Florida Senate - 2012                                     SB 676
       
       
       
       By Senator Smith
       
       
       
       
       29-00485A-12                                           2012676__
    1                        A bill to be entitled                      
    2         An act relating to the workers’ compensation
    3         certificate-of-exemption process; amending s. 440.02,
    4         F.S.; redefining the term “employee” for purposes of
    5         workers’ compensation; amending s. 440.05, F.S.;
    6         revising requirements relating to election of
    7         exemption from coverage to include applicability to
    8         members of limited liability companies; revising
    9         requirements for submitting a notice of election of
   10         exemption; revising duties of the Department of
   11         Financial Services relating to the expiration of
   12         certificates of exemption; expanding applicability of
   13         requirements relating to certificates of exemption;
   14         providing effective dates.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Paragraphs (b) and (c) of subsection (15) of
   19  section 440.02, Florida Statutes, are amended to read:
   20         440.02 Definitions.—When used in this chapter, unless the
   21  context clearly requires otherwise, the following terms shall
   22  have the following meanings:
   23         (15)
   24         (b) “Employee” includes any person who is an officer of a
   25  corporation and who performs services for remuneration for such
   26  corporation within this state, whether or not such services are
   27  continuous.
   28         1. Any officer of a corporation may elect to be exempt from
   29  this chapter by filing written notice of the election with the
   30  department as provided in s. 440.05.
   31         2. As to officers of a corporation who are engaged in the
   32  construction industry, no more than three officers of a
   33  corporation or of any group of affiliated corporations may elect
   34  to be exempt from this chapter by filing written notice of the
   35  election with the department as provided in s. 440.05. Officers
   36  must be shareholders, each owning at least 10 percent of the
   37  stock of such corporation and listed as an officer of such
   38  corporation with the Division of Corporations of the Department
   39  of State, in order to elect exemptions under this chapter. For
   40  purposes of this subparagraph, the term “affiliated” means and
   41  includes one or more corporations or entities, any one of which
   42  is a corporation engaged in the construction industry, under the
   43  same or substantially the same control of a group of business
   44  entities which are connected or associated so that one entity
   45  controls or has the power to control each of the other business
   46  entities. The term “affiliated” includes, but is not limited to,
   47  the officers, directors, executives, shareholders active in
   48  management, employees, and agents of the affiliated corporation.
   49  The ownership by one business entity of a controlling interest
   50  in another business entity or a pooling of equipment or income
   51  among business entities shall be prima facie evidence that one
   52  business is affiliated with the other.
   53         3. An officer of a corporation who elects to be exempt from
   54  this chapter by filing a written notice of the election with the
   55  department as provided in s. 440.05 is not an employee.
   56  
   57  Services are presumed to have been rendered to the corporation
   58  if the officer is compensated by other than dividends upon
   59  shares of stock of the corporation which the officer owns.
   60         (c) “Employee” includes:
   61         1. A sole proprietor, a member of a limited liability
   62  company, or a partner who is not engaged in the construction
   63  industry, devotes full time to the proprietorship, limited
   64  liability company, or partnership, and elects to be included in
   65  the definition of employee by filing notice thereof as provided
   66  in s. 440.05.
   67         2. All persons who are being paid by a construction
   68  contractor as a subcontractor, unless the subcontractor has
   69  validly elected an exemption as permitted by this chapter, or
   70  has otherwise secured the payment of compensation coverage as a
   71  subcontractor, consistent with s. 440.10, for work performed by
   72  or as a subcontractor.
   73         3. An independent contractor working or performing services
   74  in the construction industry.
   75         4. A sole proprietor who engages in the construction
   76  industry and a partner or partnership that is engaged in the
   77  construction industry.
   78         Section 2. Subsections (2), (3), and (6) of section 440.05,
   79  Florida Statutes, are amended to read:
   80         440.05 Election of exemption; revocation of election;
   81  notice; certification.—
   82         (2) Each sole proprietor, member of a limited liability
   83  company, or partner who elects to be included in the definition
   84  of “employee” or who, after such election, revokes that election
   85  must mail to the department in Tallahassee notice to such
   86  effect, in accordance with a form to be prescribed by the
   87  department.
   88         (3) Each officer of a corporation who is engaged in the
   89  construction industry and who elects an exemption from this
   90  chapter or who, after electing such exemption, revokes that
   91  exemption, must submit mail a written notice to such effect to
   92  the department on a form prescribed by the department. The
   93  notice of election to be exempt from the provisions of this
