Senate Bill sb1652

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                  SB 1652

    By Senator King





    8-492B-05

  1                      A bill to be entitled

  2         An act relating to unemployment compensation;

  3         amending s. 120.80, F.S.; exempting proceedings

  4         conducted by special deputies under chapter

  5         443, F.S., from uniform rules of procedure;

  6         amending s. 443.071, F.S.; prohibiting

  7         establishing a fictitious employing unit for

  8         the purpose of receiving unemployment benefits;

  9         describing those acts that constitute prima

10         facie evidence of establishing a personal

11         benefit account and of claiming and receiving

12         unemployment benefits; providing penalties;

13         providing for access to certain investigative

14         records; amending s. 443.091, F.S.; revising

15         certain conditions of benefit eligibility;

16         amending s. 443.1216, F.S.; clarifying powers

17         of employee leasing companies in leasing

18         officers and other workers to clients;

19         restating types of employment exempt from

20         coverage under chapter 443, F.S.; amending s.

21         443.1217, F.S.; providing applicability of

22         guidelines for determining those wages subject

23         to chapter 443, F.S.; amending s. 443.131,

24         F.S.; redefining the term "total excess

25         payments"; prescribing guidelines for

26         transferring unemployment experience upon

27         transfer or acquisition of a business;

28         providing penalties for unlawful acts related

29         to such transfer; amending s. 443.1317, F.S.;

30         providing for an official seal for the Agency

31         for Workforce Innovation; amending s. 443.151,

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         F.S.; prescribing procedures with respect to

 2         untimely appeals; amending s. 895.02, F.S.;

 3         redefining the term "racketeering activity,"

 4         for purposes of the criminal statutes

 5         pertaining to that offense, to include creation

 6         of fictitious employer schemes to commit

 7         unemployment compensation fraud; providing

 8         effective dates.

 9  

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

11  

12         Section 1.  Paragraph (b) of subsection (10) of section

13  120.80, Florida Statutes, is amended to read:

14         120.80  Exceptions and special requirements;

15  agencies.--

16         (10)  AGENCY FOR WORKFORCE INNOVATION.--

17         (b)  Notwithstanding s. 120.54(5), the uniform rules of

18  procedure do not apply to appeal proceedings conducted under

19  chapter 443 by the Unemployment Appeals Commission, special

20  deputies, or unemployment appeals referees.

21         Section 2.  Present subsection (4) of section 443.071,

22  Florida Statutes, is renumbered as subsection (5) and amended,

23  and a new subsection (4) and subsections (6), (7), and (8) are

24  added to that section, to read:

25         443.071  Penalties.--

26         (4)  Any person who establishes a fictitious employing

27  unit and submits to the Agency for Workforce Innovation or its

28  tax collection service provider fraudulent employing unit

29  records or tax or wage reports by:

30         (a)  Introducing fraudulent records into a computer

31  system;

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         (b)  Using computer facilities without authorization;

 2         (c)  Intentionally or deliberately altering or

 3  destroying computerized information or files; or

 4         (d)  Stealing financial instruments, data, or other

 5  assets

 6  

 7  for the purpose of enabling herself or himself or any other

 8  person to receive benefits under this chapter to which the

 9  recipient is not entitled commits a felony of the third

10  degree, punishable as provided in s. 775.082, s. 775.083, or

11  s. 775.084.

12         (5)(4)  In any prosecution or action under this

13  section, the entry into evidence of the signature of a person

14  on a document, letter, or other writing constitutes prima

15  facie evidence of the person's identity if the following

16  conditions exist:

17         (a)  The document includes the person's person gives

18  her or his name, residence address, and home telephone number,

19  present or former place of employment, gender, date of birth,

20  social security number, height, weight, and race.

21         (b)  The signature of the person is witnessed by an

22  agent or employee of the Agency for Workforce Innovation or

23  its tax collection service provider at the time the document,

24  letter, or other writing is filed.

25         (6)  The entry into evidence of an application for

26  unemployment benefits initiated by the use of the Internet

27  Claims program or the interactive voice response system

28  telephone claims program of the Agency for Workforce

29  Innovation constitutes prima facie evidence of the

30  establishment of a personal benefit account by or for an

31  individual if the following information is provided: the

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  applicant's name, residence address, date of birth, social

 2  security number, and present or former place of employment.

 3         (7)  The entry into evidence of a transaction history

 4  generated by a personal identification number establishing

 5  that a certification or claim for a week or weeks of benefits

 6  was made against the benefit account of the individual

 7  together with documentation that payment was paid by a state

 8  warrant made to the order of the person or by direct deposit

 9  via electronic benefit transfer constitutes prima facie

10  evidence that the person claimed and received unemployment

11  benefits from the state.

12         (8)  All records relating to investigations of

13  unemployment fraud in the custody of the Agency for Workforce

14  Innovation are available for examination by the Department of

15  Law Enforcement, the state attorney, or the Office of the

16  Statewide Prosecutor in the prosecution of offenses under s.

17  817.568, criminal use of personal identification information,

18  or in proceedings brought under this chapter.

19         Section 3.  Paragraph (c) of subsection (1) of section

20  443.091, Florida Statutes, is amended to read:

21         443.091  Benefit eligibility conditions.--

22         (1)  An unemployed individual is eligible to receive

23  benefits for any week only if the Agency for Workforce

24  Innovation finds that:

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

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

27  unemployment, the Agency for Workforce Innovation shall

28  develop criteria to determine a claimant's ability to work and

29  availability for work.

