Florida Senate - 2012                                    SB 1440
       By Senator Braynon
       33-01113A-12                                          20121440__
    1                        A bill to be entitled                      
    2         An act relating to unemployment compensation; amending
    3         s. 443.036, F.S.; updating and revising definitions;
    4         amending s. 443.101, F.S., relating to
    5         disqualification for benefits; revising the definition
    6         of the term “good cause”; amending ss. 443.1216 and
    7         443.131, F.S.; conforming cross-references; providing
    8         an effective date.
   10  Be It Enacted by the Legislature of the State of Florida:
   12         Section 1. Paragraph (c) of subsection (2) and subsections
   13  (5), (11), (14), (15), (18), (20), (21), (23), (25), (26), (27),
   14  (35), (38), (39), (45), and (46) of section 443.036, Florida
   15  Statutes, are amended to read:
   16         443.036 Definitions.—As used in this chapter, the term:
   17         (2) “Agricultural labor” means any remunerated service
   18  performed:
   19         (c) In connection with the production or harvesting of any
   20  commodity defined as an agricultural commodity as defined in s.
   21  15(f) in s. 15(g) of the Agricultural Marketing Act, as amended,
   22  (46 Stat. 1550, s. 3; 12 U.S.C. s. 1141j); the ginning of
   23  cotton; or the operation or maintenance of ditches, canals,
   24  reservoirs, or waterways, not owned or operated for profit, used
   25  exclusively for supplying and storing water for farming
   26  purposes.
   27         (5) “American vessel” means a any vessel documented or
   28  numbered under the laws of the United States. The term includes
   29  a any vessel that is not neither documented or numbered under
   30  the laws of the United States or a, nor documented under the
   31  laws of any foreign country, if its crew is employed solely by
   32  one or more citizens or residents of the United States or
   33  corporations organized under the laws of the United States or of
   34  any state.
   35         (11) “Casual labor” means labor that is occasional,
   36  incidental, or irregular, not exceeding 200 person-hours in
   37  total duration. As used in this subsection, the term “duration”
   38  means the period of time from the commencement to the completion
   39  of the particular job or project. Services performed by an
   40  employee for an his or her employer during a period of 1
   41  calendar month or any 2 consecutive calendar months, however,
   42  are deemed to be casual labor only if the service is performed
   43  on 10 or fewer calendar days, regardless of whether those days
   44  are consecutive. If any of the services performed by an
   45  individual on a particular labor project are not casual labor,
   46  each of the services performed by the individual on that job or
   47  project may not be deemed casual labor. Services must constitute
   48  casual labor and may not be performed in the course of the
   49  employer’s trade or business in order for those services to be
   50  exempt under this section.
   51         (14) “Contribution” means a payment of payroll tax to the
   52  Unemployment Compensation Trust Fund which is required under
   53  this chapter to finance unemployment benefits.
   54         (15) “Crew leader” means an individual who:
   55         (a) Furnishes individuals to perform service in
   56  agricultural labor for another person.
   57         (b) Pays, either on his or her own behalf or on behalf of
   58  the other person, the individuals furnished by him or her for
   59  the service in agricultural labor performed by those
   60  individuals.
   61         (c) Has not entered into a written agreement with the other
   62  person under which the individual is designated as an employee
   63  of the other person.
   64         (18) “Employee leasing company” means an employing unit
   65  that has a valid and active license under chapter 468, and that
   66  maintains the records required by s. 443.171(5), and produces,
   67  in addition, is responsible for producing quarterly reports
   68  concerning the clients and the internal staff of the employee
   69  leasing company and the internal staff of the employee leasing
   70  company. As used in this subsection, the term “client” means a
   71  party who has contracted with an employee leasing company that
   72  provides to provide a worker, or workers, to perform services
   73  for the client. Leased employees include employees subsequently
   74  placed on the payroll of the employee leasing company on behalf
   75  of the client. An employee leasing company must notify the tax
   76  collection service provider within 30 days after the initiation
   77  or termination of the company’s relationship with a any client
   78  company under chapter 468.
   79         (20) “Employing unit” means an individual; an or type of
   80  organization, including a partnership, limited liability
   81  company, association, trust, estate, joint-stock company,
   82  insurance company, or corporation, whether domestic or foreign;
   83  the receiver, trustee in bankruptcy, trustee, or successor of
   84  any of the foregoing; or the legal representative of a deceased
   85  person, who which has or had in his or her its employ one or
   86  more individuals performing services for it within this state.
