Florida Senate - 2016 SENATOR AMENDMENT Bill No. HB 7099, 2nd Eng. Ì327386IÎ327386 LEGISLATIVE ACTION Senate . House . . . Floor: WD/2R . 03/10/2016 12:05 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Grimsley moved the following: 1 Senate Amendment to Amendment (673118) (with title 2 amendment) 3 4 Between lines 4 and 5 5 insert: 6 Section 1. Subsection (9) of section 205.022, Florida 7 Statutes, is amended to read: 8 205.022 Definitions.—When used in this chapter, the 9 following terms and phrases shall have the meanings ascribed to 10 them in this section, except when the context clearly indicates 11 a different meaning: 12 (9) “Independent contractor” includes:has the same meaning13 (a) All persons that meet the criteria as provided in s. 14 440.02(15)(d)1.a. and b.; and 15 (b) Qualified marketplace contractors as provided in s. 16 440.02(15)(d)14. 17 Section 2. Paragraph (d) of subsection (15) of section 18 440.02, Florida Statutes, is amended, and subsections (42) and 19 (43) are added to that section, 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 (d) “Employee” does not include: 25 1. An independent contractor who is not engaged in the 26 construction industry. 27 a. In order to meet the definition of independent 28 contractor, at least four of the following criteria must be met: 29 (I) The independent contractor maintains a separate 30 business with his or her own work facility, truck, equipment, 31 materials, or similar accommodations; 32 (II) The independent contractor holds or has applied for a 33 federal employer identification number, unless the independent 34 contractor is a sole proprietor who is not required to obtain a 35 federal employer identification number under state or federal 36 regulations; 37 (III) The independent contractor receives compensation for 38 services rendered or work performed and such compensation is 39 paid to a business rather than to an individual; 40 (IV) The independent contractor holds one or more bank 41 accounts in the name of the business entity for purposes of 42 paying business expenses or other expenses related to services 43 rendered or work performed for compensation; 44 (V) The independent contractor performs work or is able to 45 perform work for any entity in addition to or besides the 46 employer at his or her own election without the necessity of 47 completing an employment application or process; or 48 (VI) The independent contractor receives compensation for 49 work or services rendered on a competitive-bid basis or 50 completion of a task or a set of tasks as defined by a 51 contractual agreement, unless such contractual agreement 52 expressly states that an employment relationship exists. 53 b. If four of the criteria listed in sub-subparagraph a. do 54 not exist, an individual may still be presumed to be an 55 independent contractor and not an employee based on full 56 consideration of the nature of the individual situation with 57 regard to satisfying any of the following conditions: 58 (I) The independent contractor performs or agrees to 59 perform specific services or work for a specific amount of money 60 and controls the means of performing the services or work. 61 (II) The independent contractor incurs the principal 62 expenses related to the service or work that he or she performs 63 or agrees to perform. 64 (III) The independent contractor is responsible for the 65 satisfactory completion of the work or services that he or she 66 performs or agrees to perform. 67 (IV) The independent contractor receives compensation for 68 work or services performed for a commission or on a per-job 69 basis and not on any other basis. 70 (V) The independent contractor may realize a profit or 71 suffer a loss in connection with performing work or services. 72 (VI) The independent contractor has continuing or recurring 73 business liabilities or obligations. 74 (VII) The success or failure of the independent 75 contractor’s business depends on the relationship of business 76 receipts to expenditures. 77 c. Notwithstanding anything to the contrary in this 78 subparagraph, an individual claiming to be an independent 79 contractor has the burden of proving that he or she is an 80 independent contractor for purposes of this chapter. 81 2. A real estate licensee, if that person agrees, in 82 writing, to perform for remuneration solely by way of 83 commission. 84 3. Bands, orchestras, and musical and theatrical 85 performers, including disk jockeys, performing in licensed 86 premises as defined in chapter 562, if a written contract 87 evidencing an independent contractor relationship is entered 88 into before the commencement of such entertainment. 