   94  chapter must be notarized and under oath. The notice of election
   95  to be exempt which is electronically submitted to the department
   96  by the officer of a corporation who is allowed to claim an
   97  exemption as provided by this chapter must list the name,
   98  federal tax identification number, date of birth, Florida
   99  driver’s license number or Florida identification card number
  100  social security number, all certified or registered licenses
  101  issued pursuant to chapter 489 held by the person seeking the
  102  exemption, a copy of relevant documentation as to employment
  103  status filed with the Internal Revenue Service as specified by
  104  the department, a copy of the relevant occupational license in
  105  the primary jurisdiction of the business, and the registration
  106  number of the corporation filed with the Division of
  107  Corporations of the Department of State, and the percentage of
  108  ownership along with a copy of the stock certificate evidencing
  109  the required ownership under this chapter. The notice of
  110  election to be exempt must identify each corporation that
  111  employs the person electing the exemption and must list the
  112  social security number or federal tax identification number of
  113  each such employer and the additional documentation required by
  114  this section. In addition, the notice of election to be exempt
  115  must provide that the officer electing an exemption is not
  116  entitled to benefits under this chapter, must provide that the
  117  election does not exceed exemption limits for officers provided
  118  in s. 440.02, and must certify that any employees of the
  119  corporation whose officer elects an exemption are covered by
  120  workers’ compensation insurance. Upon receipt of the notice of
  121  the election to be exempt, receipt of all application fees, and
  122  a determination by the department that the notice meets the
  123  requirements of this subsection, the department shall issue a
  124  certification of the election to the officer, unless the
  125  department determines that the information contained in the
  126  notice is invalid. The department shall revoke a certificate of
  127  election to be exempt from coverage upon a determination by the
  128  department that the person does not meet the requirements for
  129  exemption or that the information contained in the notice of
  130  election to be exempt is invalid. The certificate of election
  131  must list the name of the corporation listed in the request for
  132  exemption. A new certificate of election must be obtained each
  133  time the person is employed by a new or different corporation
  134  that is not listed on the certificate of election. A copy of the
  135  certificate of election must be sent to each workers’
  136  compensation carrier identified in the request for exemption.
  137  Upon filing a notice of revocation of election, an officer who
  138  is a subcontractor or an officer of a corporate subcontractor
  139  must notify her or his contractor. Upon revocation of a
  140  certificate of election of exemption by the department, the
  141  department shall notify the workers’ compensation carriers
  142  identified in the request for exemption.
  143         (6) A construction industry certificate of election to be
  144  exempt which is issued in accordance with this section shall be
  145  valid for 2 years after the effective date stated thereon. Both
  146  the effective date and the expiration date must be listed on the
  147  face of the certificate by the department. The construction
  148  industry certificate must expire at midnight, 2 years from its
  149  issue date, as noted on the face of the exemption certificate. A
  150  construction industry certificate of election to be exempt may
  151  be revoked before its expiration by the officer for whom it was
  152  issued or by the department for the reasons stated in this
  153  section. At least 60 days before prior to the expiration date of
  154  a construction industry certificate of exemption issued after
  155  December 1, 1998, the department shall send notice of the
  156  expiration date and an application for renewal to the
  157  certificateholder at the address on the certificate or to the e
  158  mail address on file with the department.
  159         Section 3. Effective January 1, 2013, subsection (6) of
  160  section 440.05, Florida Statutes, as amended by this act, is
  161  amended to read:
  162         440.05 Election of exemption; revocation of election;
  163  notice; certification.—
  164         (6) A construction industry certificate of election to be
  165  exempt which is issued on or after January 1, 2013, in
  166  accordance with this section shall be valid for 2 years after
  167  the effective date stated thereon. Both the effective date and
  168  the expiration date must be listed on the face of the
  169  certificate by the department. The construction industry
  170  certificate must expire at midnight, 2 years from its issue
  171  date, as noted on the face of the exemption certificate. A
  172  construction industry certificate of election to be exempt may
  173  be revoked before its expiration by the officer for whom it was
  174  issued or by the department for the reasons stated in this
  175  section. At least 60 days before the expiration date of a
  176  construction industry certificate of exemption, the department
  177  shall send notice of the expiration date to the
  178  certificateholder at the address on the certificate or to the e
  179  mail address on file with the department.
  180         Section 4. Except as otherwise expressly provided in this
  181  act, this act shall take effect upon becoming a law.