2011 Florida Statutes
443.1216 Employment.—Employment, as defined in s. 443.036, is subject to this chapter under the following conditions:
(1)(a) The employment subject to this chapter includes a service performed, including a service performed in interstate commerce, by:
1. An officer of a corporation.
2. An individual who, under the usual common-law rules applicable in determining the employer-employee relationship, is an employee. However, whenever a client, as defined in s. 443.036(18), which would otherwise be designated as an employing unit has contracted with an employee leasing company to supply it with workers, those workers are considered employees of the employee leasing company. An employee leasing company may lease corporate officers of the client to the client and other workers to the client, except as prohibited by regulations of the Internal Revenue Service. Employees of an employee leasing company must be reported under the employee leasing company’s tax identification number and contribution rate for work performed for the employee leasing company.
a. In addition to any other report required to be filed by law, an employee leasing company shall submit a report to the Labor Market Statistics Center within the Department of Economic Opportunity which includes each client establishment and each establishment of the employee leasing company, or as otherwise directed by the department. The report must include the following information for each establishment:
(I) The trade or establishment name;
(II) The former unemployment compensation account number, if available;
(III) The former federal employer’s identification number (FEIN), if available;
(IV) The industry code recognized and published by the United States Office of Management and Budget, if available;
(V) A description of the client’s primary business activity in order to verify or assign an industry code;
(VI) The address of the physical location;
(VII) The number of full-time and part-time employees who worked during, or received pay that was subject to unemployment compensation taxes for, the pay period including the 12th of the month for each month of the quarter;
(VIII) The total wages subject to unemployment compensation taxes paid during the calendar quarter;
(IX) An internal identification code to uniquely identify each establishment of each client;
(X) The month and year that the client entered into the contract for services; and
(XI) The month and year that the client terminated the contract for services.
b. The report shall be submitted electronically or in a manner otherwise prescribed by the Department of Economic Opportunity in the format specified by the Bureau of Labor Statistics of the United States Department of Labor for its Multiple Worksite Report for Professional Employer Organizations. The report must be provided quarterly to the Labor Market Statistics Center within the department, or as otherwise directed by the department, and must be filed by the last day of the month immediately following the end of the calendar quarter. The information required in sub-sub-subparagraphs a.(X) and (XI) need be provided only in the quarter in which the contract to which it relates was entered into or terminated. The sum of the employment data and the sum of the wage data in this report must match the employment and wages reported in the unemployment compensation quarterly tax and wage report. A report is not required for any calendar quarter preceding the third calendar quarter of 2010.
c. The department shall adopt rules as necessary to administer this subparagraph, and may administer, collect, enforce, and waive the penalty imposed by s. 443.141(1)(b) for the report required by this subparagraph.
d. For the purposes of this subparagraph, the term “establishment” means any location where business is conducted or where services or industrial operations are performed.
3. An individual other than an individual who is an employee under subparagraph 1. or subparagraph 2., who performs services for remuneration for any person:
a. As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or drycleaning services for his or her principal.
b. As a traveling or city salesperson engaged on a full-time basis in the solicitation on behalf of, and the transmission to, his or her principal of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations. This sub-subparagraph does not apply to an agent-driver or a commission-driver and does not apply to sideline sales activities performed on behalf of a person other than the salesperson’s principal.
4. The services described in subparagraph 3. are employment subject to this chapter only if:
a. The contract of service contemplates that substantially all of the services are to be performed personally by the individual;
b. The individual does not have a substantial investment in facilities used in connection with the services, other than facilities used for transportation; and
c. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
(b) Notwithstanding any other provision of this section, service for which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
(c) If the services performed during at least one-half of a pay period by an employee for the person employing him or her constitute employment, all of the services performed by the employee during the period are deemed to be employment. If the services performed during more than one-half of the pay period by an employee for the person employing him or her do not constitute employment, all of the services performed by the employee during the period are not deemed to be employment. This paragraph does not apply to services performed in a pay period by an employee for the person employing him or her if any of those services are exempted under paragraph (13)(g).
(d) If two or more related corporations concurrently employ the same individual and compensate the individual through a common paymaster, each related corporation is considered to have paid wages to the individual only in the amounts actually disbursed by that corporation to the individual and is not considered to have paid the wages actually disbursed to the individual by another of the related corporations. The department and the state agency providing unemployment tax collection services may adopt rules necessary to administer this paragraph.