30         2.  Notwithstanding any other provision of this

31  paragraph or paragraphs (b) and (d) section, an otherwise

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  eligible individual may not be denied benefits for any week

 2  because she or he is in training with the approval of the

 3  Agency for Workforce Innovation, and such an individual may

 4  not be denied benefits for any week in which she or he is in

 5  training with the approval of the Agency for Workforce

 6  Innovation by reason of subparagraph 1. relating to

 7  availability for work, or s. 443.101(2) relating to failure to

 8  apply for, or refusal to accept, suitable work. Training may

 9  be approved by the Agency for Workforce Innovation in

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

11  eligibility during approved training is contingent upon

12  satisfying eligibility conditions prescribed by rule.

13         3.  Notwithstanding any other provision of this

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

15  236(a)(1) of the Trade Act of 1974, as amended, may not be

16  determined to be ineligible or disqualified for benefits with

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

18  of leaving work that is not suitable employment to enter such

19  training. As used in this subparagraph, the term "suitable

20  employment" means, for a worker, work of a substantially equal

21  or higher skill level than the worker's past adversely

22  affected employment, as defined for purposes of the Trade Act

23  of 1974, as amended, the wages for which are at least 80

24  percent of the worker's average weekly wage as determined for

25  purposes of the Trade Act of 1974, as amended.

26         4.  Notwithstanding any other provision of this

27  section, an otherwise eligible individual may not be denied

28  benefits for any week by reason of subparagraph 1. because she

29  or he is before any court of the United States or any state

30  under a lawfully issued summons to appear for jury duty.

31  

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         Section 4.  Paragraph (a) of subsection (1) and

 2  subsection (13) of section 443.1216, Florida Statutes, are

 3  amended to read:

 4         443.1216  Employment.--Employment, as defined in s.

 5  443.036, is subject to this chapter under the following

 6  conditions:

 7         (1)(a)  The employment subject to this chapter includes

 8  a service performed, including a service performed in

 9  interstate commerce, by:

10         1.  An officer of a corporation.

11         2.  An individual who, under the usual common-law rules

12  applicable in determining the employer-employee relationship,

13  is an employee. However, whenever a client, as defined in s.

14  443.036(18), which would otherwise be designated as an

15  employing unit has contracted with an employee leasing company

16  to supply it with workers, those workers are considered

17  employees of the employee leasing company. An employee leasing

18  company may lease corporate officers of the client to the

19  client and to other workers to the client, except as

20  prohibited by regulations of the Internal Revenue Service.

21  Employees of an employee leasing company must be reported

22  under the employee leasing company's tax identification number

23  and contribution rate for work performed for the employee

24  leasing company.

25         3.  An individual other than an individual who is an

26  employee under subparagraph 1. or subparagraph 2., who

27  performs services for remuneration for any person:

28         a.  As an agent-driver or commission-driver engaged in

29  distributing meat products, vegetable products, fruit

30  products, bakery products, beverages other than milk, or

31  laundry or drycleaning services for his or her principal.

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         b.  As a traveling or city salesperson engaged on a

 2  full-time basis in the solicitation on behalf of, and the

 3  transmission to, his or her principal of orders from

 4  wholesalers, retailers, contractors, or operators of hotels,

 5  restaurants, or other similar establishments for merchandise

 6  for resale or supplies for use in their business operations.

 7  This sub-subparagraph does not apply to an agent-driver or a

 8  commission-driver and does not apply to sideline sales

 9  activities performed on behalf of a person other than the

10  salesperson's principal.

11         4.  The services described in subparagraph 3. are

12  employment subject to this chapter only if:

13         a.  The contract of service contemplates that

14  substantially all of the services are to be performed

15  personally by the individual;

16         b.  The individual does not have a substantial

17  investment in facilities used in connection with the services,

18  other than facilities used for transportation; and

19         c.  The services are not in the nature of a single

20  transaction that is not part of a continuing relationship with

21  the person for whom the services are performed.

22         (13)  The following are employment is exempt from

23  coverage under this chapter:

24         (a)  Domestic service in a private home, local college

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

26  except as provided in subsection (6).

27         (b)  Service performed on or in connection with a

28  vessel or aircraft that is not an American vessel or American

29  aircraft, if the employee is employed on and in connection

30  with the vessel or aircraft while the vessel or aircraft is

31  outside the United States.

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         (c)  Service performed by an individual engaged in, or

 2  as an officer or member of the crew of a vessel engaged in,

 3  the catching, taking, harvesting, cultivating, or farming of

 4  any kind of fish, shellfish, crustacea, sponges, seaweeds, or

 5  other aquatic forms of animal and vegetable life, including

 6  service performed by an individual as an ordinary incident to

 7  engaging in those activities, except:

 8         1.  Service performed in connection with the catching

 9  or taking of salmon or halibut for commercial purposes.

10         2.  Service performed on, or in connection with, a

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

12  provided for determining the registered tonnage of merchant

13  vessels under the laws of the United States.

14         (d)  Service performed by an individual in the employ

15  of his or her son, daughter, or spouse, including step

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

17  under the age of 21 in the employ of his or her father,

18  mother, stepfather, or stepmother.

19         (e)  Service performed in the employ of the Federal

20  Government or of an instrumentality of the Federal Government

21  which is:

22         1.  Wholly or partially owned by the United States.

23         2.  Exempt from the tax imposed by s. 3301 of the

24  Internal Revenue Code under a federal law that specifically

25  cites s. 3301, or the corresponding section of prior law, in

26  granting the exemption. However, to the extent that the United

27  States Congress permits the state to require an

28  instrumentality of the Federal Government to make payments

29  into the Unemployment Compensation Trust Fund under this

30  chapter, this chapter applies to that instrumentality, and to

31  services performed for that instrumentality, in the same

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  manner, to the same extent, and on the same terms as other

 2  employers, employing units, individuals, and services. If this

 3  state is not certified for any year by the Secretary of Labor

 4  under s. 3304 of the federal Internal Revenue Code, the tax

 5  collection service provider shall refund the payments required

 6  of each instrumentality of the Federal Government for that

 7  year from the fund in the same manner and within the same

 8  period as provided in s. 443.141(6) for contributions

 9  erroneously collected.