   87         (a) Each individual employed to perform or to assist in
   88  performing the work of any agent or employee of an employing
   89  unit is deemed to be employed by the employing unit for the
   90  purposes of this chapter, regardless of whether the individual
   91  was hired or paid directly by the employing unit or by an agent
   92  or employee of the employing unit, if the employing unit had
   93  actual or constructive knowledge of the work.
   94         (b) Each individual performing services in this state for
   95  an employing unit maintaining at least two separate
   96  establishments in this state is deemed to be performing services
   97  for a single employing unit for the purposes of this chapter.
   98         (c) A person who is an officer of a corporation, or a
   99  member of a limited liability company classified as a
  100  corporation for federal income tax purposes, and who performs
  101  services for the corporation or limited liability company in
  102  this state, regardless of whether those services are continuous,
  103  is deemed an employee of the corporation or the limited
  104  liability company during all of each week of his or her tenure
  105  of office, regardless of whether he or she is compensated for
  106  those services. Services are presumed to be rendered for the
  107  corporation if in cases in which the officer is compensated by
  108  means other than dividends upon shares of stock of the
  109  corporation owned by him or her.
  110         (d) A limited liability company shall be treated as having
  111  the same status as it is classified for federal income tax
  112  purposes. However, a single-member limited liability company
  113  shall be treated as the employer.
  114         (21) “Employment” means a service subject to this chapter
  115  under s. 443.1216 which is performed by an employee for his or
  116  her employer the person employing him or her.
  117         (23) “Fund” means the Unemployment Compensation Trust Fund
  118  created under this chapter, into which all contributions and
  119  reimbursements required under this chapter are deposited and
  120  from which all benefits provided under this chapter are paid.
  121         (25) “Hospital” means an establishment institution that is
  122  licensed as a hospital under chapter 395, certified, or approved
  123  by the Agency for Health Care Administration as a hospital.
  124         (26) “Initial skills review” means an online education or
  125  training program, such as that established under s. 1004.99,
  126  that is approved by the Department of Economic Opportunity
  127  Agency for Workforce Innovation and designed to measure an
  128  individual’s mastery level of workplace skills.
  129         (27) “Institution of higher education” means an educational
  130  institution that:
  131         (a) Admits as regular students only individuals having a
  132  certificate of graduation from a high school, or the recognized
  133  equivalent of a certificate of graduation;
  134         (b) Is legally authorized in this state to provide a
  135  program of education beyond high school;
  136         (c) Provides an educational program that for which it
  137  awards a bachelor’s or higher degree, or provides a program that
  138  is acceptable for full credit toward a bachelor’s or higher
  139  degree; a program of postgraduate or postdoctoral studies; or a
  140  program of training to prepare students for gainful employment
  141  in a recognized occupation; and
  142         (d) Is a public or other nonprofit institution.
  144  The term includes each community college and state university in
  145  this state, and any each other institution in this state
  146  authorized under s. 1005.03 to use the designation “college” or
  147  “university.under s. 1005.03.
  148         (35) “Pay period” means a period of 31 or fewer consecutive
  149  days for which a payment or remuneration is ordinarily made to
  150  the employee by the person employing him or her.
  151         (38) “Reimbursement” means a payment of money to the
  152  Unemployment Compensation Trust Fund in lieu of a contribution
  153  which is required under this chapter to finance unemployment
  154  benefits.
  155         (39) “Reimbursing employer” means an employer who is liable
  156  for reimbursements in lieu of contributions made under this
  157  chapter.
  158         (45) “Wages” means remuneration subject to this chapter
  159  under s. 443.1217.
  160         (46) “Week” means a period of 7 consecutive days as defined
  161  in the rules of the Department of Economic Opportunity. The
  162  department may by rule prescribe that a week is deemed to be
  163  “in,” “within,” or “during” the benefit year that contains the
  164  greater part of the week.
  165         Section 2. Paragraph (a) of subsection (1) of section
  166  443.101, Florida Statutes, is amended to read:
  167         443.101 Disqualification for benefits.—An individual shall
  168  be disqualified for benefits:
  169         (1)(a) For the week in which he or she has voluntarily left
  170  work without good cause attributable to his or her employing
  171  unit or has been discharged by the employing unit for misconduct
  172  connected with his or her work, based on a finding by the
  173  Department of Economic Opportunity. As used in this paragraph,
  174  the term “work” means any work, whether full-time, part-time, or
  175  temporary.