1. As used in this paragraph, the term “common paymaster” means a member of a group of related corporations that disburses wages to concurrent employees on behalf of the related corporations and that is responsible for keeping payroll records for those concurrent employees. A common paymaster is not required to disburse wages to all the employees of the related corporations; however, this subparagraph does not apply to wages of concurrent employees which are not disbursed through a common paymaster. A common paymaster must pay concurrently employed individuals under this subparagraph by one combined paycheck.
2. As used in this paragraph, the term “concurrent employment” means the existence of simultaneous employment relationships between an individual and related corporations. Those relationships require the performance of services by the employee for the benefit of the related corporations, including the common paymaster, in exchange for wages that, if deductible for the purposes of federal income tax, are deductible by the related corporations.
3. Corporations are considered related corporations for an entire calendar quarter if they satisfy any one of the following tests at any time during the calendar quarter:
a. The corporations are members of a “controlled group of corporations” as defined in s. 1563 of the Internal Revenue Code of 1986 or would be members if s. 1563(a)(4) and (b) did not apply.
b. In the case of a corporation that does not issue stock, at least 50 percent of the members of the board of directors or other governing body of one corporation are members of the board of directors or other governing body of the other corporation or the holders of at least 50 percent of the voting power to select those members are concurrently the holders of at least 50 percent of the voting power to select those members of the other corporation.
c. At least 50 percent of the officers of one corporation are concurrently officers of the other corporation.
d. At least 30 percent of the employees of one corporation are concurrently employees of the other corporation.
4. The common paymaster must report to the tax collection service provider, as part of the unemployment compensation quarterly tax and wage report, the state unemployment compensation account number and name of each related corporation for which concurrent employees are being reported. Failure to timely report this information shall result in the related corporations being denied common paymaster status for that calendar quarter.
5. The common paymaster also has the primary responsibility for remitting contributions due under this chapter for the wages it disburses as the common paymaster. The common paymaster must compute these contributions as though it were the sole employer of the concurrently employed individuals. If a common paymaster fails to timely remit these contributions or reports, in whole or in part, the common paymaster remains liable for the full amount of the unpaid portion of these contributions. In addition, each of the other related corporations using the common paymaster is jointly and severally liable for its appropriate share of these contributions. Each related corporation’s share equals the greater of:
a. The liability of the common paymaster under this chapter, after taking into account any contributions made.
b. The liability under this chapter which, notwithstanding this section, would have existed for the wages from the other related corporations, reduced by an allocable portion of any contributions previously paid by the common paymaster for those wages.
(2) The employment subject to this chapter includes service performed in the employ of a public employer as defined in s. 443.036, if the service is excluded from the definition of “employment” in s. 3306(c)(7) of the Federal Unemployment Tax Act and is not excluded from the employment subject to this chapter under subsection (4).
(3) The employment subject to this chapter includes service performed by an individual in the employ of a religious, charitable, educational, or other organization, if:
(a) The service is excluded from the definition of “employment” in the Federal Unemployment Tax Act solely by reason of s. 3306(c)(8) of that act; and
(b) The organization had at least four individuals in employment for some portion of a day in each of 20 different weeks during the current or preceding calendar year, regardless of whether the weeks were consecutive and whether the individuals were employed at the same time.
(4) For purposes of subsections (2) and (3), the employment subject to this chapter does not apply to service performed:
(a) In the employ of:
1. A church or a convention or association of churches.
2. An organization that is operated primarily for religious purposes and that is operated, supervised, controlled, or principally supported by a church or a convention or association of churches.
(b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order.
(c) In the employ of a public employer if the service is performed by an individual in the exercise of duties:
1. As an elected official.
2. As a member of a legislative body, or a member of the judiciary, of a state or a political subdivision of a state.
3. As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency.
4. In a position that, under state law, is designated as a major nontenured policymaking or advisory position, including any major nontenured policymaking or advisory position in the Senior Management Service created under s. 110.402, or a policymaking or advisory position for which the duties do not ordinarily require more than 8 hours per week.
5. As an election official or election worker if the amount of remuneration received by the individual during the calendar year for those services is less than $1,000.
