HB 0423

CS

CHAMBER ACTION

1	The Insurance Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to the definition of "employee" for the
7	purposes of workers' compensation; amending s. 440.02,
8	F.S.; redefining the term "employee" under the Workers'
9	Compensation Law to revise an exemption relating to owner-
10	operators of motor vehicles; providing an effective date.
11
12	Be It Enacted by the Legislature of the State of Florida:
13
14	Section 1.  Paragraph (d) of subsection (15) of section
15	440.02, Florida Statutes, is amended to read:
16	440.02  Definitions.--When used in this chapter, unless the
17	context clearly requires otherwise, the following terms shall
18	have the following meanings:
19	(15)
20	(d)  "Employee" does not include:
21	1.  An independent contractor who is not engaged in the
22	construction industry.
23	a.  In order to meet the definition of independent
24	contractor, at least four of the following criteria must be met:
25	(I)  The independent contractor maintains a separate
26	business with his or her own work facility, truck, equipment,
27	materials, or similar accommodations;
28	(II)  The independent contractor holds or has applied for a
29	federal employer identification number, unless the independent
30	contractor is a sole proprietor who is not required to obtain a
31	federal employer identification number under state or federal
32	regulations;
33	(III)  The independent contractor receives compensation for
34	services rendered or work performed and such compensation is
35	paid to a business rather than to an individual;
36	(IV)  The independent contractor holds one or more bank
37	accounts in the name of the business entity for purposes of
38	paying business expenses or other expenses related to services
39	rendered or work performed for compensation;
40	(V)  The independent contractor performs work or is able to
41	perform work for any entity in addition to or besides the
42	employer at his or her own election without the necessity of
43	completing an employment application or process; or
44	(VI)  The independent contractor receives compensation for
45	work or services rendered on a competitive-bid basis or
46	completion of a task or a set of tasks as defined by a
47	contractual agreement, unless such contractual agreement
48	expressly states that an employment relationship exists.
49	b.  If four of the criteria listed in sub-subparagraph a.
50	do not exist, an individual may still be presumed to be an
51	independent contractor and not an employee based on full
52	consideration of the nature of the individual situation with
53	regard to satisfying any of the following conditions:
54	(I)  The independent contractor performs or agrees to
55	perform specific services or work for a specific amount of money
56	and controls the means of performing the services or work.
57	(II)  The independent contractor incurs the principal
58	expenses related to the service or work that he or she performs
59	or agrees to perform.
60	(III)  The independent contractor is responsible for the
61	satisfactory completion of the work or services that he or she
62	performs or agrees to perform.
63	(IV)  The independent contractor receives compensation for
64	work or services performed for a commission or on a per-job
65	basis and not on any other basis.
66	(V)  The independent contractor may realize a profit or
67	suffer a loss in connection with performing work or services.
68	(VI)  The independent contractor has continuing or
69	recurring business liabilities or obligations.
70	(VII)  The success or failure of the independent
71	contractor's business depends on the relationship of business
72	receipts to expenditures.
73	c.  Notwithstanding anything to the contrary in this
74	subparagraph, an individual claiming to be an independent
75	contractor has the burden of proving that he or she is an
76	independent contractor for purposes of this chapter.
77	2.  A real estate licensee, if that person agrees, in
78	writing, to perform for remuneration solely by way of
79	commission.
80	3.  Bands, orchestras, and musical and theatrical
81	performers, including disk jockeys, performing in licensed
82	premises as defined in chapter 562, if a written contract
83	evidencing an independent contractor relationship is entered
84	into before the commencement of such entertainment.
85	4.  An owner-operator of a motor vehicle who transports
86	property under a written contract with a motor carrier which
87	evidences a relationship by which the owner-operator assumes the
88	responsibility of an employer for the performance of the
89	contract, if the owner-operator is required to furnish the
90	necessary motor vehicle equipment as identified in the written
91	contract and the principal all costs incidental to the
92	performance of the contract, including, but not limited to, fuel
93	and, taxes, licenses, repairs, provided a motor carrier's
94	advance of costs to the owner-operator when a written contract
95	evidences the owner-operator's obligation to reimburse such
96	advance shall be treated as the owner-operator furnishing such
97	cost and hired help; and the owner-operator is paid a commission
98	for transportation service and is not paid by the hour or on
99	some other time-measured basis.
100	5.  A person whose employment is both casual and not in the
101	course of the trade, business, profession, or occupation of the
102	employer.
103	6.  A volunteer, except a volunteer worker for the state or
104	a county, municipality, or other governmental entity. A person
105	who does not receive monetary remuneration for services is
106	presumed to be a volunteer unless there is substantial evidence
107	that a valuable consideration was intended by both employer and
108	employee. For purposes of this chapter, the term "volunteer"
109	includes, but is not limited to:
110	a.  Persons who serve in private nonprofit agencies and who
111	receive no compensation other than expenses in an amount less
112	than or equivalent to the standard mileage and per diem expenses
113	provided to salaried employees in the same agency or, if such
114	agency does not have salaried employees who receive mileage and
115	per diem, then such volunteers who receive no compensation other
116	than expenses in an amount less than or equivalent to the
117	customary mileage and per diem paid to salaried workers in the
118	community as determined by the department; and
119	b.  Volunteers participating in federal programs
120	established under Pub. L. No. 93-113.
121	7.  Unless otherwise prohibited by this chapter, any
122	officer of a corporation who elects to be exempt from this
123	chapter. Such officer is not an employee for any reason under
124	this chapter until the notice of revocation of election filed
125	pursuant to s. 440.05 is effective.
126	8.  An officer of a corporation that is engaged in the
127	construction industry who elects to be exempt from the
128	provisions of this chapter, as otherwise permitted by this
129	chapter. Such officer is not an employee for any reason until
130	the notice of revocation of election filed pursuant to s. 440.05
131	is effective.
132	9.  An exercise rider who does not work for a single horse
133	farm or breeder, and who is compensated for riding on a case-by-
134	case basis, provided a written contract is entered into prior to
135	the commencement of such activity which evidences that an
136	employee/employer relationship does not exist.
137	10.  A taxicab, limousine, or other passenger vehicle-for-
138	hire driver who operates said vehicles pursuant to a written
139	agreement with a company which provides any dispatch, marketing,
140	insurance, communications, or other services under which the
141	driver and any fees or charges paid by the driver to the company
142	for such services are not conditioned upon, or expressed as a
143	proportion of, fare revenues.
144	11.  A person who performs services as a sports official
145	for an entity sponsoring an interscholastic sports event or for
146	a public entity or private, nonprofit organization that sponsors
147	an amateur sports event. For purposes of this subparagraph, such
148	a person is an independent contractor. For purposes of this
149	subparagraph, the term "sports official" means any person who is
150	a neutral participant in a sports event, including, but not
151	limited to, umpires, referees, judges, linespersons,
152	scorekeepers, or timekeepers. This subparagraph does not apply
153	to any person employed by a district school board who serves as
154	a sports official as required by the employing school board or
155	who serves as a sports official as part of his or her
156	responsibilities during normal school hours.
157	12.  Medicaid-enrolled clients under chapter 393 who are
158	excluded from the definition of employment under s.
159	443.1216(4)(d) and served by Adult Day Training Services under
160	the Home and Community-Based Medicaid Waiver program in a
161	sheltered workshop setting licensed by the United States
162	Department of Labor for the purpose of training and earning less
163	than the federal hourly minimum wage.
164	Section 2.  This act shall take effect July 1, 2005.

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