10         (f)  Service performed in the employ of a public

11  employer as defined in s. 443.036, except as provided in

12  subsection (2), and service performed in the employ of an

13  instrumentality of a public employer as described in s.

14  443.036(35)(b) or (c), to the extent that the instrumentality

15  is immune under the United States Constitution from the tax

16  imposed by s. 3301 of the Internal Revenue Code for that

17  service.

18         (g)  Service performed in the employ of a corporation,

19  community chest, fund, or foundation that is organized and

20  operated exclusively for religious, charitable, scientific,

21  testing for public safety, literary, or educational purposes

22  or for the prevention of cruelty to children or animals. This

23  exemption does not apply to an employer if part of the

24  employer's net earnings inures to the benefit of any private

25  shareholder or individual or if a substantial part of the

26  employer's activities involve carrying on propaganda,

27  otherwise attempting to influence legislation, or

28  participating or intervening in, including the publishing or

29  distributing of statements, a political campaign on behalf of

30  a candidate for public office, except as provided in

31  subsection (3).

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         (h)  Service for which unemployment compensation is

 2  payable under an unemployment compensation system established

 3  by the United States Congress, of which this chapter is not a

 4  part.

 5         (i)1.  Service performed during a calendar quarter in

 6  the employ of an organization exempt from the federal income

 7  tax under s. 501(a) of the Internal Revenue Code, other than

 8  an organization described in s. 401(a), or under s. 521, if

 9  the remuneration for the service is less than $50.

10         2.  Service performed in the employ of a school,

11  college, or university, if the service is performed by a

12  student who is enrolled and is regularly attending classes at

13  the school, college, or university.

14         (j)  Service performed in the employ of a foreign

15  government, including service as a consular or other officer

16  or employee of a nondiplomatic representative.

17         (k)  Service performed in the employ of an

18  instrumentality wholly owned by a foreign government if:

19         1.  The service is of a character similar to that

20  performed in foreign countries by employees of the Federal

21  Government or of an instrumentality of the Federal Government;

22  and

23         2.  The United States Secretary of State certifies to

24  the United States Secretary of the Treasury that the foreign

25  government for whose instrumentality the exemption is claimed

26  grants an equivalent exemption for similar service performed

27  in the foreign country by employees of the Federal Government

28  and of instrumentalities of the Federal Government.

29         (l)  Service performed as a student nurse in the employ

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

31  who is enrolled and is regularly attending classes in a

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  nurses' training school chartered or approved under state law,

 2  service performed as an intern in the employ of a hospital by

 3  an individual who has completed a 4-year course in a medical

 4  school chartered or approved under state law, and service

 5  performed by a patient of a hospital for the hospital.

 6         (m)  Service performed by an individual for a person as

 7  an insurance agent or as an insurance solicitor, if all of the

 8  service performed by the individual for that person is

 9  performed for remuneration solely by way of commission, except

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

11  3306(c)(7) and (8). For purposes of this section, those

12  benefits excluded from the wages subject to this chapter under

13  s. 443.1217(2)(b)-(f), inclusive, are not considered

14  remuneration.

15         (n)  Service performed by an individual for a person as

16  a real estate salesperson or agent, if all of the service

17  performed by the individual for that person is performed for

18  remuneration solely by way of commission.

19         (o)  Service performed by an individual under the age

20  of 18 in the delivery or distribution of newspapers or

21  shopping news, excluding delivery or distribution to any point

22  for subsequent delivery or distribution.

23         (p)  Service covered by an arrangement between the

24  Agency for Workforce Innovation, or its tax collection service

25  provider, and the agency charged with the administration of

26  another state or federal unemployment compensation law under

27  which all services performed by an individual for an employing

28  unit during the period covered by the employing unit's duly

29  approved election is deemed to be performed entirely within

30  the other agency's state or under the federal law.

31  

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         (q)  Service performed by an individual enrolled at a

 2  nonprofit or public educational institution that normally

 3  maintains a regular faculty and curriculum and normally has a

 4  regularly organized body of students in attendance at the

 5  place where its educational activities are carried on, if the

 6  institution certifies to the employer that the individual is a

 7  student in a full-time program, taken for credit at the

 8  institution that combines academic instruction with work

 9  experience, and that the service is an integral part of the

10  program. This paragraph does not apply to service performed in

11  a program established for or on behalf of an employer or group

12  of employers.

13         (r)  Service performed by an individual for a person as

14  a barber, if all of the service performed by the individual

15  for that person is performed for remuneration solely by way of

16  commission.

17         (s)  Casual labor not in the course of the employer's

18  trade or business.

19         (t)  Service performed by a speech therapist,

20  occupational therapist, or physical therapist who is

21  nonsalaried and working under a written contract with a home

22  health agency as defined in s. 400.462.

23         (u)  Service performed by a direct seller. As used in

24  this paragraph, the term "direct seller" means a person:

25         1.a.  Who is engaged in the trade or business of

26  selling or soliciting the sale of consumer products to buyers

27  on a buy-sell basis, on a deposit-commission basis, or on a

28  similar basis, for resale in the home or in another place that

29  is not a permanent retail establishment; or

30  

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         b.  Who is engaged in the trade or business of selling

 2  or soliciting the sale of consumer products in the home or in

 3  another place that is not a permanent retail establishment;

 4         2.  Substantially all of whose remuneration for

 5  services described in subparagraph 1., regardless of whether

 6  paid in cash, is directly related to sales or other output,

 7  rather than to the number of hours worked; and

 8         3.  Who performs the services under a written contract

 9  with the person for whom the services are performed, if the

10  contract provides that the person will not be treated as an

11  employee for those services for federal tax purposes.