89 4. An owner-operator of a motor vehicle who transports 90 property under a written contract with a motor carrier which 91 evidences a relationship by which the owner-operator assumes the 92 responsibility of an employer for the performance of the 93 contract, if the owner-operator is required to furnish motor 94 vehicle equipment as identified in the written contract and the 95 principal costs incidental to the performance of the contract, 96 including, but not limited to, fuel and repairs, provided a 97 motor carrier’s advance of costs to the owner-operator when a 98 written contract evidences the owner-operator’s obligation to 99 reimburse such advance shall be treated as the owner-operator 100 furnishing such cost and the owner-operator is not paid by the 101 hour or on some other time-measured basis. 102 5. A person whose employment is both casual and not in the 103 course of the trade, business, profession, or occupation of the 104 employer. 105 6. A volunteer, except a volunteer worker for the state or 106 a county, municipality, or other governmental entity. A person 107 who does not receive monetary remuneration for services is 108 presumed to be a volunteer unless there is substantial evidence 109 that a valuable consideration was intended by both employer and 110 employee. For purposes of this chapter, the term “volunteer” 111 includes, but is not limited to: 112 a. Persons who serve in private nonprofit agencies and who 113 receive no compensation other than expenses in an amount less 114 than or equivalent to the standard mileage and per diem expenses 115 provided to salaried employees in the same agency or, if such 116 agency does not have salaried employees who receive mileage and 117 per diem, then such volunteers who receive no compensation other 118 than expenses in an amount less than or equivalent to the 119 customary mileage and per diem paid to salaried workers in the 120 community as determined by the department; and 121 b. Volunteers participating in federal programs established 122 under Pub. L. No. 93-113. 123 7. Unless otherwise prohibited by this chapter, any officer 124 of a corporation who elects to be exempt from this chapter. Such 125 officer is not an employee for any reason under this chapter 126 until the notice of revocation of election filed pursuant to s. 127 440.05 is effective. 128 8. An officer of a corporation that is engaged in the 129 construction industry who elects to be exempt from the 130 provisions of this chapter, as otherwise permitted by this 131 chapter. Such officer is not an employee for any reason until 132 the notice of revocation of election filed pursuant to s. 440.05 133 is effective. 134 9. An exercise rider who does not work for a single horse 135 farm or breeder, and who is compensated for riding on a case-by 136 case basis, provided a written contract is entered into prior to 137 the commencement of such activity which evidences that an 138 employee/employer relationship does not exist. 139 10. A taxicab, limousine, or other passenger vehicle-for 140 hire driver who operates said vehicles pursuant to a written 141 agreement with a company which provides any dispatch, marketing, 142 insurance, communications, or other services under which the 143 driver and any fees or charges paid by the driver to the company 144 for such services are not conditioned upon, or expressed as a 145 proportion of, fare revenues. 146 11. A person who performs services as a sports official for 147 an entity sponsoring an interscholastic sports event or for a 148 public entity or private, nonprofit organization that sponsors 149 an amateur sports event. For purposes of this subparagraph, such 150 a person is an independent contractor. For purposes of this 151 subparagraph, the term “sports official” means any person who is 152 a neutral participant in a sports event, including, but not 153 limited to, umpires, referees, judges, linespersons, 154 scorekeepers, or timekeepers. This subparagraph does not apply 155 to any person employed by a district school board who serves as 156 a sports official as required by the employing school board or 157 who serves as a sports official as part of his or her 158 responsibilities during normal school hours. 