  176         1. Disqualification for voluntarily quitting continues for
  177  the full period of unemployment next ensuing after the
  178  individual has left his or her full-time, part-time, or
  179  temporary work voluntarily without good cause and until the
  180  individual has earned income equal to or greater than 17 times
  181  his or her weekly benefit amount. As used in this subsection,
  182  the term “good cause” includes only that cause attributable to
  183  the employing unit which would compel a reasonable employee to
  184  cease working or attributable to the individual’s illness or
  185  disability requiring separation from his or her work. Any other
  186  disqualification may not be imposed. An individual is not
  187  disqualified under this subsection for voluntarily leaving
  188  temporary work to return immediately when called to work by the
  189  permanent employing unit that temporarily terminated his or her
  190  work within the previous 6 calendar months, or for voluntarily
  191  leaving work to relocate as a result of his or her military
  192  connected spouse’s permanent change of station orders,
  193  activation orders, or unit deployment orders.
  194         2. Disqualification for being discharged for misconduct
  195  connected with his or her work continues for the full period of
  196  unemployment next ensuing after having been discharged and until
  197  the individual is reemployed and has earned income of at least
  198  17 times his or her weekly benefit amount and for not more than
  199  52 weeks immediately following that week, as determined by the
  200  department in each case according to the circumstances or the
  201  seriousness of the misconduct, under the department’s rules for
  202  determining adopted for determinations of disqualification for
  203  benefits for misconduct.
  204         3. If an individual has provided notification to the
  205  employing unit of his or her intent to voluntarily leave work
  206  and the employing unit discharges the individual for reasons
  207  other than misconduct before the date the voluntary quit was to
  208  take effect, the individual, if otherwise entitled, shall
  209  receive benefits from the date of the employer’s discharge until
  210  the effective date of his or her voluntary quit.
  211         4. If an individual is notified by the employing unit of
  212  the employer’s intent to discharge the individual for reasons
  213  other than misconduct and the individual quits without good
  214  cause before the date the discharge was to take effect, the
  215  claimant is ineligible for benefits pursuant to s. 443.091(1)(d)
  216  for failing to be available for work for the week or weeks of
  217  unemployment occurring before the effective date of the
  218  discharge.
  219         5. As used in this paragraph, the term “good cause” means:
  220         a. Cause attributable to the employing unit or an illness
  221  or disability that requires separation from work; or
  222         b. Domestic violence, as defined in s. 741.28, verified by
  223  reasonable and confidential documentation that causes the
  224  individual to reasonably believe that continued employment will
  225  jeopardize the individual’s safety and the safety of a member of
  226  his or her immediate family.
  227         Section 3. Paragraph (a) of subsection (1), subsection (2),
  228  and paragraph (f) of subsection (13) of section 443.1216,
  229  Florida Statutes, are amended to read:
  230         443.1216 Employment.—Employment, as defined in s. 443.036,
  231  is subject to this chapter under the following conditions:
  232         (1)(a) The employment subject to this chapter includes a
  233  service performed, including a service performed in interstate
  234  commerce, by:
  235         1. An officer of a corporation.
  236         2. An individual who, under the usual common-law rules
  237  applicable for in determining the employer-employee
  238  relationship, is an employee. However, if whenever a client who,
  239  as defined in s. 443.036(18), which would otherwise be
  240  designated as an employing unit has contracted with an employee
  241  leasing company to supply it with workers, those workers are
  242  considered employees of the employee leasing company. An
  243  employee leasing company may lease corporate officers of the
  244  client to the client and other workers to the client, except as
  245  prohibited by regulations of the Internal Revenue Service.
  246  Employees of an employee leasing company must be reported under
  247  the employee leasing company’s tax identification number and
  248  contribution rate for work performed for the employee leasing
  249  company.