12         (v)  Service performed by a nonresident alien for the

13  period he or she is temporarily present in the United States

14  as a nonimmigrant under subparagraph (F) or subparagraph (J)

15  of s. 101(a)(15) of the Immigration and Nationality Act, and

16  which is performed to carry out the purpose specified in

17  subparagraph (F) or subparagraph (J), as applicable.

18         (w)  Service performed by an individual for

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

20  service, if the individual:

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

22  or messenger service and the delivery or messenger service

23  does not have control over when the individual works;

24         2.  Is remunerated for each delivery, or the

25  remuneration is based on factors that relate to the work

26  performed, including receipt of a percentage of any rate

27  schedule;

28         3.  Pays all expenses, and the opportunity for profit

29  or loss rests solely with the individual;

30         4.  Is responsible for operating costs, including fuel,

31  repairs, supplies, and motor vehicle insurance;

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         5.  Determines the method of performing the service,

 2  including selection of routes and order of deliveries;

 3         6.  Is responsible for the completion of a specific job

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

 5         7.  Enters into a contract with the delivery or

 6  messenger service which specifies that the individual is an

 7  independent contractor and not an employee of the delivery or

 8  messenger service; and

 9         8.  Provides the vehicle used to perform the service.

10         (x)  Service performed in agricultural labor by an

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

12  perform service in agricultural labor under ss. 101(a)(15)(H)

13  and 214(c) of the Immigration and Nationality Act.

14         (y)  Service performed by a person who is an inmate of

15  a penal institution.

16         Section 5.  Subsection (2) of section 443.1217, Florida

17  Statutes, is amended to read:

18         443.1217  Wages.--

19         (2)  For purposes of determining an employer's

20  contributions, the following wages are exempt from this

21  chapter:

22         (a)  That part of remuneration paid to an individual by

23  an employer for employment during a calendar year in excess of

24  the first $7,000 of remuneration paid to the individual by the

25  employer or his or her predecessor during that calendar year,

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

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

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

29  unemployment fund. As used in this section only, the term

30  "employment" includes services constituting employment under

31  

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  any employment security law of another state or of the Federal

 2  Government.

 3         (b)  Payment by an employing unit with respect to

 4  services performed for, or on behalf of, an individual

 5  employed by the employing unit under a plan or system

 6  established by the employing unit which provides for payment

 7  to its employees generally or to a class of its employees,

 8  including any amount paid by the employing unit for insurance

 9  or annuities or paid into a fund on account of:

10         1.  Sickness or accident disability. When payment is

11  made to an employee or any of his or her dependents, this

12  subparagraph exempts from the wages subject to this chapter

13  only those payments received under a workers' compensation

14  law.

15         2.  Medical and hospitalization expenses in connection

16  with sickness or accident disability.

17         3.  Death, if the employee:

18         a.  Does not have the option to receive, in lieu of the

19  death benefit, part of the payment or, if the death benefit is

20  insured, part of the premiums or contributions to premiums

21  paid by his or her employing unit; and

22         b.  Does not have the right under the plan, system, or

23  policy providing the death benefit to assign the benefit or to

24  receive cash consideration in lieu of the benefit upon his or

25  her withdrawal from the plan or system; upon termination of

26  the plan, system, or policy; or upon termination of his or her

27  services with the employing unit.

28         (c)  Payment on account of sickness or accident

29  disability, or payment of medical or hospitalization expenses

30  in connection with sickness or accident disability, by an

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

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  services for the employing unit more than 6 calendar months

 2  after the last calendar month the individual performed

 3  services for the employing unit.

 4         (d)  Payment by an employing unit, without deduction

 5  from the remuneration of an individual employed by the

 6  employing unit, of the tax imposed upon the individual under

 7  s. 3101 of the federal Internal Revenue Code for services

 8  performed.

 9         (e)  The value of:

10         1.  Meals furnished to an employee or the employee's

11  spouse or dependents by the employer on the business premises

12  of the employer for the convenience of the employer; or

13         2.  Lodging furnished to an employee or the employee's

14  spouse or dependents by the employer on the business premises

15  of the employer for the convenience of the employer when

16  lodging is included as a condition of employment.

17         (f)  Payment made by an employing unit to, or on behalf

18  of, an individual performing services for the employing unit

19  or a beneficiary of the individual:

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

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

22  s. 501(a) at the time of payment, unless payment is made to an

23  employee of the trust as remuneration for services rendered as

24  an employee of the trust and not as a beneficiary of the

25  trust;

26         2.  Under or to an annuity plan that, at the time of

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

28  Revenue Code of 1954;

29         3.  Under a simplified employee pension if, at the time

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

31  

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  entitled to a deduction under s. 219(b)(2) of the Internal

 2  Revenue Code of 1954 for the payment;

 3         4.  Under or to an annuity contract described in s.