(d) In a facility operating a program of rehabilitation for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury, or a program providing remunerative work for individuals who cannot be readily absorbed in the competitive labor market because of their impaired physical or mental capacity, by an individual receiving such rehabilitation or remunerative work.
(e) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision of a state, by an individual receiving the work relief or work training. This paragraph does not apply to unemployment work-relief or work-training programs for which unemployment compensation coverage is required by the Federal Government.
(f) By an inmate of a custodial or penal institution.
(5) The employment subject to this chapter includes service performed by an individual in agricultural labor if:
(a) The service is performed for a person who:
1. Paid remuneration in cash of at least $10,000 to individuals employed in agricultural labor in a calendar quarter during the current or preceding calendar year.
2. Employed in agricultural labor at least five individuals for some portion of a day in each of 20 different calendar weeks during the current or preceding calendar year, regardless of whether the weeks were consecutive or whether the individuals were employed at the same time.
(b) The service is performed by a member of a crew furnished by a crew leader to perform agricultural labor for another person.
1. For purposes of this paragraph, a crew member is treated as an employee of the crew leader if:
a. The crew leader holds a valid certificate of registration under the Migrant and Seasonal Agricultural Worker Protection Act of 1983 or substantially all of the crew members operate or maintain tractors, mechanized harvesting or crop-dusting equipment, or any other mechanized equipment provided by the crew leader; and
b. The individual does not perform that agricultural labor as an employee of an employer other than the crew leader.
2. For purposes of this paragraph, in the case of an individual who is furnished by a crew leader to perform agricultural labor for another person and who is not treated as an employee of the crew leader under subparagraph 1.:
a. The other person and not the crew leader is treated as the employer of the individual; and
b. The other person is treated as having paid cash remuneration to the individual equal to the cash remuneration paid to the individual by the crew leader, either on his or her own behalf or on behalf of the other person, for the agricultural labor performed for the other person.
(6) The employment subject to this chapter includes domestic service performed by maids, cooks, maintenance workers, chauffeurs, social secretaries, caretakers, private yacht crews, butlers, and houseparents, in a private home, local college club, or local chapter of a college fraternity or sorority performed for a person who paid cash remuneration of at least $1,000 during a calendar quarter in the current calendar year or the preceding calendar year to individuals employed in the domestic service.
(7) The employment subject to this chapter includes an individual’s entire service, performed inside or both inside and outside this state if:
(a) The service is localized within this state; or
(b) The service is not localized within any state, but some of the service is performed in this state, and:
1. The base of operations, or, if there is no base of operations, the place from which the service is directed or controlled, is located within this state; or
2. The base of operations or place from which the service is directed or controlled is not located within any state in which some part of the service is performed, but the individual’s residence is located within this state.
(8) Services not covered under paragraph (7)(b) which are performed entirely outside of this state, and for which contributions are not required or paid under an unemployment compensation law of any other state or of the Federal Government, are deemed to be employment subject to this chapter if the individual performing the services is a resident of this state and the tax collection service provider approves the election of the employing unit for whom the services are performed, electing that the entire service of the individual is deemed to be employment subject to this chapter.
(9) Service is deemed to be localized within a state if:
(a) The service is performed entirely inside the state; or
(b) The service is performed both inside and outside the state, but the service performed outside the state is incidental to the individual’s service inside the state. Incidental service includes, but is not limited to, service that is temporary or transitory in nature or consists of isolated transactions.
(10) The employment subject to this chapter includes service performed outside the United States, except in Canada, by a citizen of the United States who is in the employ of an American employer, other than service deemed employment subject to this chapter under subsection (2), subsection (3), or similar provisions of another state’s law, if:
(a) The employer’s principal place of business in the United States is located within this state.
(b) The employer does not have a place of business located in the United States, but:
1. The employer is a natural person who is a resident of this state.
2. The employer is a corporation organized under the laws of this state.
3. The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state.
(c) The employer is not an American employer, or neither paragraph (a) nor paragraph (b) apply, but the employer elects coverage in this state or the employer fails to elect coverage in any state and the individual files a claim for benefits based on that service under the laws of this state.