159 12. Medicaid-enrolled clients under chapter 393 who are 160 excluded from the definition of employment under s. 161 443.1216(4)(d) and served by Adult Day Training Services under 162 the Home and Community-Based or the Family and Supported Living 163 Medicaid Waiver program in a sheltered workshop setting licensed 164 by the United States Department of Labor for the purpose of 165 training and earning less than the federal hourly minimum wage. 166 13. Medicaid-enrolled clients under chapter 393 who are 167 excluded from the definition of employment under s. 168 443.1216(4)(d) and served by Adult Day Training Services under 169 the Family and Supported Living Medicaid Waiver program in a 170 sheltered workshop setting licensed by the United States 171 Department of Labor for the purpose of training and earning less 172 than the federal hourly minimum wage. 173 14. A qualified marketplace contractor if: 174 a. The services performed by the qualified marketplace 175 contractor are governed by a written contract executed between 176 such contractor and a qualified marketplace platform; and 177 b. The written contract provides the following: 178 (I) That the qualified marketplace contractor is providing 179 services as an independent contractor, and not as an employee; 180 (II) That the qualified marketplace contractor may work any 181 hours or schedules that he or she chooses. However, if a 182 qualified marketplace contractor elects to work specified hours 183 or schedules, the contract or other written arrangement may 184 require the qualified marketplace contractor to perform work 185 during the selected hours or schedules; 186 (III) That the contractor is free to engage in any other 187 occupation or business opportunity, including performing 188 services through other qualified marketplace platforms; 189 (IV) That the qualified marketplace contractor must 190 provide, at the contractor’s own expense, all or substantially 191 all of the necessary equipment, tools, and other materials to 192 perform the services; and 193 (V) That the qualified marketplace contractor is 194 responsible for tax on the qualified marketplace contractor’s 195 own income. 196 c. For services performed by a qualified marketplace 197 contractor before the effective date of this subparagraph, the 198 term “employee” does not include a qualified marketplace 199 contractor if the services performed by the qualified 200 marketplace contractor were governed by a written contract 201 executed between the qualified marketplace contractor and a 202 qualified marketplace platform that conforms to the requirements 203 of sub-subparagraph (d)14.b. 204 (42) “Qualified marketplace contractor” means any person or 205 organization, including, but not limited to, a natural person, 206 corporation, limited liability company, partnership, sole 207 proprietor, or other entity, which enters into an agreement with 208 a qualified marketplace platform to use the qualified 209 marketplace platform’s digital platform to provide services to 210 third-party individuals or entities seeking those services. 211 (43) “Qualified marketplace platform” means an 212 organization, including, but not limited to, a corporation, 213 limited liability company, partnership, sole proprietor, or any 214 other entity, which operates a digital platform that facilitates 215 the provision of services by qualified marketplace contractors 216 to third-party individuals or entities seeking those services. 217 Section 3. Subsections (36) through (46) of section 218 443.036, Florida Statutes, are redesignated as subsections (38) 219 through (48), respectively, and new subsections (36) and (37) 220 are added to that section, to read: 221 443.036 Definitions.—As used in this chapter, the term: 222 (36) “Qualified marketplace contractor” means any person or 223 organization, including, but not limited to, a natural person, 224 corporation, limited liability company, partnership, sole 225 proprietor, or other entity, which enters into an agreement with 226 a qualified marketplace platform to use the qualified 227 marketplace platform’s digital platform to provide services to 228 third-party individuals or entities seeking those services. 229 (37) “Qualified marketplace platform” means an 230 organization, including, but not limited to, a corporation, 231 limited liability company, partnership, sole proprietor, or any 232 other entity, which operates a digital platform that facilitates 233 the provision of services by qualified marketplace contractors 234 to third-party individuals or entities seeking those services. 235 Section 4. Paragraph (z) is added to subsection (13) of 236 section 443.1216, Florida Statutes, to read: 237 443.1216 Employment.