  250         a. In addition to any other report required to be filed by
  251  law, an employee leasing company shall submit a report to the
  252  Labor Market Statistics Center within the Department of Economic
  253  Opportunity which includes each client establishment and each
  254  establishment of the employee leasing company, or as otherwise
  255  directed by the department. The report must include the
  256  following information for each establishment:
  257         (I) The trade or establishment name;
  258         (II) The former unemployment compensation account number,
  259  if available;
  260         (III) The former federal employer’s identification number
  261  (FEIN), if available;
  262         (IV) The industry code recognized and published by the
  263  United States Office of Management and Budget, if available;
  264         (V) A description of the client’s primary business activity
  265  in order to verify or assign an industry code;
  266         (VI) The address of the physical location;
  267         (VII) The number of full-time and part-time employees who
  268  worked during, or received pay that was subject to unemployment
  269  compensation taxes for, the pay period including the 12th of the
  270  month for each month of the quarter;
  271         (VIII) The total wages subject to unemployment compensation
  272  taxes paid during the calendar quarter;
  273         (IX) An internal identification code to uniquely identify
  274  each establishment of each client;
  275         (X) The month and year that the client entered into the
  276  contract for services; and
  277         (XI) The month and year that the client terminated the
  278  contract for services.
  279         b. The report shall be submitted electronically or as in a
  280  manner otherwise prescribed by the Department of Economic
  281  Opportunity in the format specified by the Bureau of Labor
  282  Statistics of the United States Department of Labor for its
  283  Multiple Worksite Report for Professional Employer
  284  Organizations. The report must be provided quarterly to the
  285  Labor Market Statistics Center within the department, or as
  286  otherwise directed by the department, and must be filed by the
  287  last day of the month immediately following the end of the
  288  calendar quarter. The information required in sub-sub
  289  subparagraphs a.(X) and (XI) need be provided only in the
  290  quarter in which the contract to which it relates was entered
  291  into or terminated. The sum of the employment data and the sum
  292  of the wage data in the this report must match the employment
  293  and wages reported in the unemployment compensation quarterly
  294  tax and wage report. A report is not required for any calendar
  295  quarter preceding the third calendar quarter of 2010.
  296         c. The department shall adopt rules as necessary to
  297  administer this subparagraph, and may administer, collect,
  298  enforce, and waive the penalty imposed by s. 443.141(1)(b) for
  299  the report required by this subparagraph.
  300         d. For the purposes of this subparagraph, the term
  301  “establishment” means any location where business is conducted
  302  or where services or industrial operations are performed.
  303         3. An individual other than an individual who is an
  304  employee under subparagraph 1. or subparagraph 2., who performs
  305  services for remuneration for any person:
  306         a. As an agent-driver or commission-driver engaged in
  307  distributing meat products, vegetable products, fruit products,
  308  bakery products, beverages other than milk, or laundry or
  309  drycleaning services for his or her principal.
  310         b. As a traveling or city salesperson engaged on a full
  311  time basis in the solicitation on behalf of, and the
  312  transmission to, his or her principal of orders from
  313  wholesalers, retailers, contractors, or operators of hotels,
  314  restaurants, or other similar establishments for merchandise for
  315  resale or supplies for use in their business operations. This
  316  sub-subparagraph does not apply to an agent-driver or a
  317  commission-driver, or and does not apply to sideline sales
  318  activities performed on behalf of a person other than the
  319  salesperson’s principal.
  320         4. The services described in subparagraph 3. are employment
  321  subject to this chapter only if:
  322         a. The contract of service contemplates that substantially
  323  all of the services are to be performed personally by the
  324  individual;
  325         b. The individual does not have a substantial investment in
  326  facilities used in connection with the services, other than
  327  facilities used for transportation; and
  328         c. The services are not in the nature of a single
  329  transaction that is not part of a continuing relationship with
  330  the person for whom the services are performed.
  331         (2) The employment subject to this chapter includes service
  332  performed in the employ of a public employer as defined in s.
  333  443.036, if the service is excluded from the definition of
  334  “employment” in s. 3306(c)(7) of the Federal Unemployment Tax
  335  Act and is not excluded from the employment subject to this
  336  chapter under subsection (4).
  337         (13) The following are exempt from coverage under this
  338  chapter:
  339         (f) Service performed in the employ of a public employer as
  340  defined in s. 443.036, except as provided in subsection (2), and
  341  service performed in the employ of an instrumentality of a
  342  public employer as described in s. 443.036(36)(b) or (c)
  343  443.036(35)(b) or (c), to the extent that the instrumentality is
  344  immune under the United States Constitution from the tax imposed
  345  by s. 3301 of the Internal Revenue Code for that service.