(11) The employment subject to this chapter includes all service performed by an officer or member of a crew of an American vessel or American aircraft on, or in connection with, the vessel or aircraft, if the operating office from which the operations of the vessel or aircraft operating inside or both inside and outside the United States is ordinarily and regularly supervised, managed, directed, and controlled within this state.
(12) The employment subject to this chapter includes services covered by a reciprocal arrangement under s. 443.221 between the Department of Economic Opportunity or its tax collection service provider and the agency charged with the administration of another state unemployment compensation law or a federal unemployment compensation law, under which all services performed by an individual for an employing unit are deemed to be performed entirely within this state, if the department or its tax collection service provider approved an election of the employing unit in which all of the services performed by the individual during the period covered by the election are deemed to be insured work.
(13) The following are exempt from coverage under this chapter:
(a) Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, except as provided in subsection (6).
(b) Service performed on or in connection with a vessel or aircraft that is not an American vessel or American aircraft, if the employee is employed on and in connection with the vessel or aircraft while the vessel or aircraft is outside the United States.
(c) Service performed by an individual engaged in, or as an officer or member of the crew of a vessel engaged in, the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, including service performed by an individual as an ordinary incident to engaging in those activities, except:
1. Service performed in connection with the catching or taking of salmon or halibut for commercial purposes.
2. Service performed on, or in connection with, a vessel of more than 10 net tons, determined in the manner provided for determining the registered tonnage of merchant vessels under the laws of the United States.
(d) Service performed by an individual in the employ of his or her son, daughter, or spouse, including step relationships, and service performed by a child, or stepchild, under the age of 21 in the employ of his or her father, mother, stepfather, or stepmother.
(e) Service performed in the employ of the Federal Government or of an instrumentality of the Federal Government which is:
1. Wholly or partially owned by the United States.
2. Exempt from the tax imposed by s. 3301 of the Internal Revenue Code under a federal law that specifically cites s. 3301, or the corresponding section of prior law, in granting the exemption. However, to the extent that the United States Congress permits the state to require an instrumentality of the Federal Government to make payments into the Unemployment Compensation Trust Fund under this chapter, this chapter applies to that instrumentality, and to services performed for that instrumentality, in the same manner, to the same extent, and on the same terms as other employers, employing units, individuals, and services. If this state is not certified for any year by the Secretary of Labor under s. 3304 of the federal Internal Revenue Code, the tax collection service provider shall refund the payments required of each instrumentality of the Federal Government for that year from the fund in the same manner and within the same period as provided in s. 443.141(6) for contributions erroneously collected.
(f) Service performed in the employ of a public employer as defined in s. 443.036, except as provided in subsection (2), and service performed in the employ of an instrumentality of a public employer as described in 1s. 443.036(35)(b) or (c), to the extent that the instrumentality is immune under the United States Constitution from the tax imposed by s. 3301 of the Internal Revenue Code for that service.
(g) Service performed in the employ of a corporation, community chest, fund, or foundation that is organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes or for the prevention of cruelty to children or animals. This exemption does not apply to an employer if part of the employer’s net earnings inures to the benefit of any private shareholder or individual or if a substantial part of the employer’s activities involve carrying on propaganda, otherwise attempting to influence legislation, or participating or intervening in, including the publishing or distributing of statements, a political campaign on behalf of a candidate for public office, except as provided in subsection (3).
(h) Service for which unemployment compensation is payable under an unemployment compensation system established by the United States Congress, of which this chapter is not a part.
(i)1. Service performed during a calendar quarter in the employ of an organization exempt from the federal income tax under s. 501(a) of the Internal Revenue Code, other than an organization described in s. 401(a), or under s. 521, if the remuneration for the service is less than $50.
2. Service performed in the employ of a school, college, or university, if the service is performed by a student who is enrolled and is regularly attending classes at the school, college, or university.
(j) Service performed in the employ of a foreign government, including service as a consular or other officer or employee of a nondiplomatic representative.
(k) Service performed in the employ of an instrumentality wholly owned by a foreign government if:
1. The service is of a character similar to that performed in foreign countries by employees of the Federal Government or of an instrumentality of the Federal Government; and
2. The United States Secretary of State certifies to the United States Secretary of the Treasury that the foreign government for whose instrumentality the exemption is claimed grants an equivalent exemption for similar service performed in the foreign country by employees of the Federal Government and of instrumentalities of the Federal Government.
