Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. SB 1416
Barcode 106710
LEGISLATIVE ACTION
Senate . House
Comm: FAV .
01/26/2012 .
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The Committee on Commerce and Tourism (Detert) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 639 - 987
4 and insert:
5 a. However, except for the internal employees of an
6 employee leasing company, each employee leasing company may make
7 a separate one-time election to report and pay contributions
8 under the tax identification number and contribution rate for
9 each client of the employee leasing company. Under the client
10 method, an employee leasing company choosing this option must
11 assign leased employees to the client company that is leasing
12 the employees. The client method is solely a method to report
13 and pay unemployment contributions and whichever method is
14 chosen, such election may not impact any other aspect of state
15 law. An employee leasing company that elects the client method
16 must pay contributions at the rates assigned to each client
17 company.
18 (I) The election applies to all of the employee leasing
19 company’s current and future clients.
20 (II) The employee leasing company must notify the
21 Department of Revenue of its election by July 1, 2012, and such
22 election applies to reports and contributions for the first
23 quarter of the following calendar year. The notification must
24 include:
25 (A) A list of each client company and the unemployment
26 account number or, if one has not yet been issued, the federal
27 employment identification number, as established by the employee
28 leasing company upon the election to file by client method;
29 (B) A list of each client company’s current and previous
30 employees and their respective social security numbers for the
31 prior 3 state fiscal years or, if the client company has not
32 been a client for the prior 3 state fiscal years, such portion
33 of the prior 3 state fiscal years that the client company has
34 been a client must be supplied;
35 (C) The wage data and benefit charges associated with each
36 client company for the prior 3 state fiscal years or, if the
37 client company has not been a client for the prior 3 state
38 fiscal years, such portion of the prior 3 state fiscal years
39 that the client company has been a client must be supplied. If
40 the client company’s employment record is chargeable with
41 benefits for less than 8 calendar quarters while being a client
42 of the employee leasing company, the client company must pay
43 contributions at the initial rate of 2.7 percent; and
44 (D) The wage data and benefit charges for the prior 3 state
45 fiscal years that cannot be associated with a client company
46 must be reported and charged to the employee leasing company.
47 (III) Subsequent to choosing the client method, the
48 employee leasing company may not change its reporting method.
49 (IV) The employee leasing company shall file a Florida
50 Department of Revenue Employer’s Quarterly Report for each
51 client company by approved electronic means, and pay all
52 contributions by approved electronic means.
53 (V) For the purposes of calculating experience rates when
54 the client method is chosen, each client’s own benefit charges
55 and wage data experience while with the employee leasing company
56 determines each client’s tax rate where the client has been a
57 client of the employee leasing company for at least 8 calendar
58 quarters before the election. The client company shall continue
59 to report the nonleased employees under its tax rate.
60 (VI) The election is binding on each client of the employee
61 leasing company, for as long as a written agreement is in effect
62 between the client and the employee leasing company pursuant to
63 s. 468.525(3)(a). If the relationship between the employee
64 leasing company and the client terminates, the client retains
65 the wage and benefit history experienced under the employee
66 leasing company.
67 (VII) Notwithstanding which election method the employee
68 leasing company chooses, the applicable client company is an
69 employing unit for purposes of s. 443.071. The employee leasing
70 company or any of its officers or agents are liable for any
71 violation of s. 443.071 engaged in by such persons or entities.
72 The applicable client company or any of its officers or agents
73 are liable for any violation of s. 443.071 engaged in by such
74 persons or entities. The employee leasing company or its
75 applicable client company are not liable for any violation of s.
76 443.071 engaged in by the other party or by the other party’s
77 officers or agents.
78 (VIII) If an employee leasing company fails to select the
79 client method of reporting not later than July 1, 2012, the
80 entity is required to report under the employee leasing
81 company’s tax identification number and contribution rate.
82 (IX) After an employee leasing company is licensed pursuant
83 to part XI of chapter 468, each newly licensed entity has 30
84 days after the date the license is granted to notify the tax
85 collection service provider in writing of their selection of the
86 client method. A newly licensed employee leasing company that
87 fails to timely select reporting pursuant to the client method
88 of reporting must report under the employee leasing company’s
89 tax identification number and contribution rate.
90 (X) Irrespective of the election, each transfer of trade or
91 business, including workforce, or a portion thereof, between
92 employee leasing companies is subject to the provisions of s.
93 443.131(3)(g) if, at the time of the transfer, there is common
94 ownership, management, or control between the entities.