—Employment, as defined in s. 443.036, 238 is subject to this chapter under the following conditions: 239 (13) The following are exempt from coverage under this 240 chapter: 241 (z) Services performed by or as a qualified marketplace 242 contractor if: 243 1. The services performed by the qualified marketplace 244 contractor are governed by a written contract executed between 245 such contractor and a qualified marketplace platform; and 246 2. The written contract provides the following: 247 a. That the qualified marketplace contractor is providing 248 services as an independent contractor, and not as an employee; 249 b. That the qualified marketplace contractor may work any 250 hours or schedules that he or she chooses. However, if a 251 qualified marketplace contractor elects to work specified hours 252 or schedules, the contract or other written arrangement may 253 require the qualified marketplace contractor to perform work 254 during the selected hours or schedules; 255 c. That the contractor is free to engage in any other 256 occupation or business opportunity, including performing 257 services through other qualified marketplace platforms; 258 d. That the qualified marketplace contractor must provide, 259 at the contractor’s own expense, all or substantially all of the 260 necessary equipment, tools, and other materials to perform the 261 services; and 262 e. That the qualified marketplace contractor is responsible 263 for tax on the qualified marketplace contractor’s own income; 264 and 265 3. For services performed by a qualified marketplace 266 contractor before the effective date of this paragraph, the term 267 “employee” does not include a qualified marketplace contractor 268 if the services performed by the qualified marketplace 269 contractor were governed by a written contract executed between 270 the qualified marketplace contractor and a qualified marketplace 271 platform that conforms to the requirements of subparagraph (z)2. 272 Section 5. Subsection (2) of section 448.101, Florida 273 Statutes, is amended, present subsections (5) and (6) of that 274 section are redesignated as subsections (7) and (8), 275 respectively, and new subsections (5) and (6) are added to that 276 section, to read: 277 448.101 Definitions.—As used in ss. 448.101-448.105, the 278 term: 279 (2) “Employee” means a person who performs services for and 280 under the control and direction of an employer for wages or 281 other remuneration. The term does not include an independent 282 contractor or qualified marketplace contractor. 283 (5) “Qualified marketplace contractor” means: 284 (a) Any person or organization, including, but not limited 285 to, a natural person, corporation, limited liability company, 286 partnership, sole proprietor, or other entity, which enters into 287 a written agreement with a qualified marketplace platform to use 288 the qualified marketplace platform’s digital platform if the 289 written contract provides the following: 290 1. That the qualified marketplace contractor is providing 291 services as an independent contractor, and not as an employee; 292 2. That the qualified marketplace contractor may work any 293 hours or schedules that he or she chooses. However, if a 294 qualified marketplace contractor elects to work specified hours 295 or schedules, the contract or other written arrangement may 296 require the qualified marketplace contractor to perform work 297 during the selected hours or schedules; 298 3. That the contractor is free to engage in any other 299 occupation or business opportunity, including performing 300 services through other qualified marketplace platforms; 301 4. That the qualified marketplace contractor must provide, 302 at the contractor’s own expense, all or substantially all of the 303 necessary equipment, tools, and other materials to perform the 304 services; and 305 5. That the qualified marketplace contractor is responsible 306 for tax on the qualified marketplace contractor’s own income. 307 (b) The written contract referenced in paragraph (a) 308 includes written contracts entered into before the effective 309 date of this subsection. 310 (6) “Qualified marketplace platform” means an organization, 311 including, but not limited to, a corporation, limited liability 312 company, partnership, sole proprietor, or any other entity, 313 which operates a digital platform that facilitates the provision 314 of services by qualified marketplace contractors to third-party 315 individuals or entities seeking those services. 316 Section 6. If any provision of the amendments made by this 317 act to s. 205.022, s. 440.02, s. 443.036, s. 443.1216, or s. 318 448.101, Florida Statutes, or the application of any provision 319 of the amendments to any person or circumstance is held invalid, 320 the invalidity shall not affect other provisions or applications 321 of the amendments which can be given effect without the invalid 322 provision or application, and to this end, the provisions of the 323 amendments to those sections are declared to be severable. 324 325 ================= T I T L E A M E N D M E N T ================ 326 And the title is amended as follows: 327 Delete line 1288 328 and insert: 329 An act relating to taxation; amending ss. 205.022, 330 440.02, 443.036, 443.1216, and 448.101, F.S.; revising 331 definitions and defining terms; providing 332 severability; amending s. 125.0104,