HB 423

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

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