 4  403(b) of the Internal Revenue Code of 1954, other than a

 5  payment for the purchase of an annuity contract as part of a

 6  salary reduction agreement, regardless of whether the

 7  agreement is evidenced by a written instrument or otherwise;

 8         5.  Under or to an exempt governmental deferred

 9  compensation plan described in s. 3121(v)(3) of the Internal

10  Revenue Code of 1954;

11         6.  To supplement pension benefits under a plan or

12  trust described in subparagraphs 1.-5. to account for some

13  portion or all of the increase in the cost of living, as

14  determined by the United States Secretary of Labor, since

15  retirement, but only if the supplemental payments are under a

16  plan that is treated as a welfare plan under s. 3(2)(B)(ii) of

17  the Employee Retirement Income Security Act of 1974; or

18         7.  Under a cafeteria plan, as defined in s. 125 of the

19  Internal Revenue Code of 1986, as amended, if the payment

20  would not be treated as wages without regard to such plan and

21  it is reasonable to believe that, if s. 125 of the Internal

22  Revenue Code of 1986, as amended, applied for purposes of this

23  section, s. 125 of the Internal Revenue Code of 1986, as

24  amended, would not treat any wages as constructively received.

25         (g)  Payment made, or benefit provided, by an employing

26  unit to or for the benefit of an individual performing

27  services for the employing unit or a beneficiary of the

28  individual if, at the time of such payment or provision of the

29  benefit, it is reasonable to believe that the individual may

30  exclude the payment or benefit from income under s. 127 of the

31  Internal Revenue Code of 1986, as amended.

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         Section 6.  Effective January 1, 2006, paragraph (e) of

 2  subsection (3) of section 443.131, Florida Statutes, is

 3  amended, present paragraphs (g), (h), (i), and (j) of that

 4  subsection, are redesignated as paragraphs (h), (i), (j), and

 5  (k), respectively, and a new paragraph (g) is added to that

 6  subsection to read:

 7         443.131  Contributions.--

 8         (3)  VARIATION OF CONTRIBUTION RATES BASED ON BENEFIT

 9  EXPERIENCE.--

10         (e)  Assignment of variations from the standard rate.--

11         1.  The tax collection service provider shall assign a

12  variation from the standard rate of contributions for each

13  calendar year to each eligible employer. In determining the

14  contribution rate, varying from the standard rate to be

15  assigned each employer, adjustment factors computed under

16  sub-subparagraphs a.-c. shall be added to the benefit ratio.

17  This addition shall be accomplished in two steps by adding a

18  variable adjustment factor and a final adjustment factor. The

19  sum of these adjustment factors computed under

20  sub-subparagraphs a.-c. shall first be algebraically summed.

21  The sum of these adjustment factors shall next be divided by a

22  gross benefit ratio determined as follows: Total benefit

23  payments for the 3-year period described in subparagraph (b)2.

24  shall be charged to employers eligible for a variation from

25  the standard rate, minus excess payments for the same period,

26  divided by taxable payroll entering into the computation of

27  individual benefit ratios for the calendar year for which the

28  contribution rate is being computed. The ratio of the sum of

29  the adjustment factors computed under sub-subparagraphs a.-c.

30  to the gross benefit ratio shall be multiplied by each

31  individual benefit ratio that is less than the maximum

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  contribution rate to obtain variable adjustment factors;

 2  except that in any instance in which the sum of an employer's

 3  individual benefit ratio and variable adjustment factor

 4  exceeds the maximum contribution rate, the variable adjustment

 5  factor shall be reduced in order that the sum equals the

 6  maximum contribution rate. The variable adjustment factor for

 7  each of these employers is multiplied by his or her taxable

 8  payroll entering into the computation of his or her benefit

 9  ratio. The sum of these products shall be divided by the

10  taxable payroll of the employers who entered into the

11  computation of their benefit ratios. The resulting ratio shall

12  be subtracted from the sum of the adjustment factors computed

13  under sub-subparagraphs a.-c. to obtain the final adjustment

14  factor. The variable adjustment factors and the final

15  adjustment factor shall be computed to five decimal places and

16  rounded to the fourth decimal place. This final adjustment

17  factor shall be added to the variable adjustment factor and

18  benefit ratio of each employer to obtain each employer's

19  contribution rate. An employer's contribution rate may not,

20  however, be rounded to less than 0.1 percent.

21         a.  An adjustment factor for noncharge benefits shall

22  be computed to the fifth decimal place and rounded to the

23  fourth decimal place by dividing the amount of noncharge

24  benefits during the 3-year period described in subparagraph

25  (b)2. by the taxable payroll of employers eligible for a

26  variation from the standard rate who have a benefit ratio for

27  the current year which is less than the maximum contribution

28  rate. For purposes of computing this adjustment factor, the

29  taxable payroll of these employers is the taxable payrolls for

30  the 3 years ending June 30 of the current calendar year as

31  reported to the tax collection service provider by September

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  30 of the same calendar year. As used in this

 2  sub-subparagraph, the term "noncharge benefits" means benefits

 3  paid to an individual from the Unemployment Compensation Trust

 4  Fund, but which were not charged to the employment record of

 5  any employer.

 6         b.  An adjustment factor for excess payments shall be

 7  computed to the fifth decimal place, and rounded to the fourth

 8  decimal place by dividing the total excess payments during the

 9  3-year period described in subparagraph (b)2. by the taxable

10  payroll of employers eligible for a variation from the

11  standard rate who have a benefit ratio for the current year

12  which is less than the maximum contribution rate. For purposes

13  of computing this adjustment factor, the taxable payroll of

14  these employers is the same figure used to compute the

15  adjustment factor for noncharge benefits under

16  sub-subparagraph a. As used in this sub-subparagraph, the term

17  "excess payments" means the amount of benefits charged to the

18  employment record of an employer during the 3-year period

19  described in subparagraph (b)2., less the product of the

20  maximum contribution rate and the employer's taxable payroll

21  for the 3 years ending June 30 of the current calendar year as

22  reported to the tax collection service provider by September

23  30 of the same calendar year. As used in this

24  sub-subparagraph, the term "total excess payments" means the

25  sum of the individual employer excess payments for those

26  employers that were eligible to be considered for assignment

27  of a contribution rate different a variation from the standard

28  rate.