(l) Service performed as a student nurse in the employ of a hospital or a nurses’ training school by an individual who is enrolled and is regularly attending classes in a nurses’ training school chartered or approved under state law, service performed as an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school chartered or approved under state law, and service performed by a patient of a hospital for the hospital.
(m) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all of the service performed by the individual for that person is performed for remuneration solely by way of commission, except for services performed in accordance with 26 U.S.C. s. 3306(c)(7) and (8). For purposes of this section, those benefits excluded from the wages subject to this chapter under s. 443.1217(2)(b)-(f), inclusive, are not considered remuneration.
(n) Service performed by an individual for a person as a real estate salesperson or agent, if all of the service performed by the individual for that person is performed for remuneration solely by way of commission.
(o) Service performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, excluding delivery or distribution to any point for subsequent delivery or distribution.
(p) Service covered by an arrangement between the Department of Economic Opportunity, or its tax collection service provider, and the agency charged with the administration of another state or federal unemployment compensation law under which all services performed by an individual for an employing unit during the period covered by the employing unit’s duly approved election is deemed to be performed entirely within the other agency’s state or under the federal law.
(q) Service performed by an individual enrolled at a nonprofit or public educational institution that normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, if the institution certifies to the employer that the individual is a student in a full-time program, taken for credit at the institution that combines academic instruction with work experience, and that the service is an integral part of the program. This paragraph does not apply to service performed in a program established for or on behalf of an employer or group of employers.
(r) Service performed by an individual for a person as a barber, if all of the service performed by the individual for that person is performed for remuneration solely by way of commission.
(s) Casual labor not in the course of the employer’s trade or business.
(t) Service performed by a speech therapist, occupational therapist, or physical therapist who is nonsalaried and working under a written contract with a home health agency as defined in s. 400.462.
(u) Service performed by a direct seller. As used in this paragraph, the term “direct seller” means a person:
1.a. Who is engaged in the trade or business of selling or soliciting the sale of consumer products to buyers on a buy-sell basis, on a deposit-commission basis, or on a similar basis, for resale in the home or in another place that is not a permanent retail establishment; or
b. Who is engaged in the trade or business of selling or soliciting the sale of consumer products in the home or in another place that is not a permanent retail establishment;
2. Substantially all of whose remuneration for services described in subparagraph 1., regardless of whether paid in cash, is directly related to sales or other output, rather than to the number of hours worked; and
3. Who performs the services under a written contract with the person for whom the services are performed, if the contract provides that the person will not be treated as an employee for those services for federal tax purposes.
(v) Service performed by a nonresident alien for the period he or she is temporarily present in the United States as a nonimmigrant under subparagraph (F) or subparagraph (J) of s. 101(a)(15) of the Immigration and Nationality Act, and which is performed to carry out the purpose specified in subparagraph (F) or subparagraph (J), as applicable.
(w) Service performed by an individual for remuneration for a private, for-profit delivery or messenger service, if the individual:
1. Is free to accept or reject jobs from the delivery or messenger service and the delivery or messenger service does not have control over when the individual works;
2. Is remunerated for each delivery, or the remuneration is based on factors that relate to the work performed, including receipt of a percentage of any rate schedule;
3. Pays all expenses, and the opportunity for profit or loss rests solely with the individual;
4. Is responsible for operating costs, including fuel, repairs, supplies, and motor vehicle insurance;
5. Determines the method of performing the service, including selection of routes and order of deliveries;
6. Is responsible for the completion of a specific job and is liable for any failure to complete that job;
7. Enters into a contract with the delivery or messenger service which specifies that the individual is an independent contractor and not an employee of the delivery or messenger service; and
8. Provides the vehicle used to perform the service.
(x) Service performed in agricultural labor by an individual who is an alien admitted to the United States to perform service in agricultural labor under ss. 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act.
(y) Service performed by a person who is an inmate of a penal institution.
History.—s. 30, ch. 2003-36; s. 4, ch. 2005-209; s. 33, ch. 2007-106; s. 3, ch. 2009-101; s. 363, ch. 2011-142.
1Note.—Redesignated as s. 443.036(36)(b) or (c) by s. 3, ch. 2011-235.