HB 423

1
A bill to be entitled
2An act relating to the definition of "employee" for the
3purposes of workers' compensation; amending s. 440.02,
4F.S.; redefining the term "employee" under the Workers'
5Compensation Law to revise an exemption relating to owner-
6operators of motor vehicles; providing an effective date.
7
8Be It Enacted by the Legislature of the State of Florida:
9
10     Section 1.  Paragraph (d) of subsection (15) of section
11440.02, Florida Statutes, is amended to read:
12     440.02  Definitions.--When used in this chapter, unless the
13context clearly requires otherwise, the following terms shall
14have the following meanings:
15     (15)
16     (d)  "Employee" does not include:
17     1.  An independent contractor who is not engaged in the
18construction industry.
19     a.  In order to meet the definition of independent
20contractor, at least four of the following criteria must be met:
21     (I)  The independent contractor maintains a separate
22business with his or her own work facility, truck, equipment,
23materials, or similar accommodations;
24     (II)  The independent contractor holds or has applied for a
25federal employer identification number, unless the independent
26contractor is a sole proprietor who is not required to obtain a
27federal employer identification number under state or federal
28regulations;
29     (III)  The independent contractor receives compensation for
30services rendered or work performed and such compensation is
31paid to a business rather than to an individual;
32     (IV)  The independent contractor holds one or more bank
33accounts in the name of the business entity for purposes of
34paying business expenses or other expenses related to services
35rendered or work performed for compensation;
36     (V)  The independent contractor performs work or is able to
37perform work for any entity in addition to or besides the
38employer at his or her own election without the necessity of
39completing an employment application or process; or
40     (VI)  The independent contractor receives compensation for
41work or services rendered on a competitive-bid basis or
42completion of a task or a set of tasks as defined by a
43contractual agreement, unless such contractual agreement
44expressly states that an employment relationship exists.
45     b.  If four of the criteria listed in sub-subparagraph a.
46do not exist, an individual may still be presumed to be an
47independent contractor and not an employee based on full
48consideration of the nature of the individual situation with
49regard to satisfying any of the following conditions:
50     (I)  The independent contractor performs or agrees to
51perform specific services or work for a specific amount of money
52and controls the means of performing the services or work.
53     (II)  The independent contractor incurs the principal
54expenses related to the service or work that he or she performs
55or agrees to perform.
56     (III)  The independent contractor is responsible for the
57satisfactory completion of the work or services that he or she
58performs or agrees to perform.
59     (IV)  The independent contractor receives compensation for
60work or services performed for a commission or on a per-job
61basis and not on any other basis.
62     (V)  The independent contractor may realize a profit or
63suffer a loss in connection with performing work or services.
64     (VI)  The independent contractor has continuing or
65recurring business liabilities or obligations.
66     (VII)  The success or failure of the independent
67contractor's business depends on the relationship of business
68receipts to expenditures.
69     c.  Notwithstanding anything to the contrary in this
70subparagraph, an individual claiming to be an independent
71contractor has the burden of proving that he or she is an
72independent contractor for purposes of this chapter.
73     2.  A real estate licensee, if that person agrees, in
74writing, to perform for remuneration solely by way of
75commission.
76     3.  Bands, orchestras, and musical and theatrical
77performers, including disk jockeys, performing in licensed
78premises as defined in chapter 562, if a written contract
79evidencing an independent contractor relationship is entered
80into before the commencement of such entertainment.
81     4.  An owner-operator of a motor vehicle who transports
82property under a written contract with a motor carrier which
83evidences a relationship by which the owner-operator assumes the
84responsibility of an employer for the performance of the
85contract, if the owner-operator is required to furnish the
86necessary motor vehicle equipment as identified in the written
87contract and the principal all costs incidental to the
88performance of the contract, including, but not limited to, fuel
89and, taxes, licenses, repairs, provided a motor carrier's
90advance of costs to the owner-operator when a written contract
91evidences the owner-operator's obligation to reimburse such
92advance shall be treated as the owner-operator furnishing such
93cost and hired help; and the owner-operator is paid a commission
94for transportation service and is not paid by the hour or on
95some other time-measured basis.
96     5.  A person whose employment is both casual and not in the
97course of the trade, business, profession, or occupation of the
98employer.
99     6.  A volunteer, except a volunteer worker for the state or
100a county, municipality, or other governmental entity. A person
101who does not receive monetary remuneration for services is
102presumed to be a volunteer unless there is substantial evidence
103that a valuable consideration was intended by both employer and
104employee. For purposes of this chapter, the term "volunteer"
105includes, but is not limited to:
106     a.  Persons who serve in private nonprofit agencies and who
107receive no compensation other than expenses in an amount less
108than or equivalent to the standard mileage and per diem expenses
109provided to salaried employees in the same agency or, if such
110agency does not have salaried employees who receive mileage and
111per diem, then such volunteers who receive no compensation other
112than expenses in an amount less than or equivalent to the
113customary mileage and per diem paid to salaried workers in the
114community as determined by the department; and
115     b.  Volunteers participating in federal programs
116established under Pub. L. No. 93-113.
117     7.  Unless otherwise prohibited by this chapter, any
118officer of a corporation who elects to be exempt from this
119chapter. Such officer is not an employee for any reason under
120this chapter until the notice of revocation of election filed
121pursuant to s. 440.05 is effective.
122     8.  An officer of a corporation that is engaged in the
123construction industry who elects to be exempt from the
124provisions of this chapter, as otherwise permitted by this
125chapter. Such officer is not an employee for any reason until
126the notice of revocation of election filed pursuant to s. 440.05
127is effective.
128     9.  An exercise rider who does not work for a single horse
129farm or breeder, and who is compensated for riding on a case-by-
130case basis, provided a written contract is entered into prior to
131the commencement of such activity which evidences that an
132employee/employer relationship does not exist.
133     10.  A taxicab, limousine, or other passenger vehicle-for-
134hire driver who operates said vehicles pursuant to a written
135agreement with a company which provides any dispatch, marketing,
136insurance, communications, or other services under which the
137driver and any fees or charges paid by the driver to the company
138for such services are not conditioned upon, or expressed as a
139proportion of, fare revenues.
140     11.  A person who performs services as a sports official
141for an entity sponsoring an interscholastic sports event or for
142a public entity or private, nonprofit organization that sponsors
143an amateur sports event. For purposes of this subparagraph, such
144a person is an independent contractor. For purposes of this
145subparagraph, the term "sports official" means any person who is
146a neutral participant in a sports event, including, but not
147limited to, umpires, referees, judges, linespersons,
148scorekeepers, or timekeepers. This subparagraph does not apply
149to any person employed by a district school board who serves as
150a sports official as required by the employing school board or
151who serves as a sports official as part of his or her
152responsibilities during normal school hours.
153     12.  Medicaid-enrolled clients under chapter 393 who are
154excluded from the definition of employment under s.
155443.1216(4)(d) and served by Adult Day Training Services under
156the Home and Community-Based Medicaid Waiver program in a
157sheltered workshop setting licensed by the United States
158Department of Labor for the purpose of training and earning less
159than 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.