29         c.  If the balance of the Unemployment Compensation

30  Trust Fund on June 30 of the calendar year immediately

31  preceding the calendar year for which the contribution rate is

                                  20

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  being computed is less than 3.7 percent of the taxable

 2  payrolls for the year ending June 30 as reported to the tax

 3  collection service provider by September 30 of that calendar

 4  year, a positive adjustment factor shall be computed. The

 5  positive adjustment factor shall be computed annually to the

 6  fifth decimal place and rounded to the fourth decimal place by

 7  dividing the sum of the total taxable payrolls for the year

 8  ending June 30 of the current calendar year as reported to the

 9  tax collection service provider by September 30 of that

10  calendar year into a sum equal to one-fourth of the difference

11  between the balance of the fund as of June 30 of that calendar

12  year and the sum of 4.7 percent of the total taxable payrolls

13  for that year. The positive adjustment factor remains in

14  effect for subsequent years until the balance of the

15  Unemployment Compensation Trust Fund as of June 30 of the year

16  immediately preceding the effective date of the contribution

17  rate equals or exceeds 3.7 percent of the taxable payrolls for

18  the year ending June 30 of the current calendar year as

19  reported to the tax collection service provider by September

20  30 of that calendar year. If the balance of the Unemployment

21  Compensation Trust Fund as of June 30 of the year immediately

22  preceding the calendar year for which the contribution rate is

23  being computed exceeds 4.7 percent of the taxable payrolls for

24  the year ending June 30 of the current calendar year as

25  reported to the tax collection service provider by September

26  30 of that calendar year, a negative adjustment factor shall

27  be computed. The negative adjustment factor shall be computed

28  annually to the fifth decimal place and rounded to the fourth

29  decimal place by dividing the sum of the total taxable

30  payrolls for the year ending June 30 of the current calendar

31  year as reported to the tax collection service provider by

                                  21

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  September 30 of the calendar year into a sum equal to

 2  one-fourth of the difference between the balance of the fund

 3  as of June 30 of the current calendar year and 4.7 percent of

 4  the total taxable payrolls of that year. The negative

 5  adjustment factor remains in effect for subsequent years until

 6  the balance of the Unemployment Compensation Trust Fund as of

 7  June 30 of the year immediately preceding the effective date

 8  of the contribution rate is less than 4.7 percent, but more

 9  than 3.7 percent of the taxable payrolls for the year ending

10  June 30 of the current calendar year as reported to the tax

11  collection service provider by September 30 of that calendar

12  year.

13         d.  The maximum contribution rate that may be assigned

14  to an employer is 5.4 percent, except employers participating

15  in an approved short-time compensation plan may be assigned a

16  maximum contribution rate that is 1 percent greater than the

17  maximum contribution rate for other employers in any calendar

18  year in which short-time compensation benefits are charged to

19  the employer's employment record.

20         2.  If the transfer of an employer's employment record

21  to an employing unit under paragraph (f) which, before the

22  transfer, was an employer, the tax collection service provider

23  shall recompute a benefit ratio for the successor employer

24  based on the combined employment records and reassign an

25  appropriate contribution rate to the successor employer

26  effective on the first day of the calendar quarter immediately

27  after the effective date of the transfer.

28         (g)  Transfer of unemployment experience upon transfer

29  or acquisition of a business.--Notwithstanding any other

30  provision of law, the following apply regarding assignment of

31  rates and transfers of experience:

                                  22

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         1.a.  If an employer transfers its trade or business,

 2  or a portion thereof, to another employer and, at the time of

 3  the transfer, there is any common ownership, management, or

 4  control of the two employers, the unemployment experience

 5  attributable to the transferred trade or business shall be

 6  transferred to the employer to whom such business is so

 7  transferred. The rates of both employers shall be recalculated

 8  and made effective as of the beginning of the calendar quarter

 9  immediately following the date of the transfer of trade or

10  business unless the transfer occurred on the first day of a

11  calendar quarter, in which case the rate shall be recalculated

12  as of that date.

13         b.  If, following a transfer of experience under

14  sub-subparagraph a., the Agency for Workforce Innovation or

15  the tax collection service provider determines that a

16  substantial purpose of the transfer of trade or business was

17  to obtain a reduced liability for contributions, the

18  experience rating account of the employers involved shall be

19  combined into a single account and a single rate assigned to

20  such account.

21         2.  Whenever a person who is not at the time an

22  employer under this chapter acquires the trade or business of

23  an employer, the unemployment experience of the acquired

24  business shall not be transferred to such person if the Agency

25  for Workforce Innovation or the tax collection service

26  provider finds that such person acquired the business solely

27  or primarily for the purpose of obtaining a lower rate of

28  contributions. Instead, such person shall be assigned the new

29  employer rate under paragraph (2)(a). In determining whether

30  the business was acquired solely or primarily for the purpose

31  of obtaining a lower rate of contributions, the tax collection

                                  23

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  service provider shall consider, but not be limited to, the

 2  following factors:

 3         a.  Whether the person continued the business

 4  enterprise of the acquired business;

 5         b.  How long such business enterprise was continued; or

 6         c.  Whether a substantial number of new employees was

 7  hired for performance of duties unrelated to the business

 8  activity conducted prior to acquisition.

 9         3.  If a person knowingly violates or attempts to

10  violate subparagraph 1. or subparagraph 2. or any other

11  provision of this chapter related to determining the

12  assignment of a contribution rate, or if a person knowingly

13  advises another person to violate the law, the person shall be

14  subject to the following penalties:

15         a.  If the person is an employer, such employer shall

16  be assigned the highest rate assignable under this chapter for

17  the rate year during which such violation or attempted

18  violation occurred and the 3 rate years immediately following

19  this rate year. However, if the person's business is already

20  at such highest rate for any year, or if the amount of

21  increase in the person's rate would be less than 2 percent for

22  such year, then a penalty rate of contributions of 2 percent

23  of taxable wages shall be imposed for such year.

