Florida Senate - 2016                          SENATOR AMENDMENT
       Bill No. HB 7099, 2nd Eng.
       
       
       
       
       
       
                                Ì327386IÎ327386                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             03/10/2016 12:05 PM       .                                
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       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 meaning
   13         (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,