The Florida Senate

440.107  Department powers to enforce employer compliance with coverage requirements.--

(1)  The Legislature finds that the failure of an employer to comply with the workers' compensation coverage requirements under this chapter poses an immediate danger to public health, safety, and welfare. The Legislature authorizes the department to secure employer compliance with the workers' compensation coverage requirements and authorizes the department to conduct investigations for the purpose of ensuring employer compliance.

(2)  The department and its authorized representatives may enter and inspect any place of business at any reasonable time for the limited purpose of investigating compliance with workers' compensation coverage requirements under this chapter. Each employer shall keep true and accurate business records that contain such information as the department prescribes by rule. The business records must contain information necessary for the department to determine compliance with workers' compensation coverage requirements and must be maintained within this state by the business, in such a manner as to be accessible within a reasonable time upon request by the department. The business records must be open to inspection and be available for copying by the department at any reasonable time and place and as often as necessary. The department may require from any employer any sworn or unsworn reports, pertaining to persons employed by that employer, deemed necessary for the effective administration of the workers' compensation coverage requirements.

(3)  In discharging its duties, the department may administer oaths and affirmations, certify to official acts, issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary by the department as evidence in order to ensure proper compliance with the coverage provisions of this chapter.

(4)  If a person has refused to obey a subpoena to appear before the department or its authorized representative and produce evidence requested by the department or to give testimony about the matter that is under investigation, a court has jurisdiction to issue an order requiring compliance with the subpoena if the court has jurisdiction in the geographical area where the inquiry is being carried on or in the area where the person who has refused the subpoena is found, resides, or transacts business. Failure to obey such a court order may be punished by the court as contempt.

(5)  Whenever the department determines that an employer who is required to secure the payment to his or her employees of the compensation provided for by this chapter has failed to do so, such failure shall be deemed an immediate serious danger to public health, safety, or welfare sufficient to justify service by the department of a stop-work order on the employer, requiring the cessation of all business operations at the place of employment or job site. If the ¹division makes such a determination, the ¹division shall issue a stop-work order within 72 hours. The order shall take effect upon the date of service upon the employer, unless the employer provides evidence satisfactory to the department of having secured any necessary insurance or self-insurance and pays a civil penalty to the department, to be deposited by the department into the Workers' Compensation Administration Trust Fund, in the amount of $100 per day for each day the employer was not in compliance with this chapter.

(6)  The department may file a complaint in the circuit court in and for Leon County to enjoin any employer, who has failed to secure compensation as required by this chapter, from employing individuals and from conducting business until the employer presents evidence satisfactory to the department of having secured payment for compensation and pays a civil penalty to the department, to be deposited by the department into the Workers' Compensation Administration Trust Fund, in the amount of $100 per day for each day the employer was not in compliance with this chapter.

(7)  In addition to any penalty, stop-work order, or injunction, the department shall assess against any employer, who has failed to secure the payment of compensation as required by this chapter, a penalty in the following amount:

(a)  An amount equal to at least the amount that the employer would have paid or up to twice the amount the employer would have paid during periods it illegally failed to secure payment of compensation in the preceding 3-year period based on the employer's payroll during the preceding 3-year period; or

(b)  One thousand dollars, whichever is greater.

Any penalty assessed under this subsection is due within 30 days after the date on which the employer is notified, except that, if the department has posted a stop-work order or obtained injunctive relief against the employer, payment is due, in addition to those conditions set forth in this section, as a condition to relief from a stop-work order or an injunction. Interest shall accrue on amounts not paid when due at the rate of 1 percent per month. The ¹division shall adopt rules to administer this section.

(8)  The department may bring an action in circuit court to recover penalties assessed under this section, including any interest owed to the department pursuant to this section. In any action brought by the department pursuant to this section in which it prevails, the circuit court shall award costs, including the reasonable costs of investigation and a reasonable attorney's fee.

(9)  Any judgment obtained by the department and any penalty due pursuant to the service of a stop-work order or otherwise due under this section shall, until collected, constitute a lien upon the entire interest of the employer, legal or equitable, in any property, real or personal, tangible or intangible; however, such lien is subordinate to claims for unpaid wages and any prior recorded liens, and a lien created by this section is not valid against any person who, subsequent to such lien and in good faith and for value, purchases real or personal property from such employer or becomes the mortgagee on real or personal property of such employer, or against a subsequent attaching creditor, unless, with respect to real estate of the employer, a notice of the lien is recorded in the public records of the county where the real estate is located, and with respect to personal property of the employer, the notice is recorded with the Secretary of State.

(10)  Any law enforcement agency in the state may, at the request of the department, render any assistance necessary to carry out the provisions of this section, including, but not limited to, preventing any employee or other person from remaining at a place of employment or job site after a stop-work order or injunction has taken effect.

(11)  Actions by the department under this section must be contested as provided in chapter 120. All civil penalties assessed by the department must be paid into the Workers' Compensation Administration Trust Fund. The department shall return any sums previously paid, upon conclusion of an action, if the department fails to prevail and if so directed by an order of court or an administrative hearing officer. The requirements of this subsection may be met by posting a bond in an amount equal to twice the penalty and in a form approved by the department.

(12)  If the ¹division finds that an employer who is certified or registered under part I or part II of chapter 489 and who is required to secure payment of the compensation provided for by this chapter to his or her employees has failed to do so, the ¹division shall immediately notify the Department of Business and Professional Regulation.

History.--s. 15, ch. 93-415; s. 107, ch. 97-103; s. 8, ch. 98-174; s. 21, ch. 2002-194; s. 8, ch. 2002-236.

¹Note.--The Division of Workers' Compensation of the Department of Labor and Employment Security was transferred to the Department of Insurance by s. 1, ch. 2002-194. Section 21, ch. 2002-194, replaced existing references to the division in s. 440.107 with references to the Department of Insurance.