24         b.  If the person is not an employer, such person shall

25  be subject to a civil penalty of not more than $5,000. The

26  procedures for the assessment of a penalty shall be in

27  accordance with the procedures set forth in s. 443.141(2) and

28  the provisions of s. 443.141(3) shall apply to the collection

29  of the penalty. Any such penalty shall be deposited in the

30  penalty and interest account established under s. 443.211(2).

31         4.  For purposes of this paragraph, the term:

                                  24

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         a.  "Knowingly" means having actual knowledge of or

 2  acting with deliberate ignorance or reckless disregard for the

 3  prohibition involved.

 4         b.  "Violates or attempts to violate" includes, but is

 5  not limited to, intent to evade, misrepresentation, or willful

 6  nondisclosure.

 7         c.  "Person" has the meaning given such term by s.

 8  7701(a)(1) of the Internal Revenue Code of 1986; and

 9         d.  "Trade or business" includes the employer's

10  workforce.

11         5.  In addition to the penalty imposed by subparagraph

12  3., any person who violates this paragraph commits a felony of

13  the third degree, punishable as provided in s. 775.082, s.

14  775.083, or s. 775.084.

15         6.  The Agency for Workforce Innovation and the tax

16  collection service provider shall establish procedures to

17  identify the transfer or acquisition of a business for

18  purposes of this paragraph and shall adopt any rules necessary

19  to administer this paragraph.

20         7.  This paragraph shall be interpreted and applied in

21  such manner as to meet the minimum requirements contained in

22  any guidance or regulations issued by the United States

23  Department of Labor.

24         Section 7.  Section 443.1317, Florida Statutes, is

25  amended to read:

26         443.1317  Rulemaking authority, seal; enforcement of

27  rules.--

28         (1)  AGENCY FOR WORKFORCE INNOVATION.--

29         (a)  Except as otherwise provided in s. 443.012, the

30  Agency for Workforce Innovation has ultimate authority over

31  the administration of the Unemployment Compensation Program.

                                  25

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         (b)  The Agency for Workforce Innovation shall have an

 2  official seal, which shall be judicially noticed.

 3         (c)(b)  The Agency for Workforce Innovation may adopt

 4  rules under ss. 120.536(1) and 120.54 to administer the

 5  provisions of this chapter conferring duties upon either the

 6  agency or its tax collection service provider.

 7         (2)  TAX COLLECTION SERVICE PROVIDER.--The state agency

 8  providing unemployment tax collection services under contract

 9  with the Agency for Workforce Innovation through an

10  interagency agreement pursuant to s. 443.1316 may adopt rules

11  under ss. 120.536(1) and 120.54, subject to approval by the

12  Agency for Workforce Innovation, to administer the provisions

13  of law described in s. 443.1316(1)(a) and (b) which are within

14  this chapter. These rules must not conflict with the rules

15  adopted by the Agency for Workforce Innovation or with the

16  interagency agreement.

17         (3)  ENFORCEMENT OF RULES.--The Agency for Workforce

18  Innovation may enforce any rule adopted by the state agency

19  providing unemployment tax collection services to administer

20  this chapter. The tax collection service provider may enforce

21  any rule adopted by the Agency for Workforce Innovation to

22  administer the provisions of law described in s.

23  443.1316(1)(a) and (b).

24         Section 8.  Paragraph (b) of subsection (4) of section

25  443.151, Florida Statutes, is amended to read:

26         443.151  Procedure concerning claims.--

27         (4)  APPEALS.--

28         (b)  Filing and hearing.--

29         1.  The claimant or any other party entitled to notice

30  of a determination may appeal an adverse determination to an

31  appeals referee within 20 days after the date of mailing of

                                  26

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1  the notice to her or his last known address or, if the notice

 2  is not mailed, within 20 days after the date of delivery of

 3  the notice.

 4         2.  Unless the appeal is untimely withdrawn or review

 5  is initiated by the commission, the appeals referee, after

 6  mailing all parties and attorneys of record a notice of

 7  hearing at least 10 days before the date of hearing,

 8  notwithstanding the 14-day notice requirement in s.

 9  120.569(2)(b), may only affirm, modify, or reverse the

10  determination. An appeal may not be withdrawn without the

11  permission of the appeals referee.

12         3.  However, when an appeal appears to have been filed

13  after the permissible time limit, the Office of Appeals may

14  issue an order to show cause to the appellant, requiring the

15  appellant to show why the appeal should not be dismissed as

16  untimely. If the appellant does not, within 15 days after the

17  mailing date of the order to show cause, provide written

18  evidence of timely filing or good cause for failure to appeal

19  timely, the appeal shall be dismissed.

20         4.3.  When an appeal involves a question of whether

21  services were performed by a claimant in employment or for an

22  employer, the referee must give special notice of the question

23  and of the pendency of the appeal to the employing unit and to

24  the Agency for Workforce Innovation, both of which become

25  parties to the proceeding.

26         5.4.  The parties must be notified promptly of the

27  referee's decision. The referee's decision is final unless

28  further review is initiated under paragraph (c) within 20 days

29  after the date of mailing notice of the decision to the

30  party's last known address or, in lieu of mailing, within 20

31  days after the delivery of the notice.