  346         Section 4. Paragraph (f) of subsection (3) of section
  347  443.131, Florida Statutes, is amended to read:
  348         443.131 Contributions.—
  351         (f) Transfer of employment records.—
  352         1. For the purposes of this subsection, two or more
  353  employers who are parties to a transfer of business or the
  354  subject of a merger, consolidation, or other form of
  355  reorganization, effecting a change in legal identity or form,
  356  are deemed a single employer and are considered to be one
  357  employer with a continuous employment record if the tax
  358  collection service provider finds that the successor employer
  359  continues to carry on the employing enterprises of all of the
  360  predecessor employers, and that the successor employer has paid
  361  all contributions required of and due from all of the
  362  predecessor employers, and has assumed liability for all
  363  contributions that may become due from all of the predecessor
  364  employers. In addition, An employer may not be considered a
  365  successor under this subparagraph if the employer purchases a
  366  company with a lower rate into which employees with job
  367  functions unrelated to the business endeavors of the predecessor
  368  are transferred for the purpose of acquiring the low rate and
  369  avoiding payment of contributions. As used in this paragraph,
  370  Notwithstanding s. 443.036(14), the term “contributions,as
  371  used in this paragraph, means all indebtedness to the tax
  372  collection service provider, including, but not limited to,
  373  interest, penalty, collection fee, and service fee.
  374         2. A successor employer must accept the transfer of all of
  375  the predecessor employers’ employment records within 30 days
  376  after the date of the official notification of liability by
  377  succession. If a predecessor employer has unpaid contributions
  378  or outstanding quarterly reports, the successor employer must
  379  pay the total amount with certified funds within 30 days after
  380  the date of the notice listing the total amount due. After the
  381  total indebtedness is paid, the tax collection service provider
  382  shall transfer the employment records of all of the predecessor
  383  employers to the successor employer’s employment record. The tax
  384  collection service provider shall determine the contribution
  385  rate of the combined successor and predecessor employers upon
  386  the transfer of the employment records, as prescribed by rule,
  387  in order to calculate any change in the contribution rate
  388  resulting from the transfer of the employment records.
  389         3.2. Regardless of whether a predecessor employer’s
  390  employment record is transferred to a successor employer under
  391  this paragraph, the tax collection service provider shall treat
  392  the predecessor employer, if he or she subsequently employs
  393  individuals, as an employer without a previous employment record
  394  or, if his or her coverage is terminated under s. 443.121, as a
  395  new employing unit.
  396         4.3. The state agency providing unemployment tax collection
  397  services may adopt rules governing the partial transfer of
  398  experience rating when an employer transfers an identifiable and
  399  segregable portion of his or her payrolls and business to a
  400  successor employing unit. As a condition of each partial
  401  transfer, these rules must require the following to be filed
  402  with the tax collection service provider: an application by the
  403  successor employing unit, an agreement by the predecessor
  404  employer, and the evidence required by the tax collection
  405  service provider to show the benefit experience and payrolls
  406  attributable to the transferred portion through the date of the
  407  transfer. These rules must provide that the successor employing
  408  unit, if not an employer subject to this chapter, becomes an
  409  employer as of the date of the transfer and that the transferred
  410  portion of the predecessor employer’s employment record is
  411  removed from the employment record of the predecessor employer.
  412  For each calendar year after the date of the transfer of the
  413  employment record in the records of the tax collection service
  414  provider, the service provider shall compute the contribution
  415  rate payable by the successor employer or employing unit based
  416  on his or her employment record, combined with the transferred
  417  portion of the predecessor employer’s employment record. These
  418  rules may also prescribe what contribution rates are payable by
  419  the predecessor and successor employers for the period between
  420  the date of the transfer of the transferred portion of the
  421  predecessor employer’s employment record in the records of the
  422  tax collection service provider and the first day of the next
  423  calendar year.
  424         5.4. This paragraph does not apply to an employee leasing
  425  company and client contractual agreement as defined in s.
  426  443.036. The tax collection service provider shall, if the
  427  contractual agreement is terminated or the employee leasing
  428  company fails to submit reports or pay contributions as required
  429  by the service provider, treat the client as a new employer
  430  without previous employment record unless the client is
  431  otherwise eligible for a variation from the standard rate.
  432         Section 5. This act shall take effect July 1, 2012.