

  6         3.  A waiver of penalty and interest for delinquent

  7  reports may be authorized where impositions of interest or a

  8  penalty would be inequitable.

  9         (c)  Application of partial payments.--When a

10  delinquency exists in the account of an employer not in

11  bankruptcy, and payment in an amount less than the total

12  delinquency is submitted, the division shall apply such

13  partial payment as the payer directs. In the absence of

14  specific direction, the division shall apply the partial

15  payment to the payer's account as prescribed by rule.

16         Section 7.  Subsection (2) of section 443.151, Florida

17  Statutes, is amended to read:

18         443.151  Procedure concerning claims.--

19         (2)  FILING OF CLAIM INVESTIGATIONS; NOTIFICATION OF

20  CLAIMANTS AND EMPLOYERS.--Claims for benefits shall be made in

21  accordance with such rules as the division may adopt

22  prescribe. The division shall notify claimants and employers

23  regarding monetary and nonmonetary determinations of

24  eligibility. Investigations of issues raised in connection

25  with a claimant which may affect a claimant's eligibility for

26  benefits or charges to an employer's account shall be

27  conducted by the division as prescribed by rule.

28         Section 8.  Subsection (5) is added to section 450.121,

29  Florida Statutes, to read:

30         450.121  Enforcement of Child Labor Law.--

31         (5)  The division may adopt rules:

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  1         (a)  Defining words, phrases, or terms used in the

  2  child labor rule or in this part, as long as the word, phrase,

  3  or term is not a word, phrase, or term defined in s. 450.012.

  4         (b)  Prescribing additional documents that may be used

  5  to prove the age of a minor and the procedure to be followed

  6  before a person who claims his or her disability of nonage has

  7  been removed by a court of competent jurisdiction may be

  8  employed.

  9         (c)  Requiring certain safety equipment and a safe work

10  place environment for employees who are minors.

11         (d)  Prescribing the deadlines applicable to a response

12  to a request for records under subsection (2).

13         (e)  Providing an official address from which child

14  labor forms, rules, laws, and posters may be requested and

15  prescribing the forms to be used in connection with this part.

16         Section 9.  Subsection (8) is added to section 450.30,

17  Florida Statutes, to read:

18         450.30  Requirement of certificate of registration;

19  education and examination program.--

20         (8)  The division may adopt rules prescribing the

21  procedures to be followed to register as a farm labor

22  contractor.

23         Section 10.  Subsection (5) of section 450.33, Florida

24  Statutes, is amended to read:

25         450.33  Duties of farm labor contractor.--Every farm

26  labor contractor must:

27         (5)  Take out a policy of insurance with any insurance

28  carrier which policy insures such registrant against liability

29  for damage to persons or property arising out of the operation

30  or ownership of any vehicle or vehicles for the transportation

31  of individuals in connection with his or her business,

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  1  activities, or operations as a farm labor contractor.  In no

  2  event may the amount of such liability insurance be less than

  3  that required by the provisions of the financial

  4  responsibility law of this state. Any insurance carrier that

  5  is licensed to operate in this state and that has issued a

  6  policy of liability insurance to operate a vehicle used to

  7  transport farm workers shall notify the division when it

  8  intends to cancel such policy.

  9         Section 11.  Subsection (2) of section 450.38, Florida

10  Statutes, is amended to read:

11         450.38  Enforcement of farm labor contractor laws.--

12         (2)  Any person who, on or after June 19, 1985, commits

13  a violation of this part or of any rule adopted thereunder may

14  be assessed a civil penalty of not more than $1,000 for each

15  such violation. Such assessed penalties shall be paid in cash,

16  certified check, or money order and shall be deposited into

17  the General Revenue Fund. The division shall not institute or

18  maintain any administrative proceeding to assess a civil

19  penalty under this subsection when the violation is the

20  subject of a criminal indictment or information under this

21  section which results in a criminal penalty being imposed, or

22  of a criminal, civil, or administrative proceeding by the

23  United States government or an agency thereof which results in

24  a criminal or civil penalty being imposed. The division may

25  adopt rules prescribing the criteria to be used to determine

26  the amount of the civil penalty and to provide notification to

27  persons assessed a civil penalty under this section.

28         Section 12.  This act shall take effect upon becoming a

29  law.

30

31

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1708

  3

  4  This committee substitute is the Department of Labor and
    Employment Security's rule authorizing bill, and authorizes
  5  the Division of Blind Services to adopt rules and forms
    related to vocational rehabilitation services and the
  6  establishment of vending facilities programs.  This committee
    substitute also defines and clarifies specific terms relating
  7  to the administration of unemployment compensation, and
    authorizes the Division of Unemployment Compensation to
  8  develop criteria to determine a claimants ability to work and
    availability for work.  The committee substitute further
  9  authorizes the Division of Unemployment Compensation to
    approve training in accordance with criteria prescribed by
10  rule; to adopt rules regarding total succession; to adopt by
    rule procedures for changing methods of reporting; to develop
11  by rule application of partial payments; and to adopt rules
    regarding monetary and nonmonetary investigations.  This
12  committee substitute requires any insurance carrier that is
    licensed to operate in this state and that has issued a policy
13  of liability insurance to operate a vehicle used to transport
    farm workers to notify the division when it intends to cancel
14  such policy.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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