                                  27

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         Section 9.  Paragraph (a) of subsection (1) of section

 2  895.02, Florida Statutes, is amended to read:

 3         895.02  Definitions.--As used in ss. 895.01-895.08, the

 4  term:

 5         (1)  "Racketeering activity" means to commit, to

 6  attempt to commit, to conspire to commit, or to solicit,

 7  coerce, or intimidate another person to commit:

 8         (a)  Any crime which is chargeable by indictment or

 9  information under the following provisions of the Florida

10  Statutes:

11         1.  Section 210.18, relating to evasion of payment of

12  cigarette taxes.

13         2.  Section 403.727(3)(b), relating to environmental

14  control.

15         3.  Section 409.920 or s. 409.9201, relating to

16  Medicaid fraud.

17         4.  Section 414.39, relating to public assistance

18  fraud.

19         5.  Section 440.105 or s. 440.106, relating to workers'

20  compensation.

21         6.  Section 443.071(3), relating to creation of

22  fictitious employer schemes to commit unemployment

23  compensation fraud.

24         7.6.  Section 465.0161, relating to distribution of

25  medicinal drugs without a permit as an Internet pharmacy.

26         8.7.  Sections 499.0051, 499.0052, 499.00535,

27  499.00545, and 499.0691, relating to crimes involving

28  contraband and adulterated drugs.

29         9.8.  Part IV of chapter 501, relating to

30  telemarketing.

31  

                                  28

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         10.9.  Chapter 517, relating to sale of securities and

 2  investor protection.

 3         11.10.  Section 550.235, s. 550.3551, or s. 550.3605,

 4  relating to dogracing and horseracing.

 5         12.11.  Chapter 550, relating to jai alai frontons.

 6         13.12.  Chapter 552, relating to the manufacture,

 7  distribution, and use of explosives.

 8         14.13.  Chapter 560, relating to money transmitters, if

 9  the violation is punishable as a felony.

10         15.14.  Chapter 562, relating to beverage law

11  enforcement.

12         16.15.  Section 624.401, relating to transacting

13  insurance without a certificate of authority, s.

14  624.437(4)(c)1., relating to operating an unauthorized

15  multiple-employer welfare arrangement, or s. 626.902(1)(b),

16  relating to representing or aiding an unauthorized insurer.

17         17.16.  Section 655.50, relating to reports of currency

18  transactions, when such violation is punishable as a felony.

19         18.17.  Chapter 687, relating to interest and usurious

20  practices.

21         19.18.  Section 721.08, s. 721.09, or s. 721.13,

22  relating to real estate timeshare plans.

23         20.19.  Chapter 782, relating to homicide.

24         21.20.  Chapter 784, relating to assault and battery.

25         22.21.  Chapter 787, relating to kidnapping.

26         23.22.  Chapter 790, relating to weapons and firearms.

27         24.23.  Section 796.03, s. 796.035, s. 796.04, s.

28  796.045, s. 796.05, or s. 796.07, relating to prostitution and

29  sex trafficking.

30         25.24.  Chapter 806, relating to arson.

31  

                                  29

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         26.25.  Section 810.02(2)(c), relating to specified

 2  burglary of a dwelling or structure.

 3         27.26.  Chapter 812, relating to theft, robbery, and

 4  related crimes.

 5         28.27.  Chapter 815, relating to computer-related

 6  crimes.

 7         29.28.  Chapter 817, relating to fraudulent practices,

 8  false pretenses, fraud generally, and credit card crimes.

 9         30.29.  Chapter 825, relating to abuse, neglect, or

10  exploitation of an elderly person or disabled adult.

11         31.30.  Section 827.071, relating to commercial sexual

12  exploitation of children.

13         32.31.  Chapter 831, relating to forgery and

14  counterfeiting.

15         33.32.  Chapter 832, relating to issuance of worthless

16  checks and drafts.

17         34.33.  Section 836.05, relating to extortion.

18         35.34.  Chapter 837, relating to perjury.

19         36.35.  Chapter 838, relating to bribery and misuse of

20  public office.

21         37.36.  Chapter 843, relating to obstruction of

22  justice.

23         38.37.  Section 847.011, s. 847.012, s. 847.013, s.

24  847.06, or s. 847.07, relating to obscene literature and

25  profanity.

26         39.38.  Section 849.09, s. 849.14, s. 849.15, s.

27  849.23, or s. 849.25, relating to gambling.

28         40.39.  Chapter 874, relating to criminal street gangs.

29         41.40.  Chapter 893, relating to drug abuse prevention

30  and control.

31  

                                  30

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1652
    8-492B-05




 1         42.41.  Chapter 896, relating to offenses related to

 2  financial transactions.

 3         43.42.  Sections 914.22 and 914.23, relating to

 4  tampering with a witness, victim, or informant, and

 5  retaliation against a witness, victim, or informant.

 6         44.43.  Sections 918.12 and 918.13, relating to

 7  tampering with jurors and evidence.

 8         Section 10.  Except as otherwise expressly provided in

 9  this act, this act shall take effect July 1, 2005.

10  

11            *****************************************

12                          SENATE SUMMARY

13    Exempts proceedings conducted under ch. 443, F.S., by
      special deputies from uniform rules of procedure. Makes
14    it a third-degree felony to establish a fictitious
      employing unit for the purpose of obtaining unemployment
15    benefits. Prescribes those acts that constitute prima
      facie evidence of prohibited activity. Provides that the
16    exemption of certain wages from ch. 443, F.S., applies
      for purposes of determining an employer's contributions.
17    Provides guidelines for determining transfer of
      unemployment experience on transfer or acquisition of a
18    business. Provides for the Agency for Workforce
      Innovation to have an official seal. Prescribes
19    procedures when an appeal is untimely filed. Redefines
      the term "racketeering activity" to include creating a
20    fictitious employer scheme to commit unemployment fraud.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  31

CODING: Words stricken are deletions; words underlined are additions.