95 b.a. In addition to any other report required to be filed
96 by law, an employee leasing company shall submit a report to the
97 Labor Market Statistics Center within the Department of Economic
98 Opportunity which includes each client establishment and each
99 establishment of the employee leasing company, or as otherwise
100 directed by the department. The report must include the
101 following information for each establishment:
102 (I) The trade or establishment name;
103 (II) The former reemployment assistance unemployment
104 compensation account number, if available;
105 (III) The former federal employer’s identification number
106 (FEIN), if available;
107 (IV) The industry code recognized and published by the
108 United States Office of Management and Budget, if available;
109 (V) A description of the client’s primary business activity
110 in order to verify or assign an industry code;
111 (VI) The address of the physical location;
112 (VII) The number of full-time and part-time employees who
113 worked during, or received pay that was subject to reemployment
114 assistance unemployment compensation taxes for, the pay period
115 including the 12th of the month for each month of the quarter;
116 (VIII) The total wages subject to reemployment assistance
117 unemployment compensation taxes paid during the calendar
118 quarter;
119 (IX) An internal identification code to uniquely identify
120 each establishment of each client;
121 (X) The month and year that the client entered into the
122 contract for services; and
123 (XI) The month and year that the client terminated the
124 contract for services.
125 c.b. The report must shall be submitted electronically or
126 in a manner otherwise prescribed by the Department of Economic
127 Opportunity in the format specified by the Bureau of Labor
128 Statistics of the United States Department of Labor for its
129 Multiple Worksite Report for Professional Employer
130 Organizations. The report must be provided quarterly to the
131 Labor Market Statistics Center within the department, or as
132 otherwise directed by the department, and must be filed by the
133 last day of the month immediately after following the end of the
134 calendar quarter. The information required in sub-sub
135 subparagraphs b.(X) and (XI) a.(X) and (XI) need be provided
136 only in the quarter in which the contract to which it relates
137 was entered into or terminated. The sum of the employment data
138 and the sum of the wage data in this report must match the
139 employment and wages reported in the reemployment assistance
140 unemployment compensation quarterly tax and wage report. A
141 report is not required for any calendar quarter preceding the
142 third calendar quarter of 2010.
143 d.c. The department shall adopt rules as necessary to
144 administer this subparagraph, and may administer, collect,
145 enforce, and waive the penalty imposed by s. 443.141(1)(b) for
146 the report required by this subparagraph.
147 e.d. For the purposes of this subparagraph, the term
148 “establishment” means any location where business is conducted
149 or where services or industrial operations are performed.
150 3. An individual other than an individual who is an
151 employee under subparagraph 1. or subparagraph 2., who performs
152 services for remuneration for any person:
153 a. As an agent-driver or commission-driver engaged in
154 distributing meat products, vegetable products, fruit products,
155 bakery products, beverages other than milk, or laundry or
156 drycleaning services for his or her principal.
157 b. As a traveling or city salesperson engaged on a full
158 time basis in the solicitation on behalf of, and the
159 transmission to, his or her principal of orders from
160 wholesalers, retailers, contractors, or operators of hotels,
161 restaurants, or other similar establishments for merchandise for
162 resale or supplies for use in the their business operations.
163 This sub-subparagraph does not apply to an agent-driver or a
164 commission-driver and does not apply to sideline sales
165 activities performed on behalf of a person other than the
166 salesperson’s principal.
167 4. The services described in subparagraph 3. are employment
168 subject to this chapter only if:
169 a. The contract of service contemplates that substantially
170 all of the services are to be performed personally by the
171 individual;
172 b. The individual does not have a substantial investment in
173 facilities used in connection with the services, other than
174 facilities used for transportation; and
175 c. The services are not in the nature of a single
176 transaction that is not part of a continuing relationship with
177 the person for whom the services are performed.
178 (d) If two or more related corporations concurrently employ
179 the same individual and compensate the individual through a
180 common paymaster, each related corporation is considered to have
181 paid wages to the individual only in the amounts actually
182 disbursed by that corporation to the individual and is not
183 considered to have paid the wages actually disbursed to the
184 individual by another of the related corporations. The
185 department and the state agency providing reemployment
186 assistance unemployment tax collection services may adopt rules
187 necessary to administer this paragraph.
188 1. As used in this paragraph, the term “common paymaster”
189 means a member of a group of related corporations that disburses
190 wages to concurrent employees on behalf of the related
191 corporations and that is responsible for keeping payroll records
192 for those concurrent employees. A common paymaster is not
193 required to disburse wages to all the employees of the related
194 corporations; however, this subparagraph does not apply to wages
195 of concurrent employees which are not disbursed through a common
196 paymaster. A common paymaster must pay concurrently employed
197 individuals under this subparagraph by one combined paycheck.
198 2. As used in this paragraph, the term “concurrent
199 employment” means the existence of simultaneous employment
200 relationships between an individual and related corporations.
201 Those relationships require the performance of services by the
202 employee for the benefit of the related corporations, including
203 the common paymaster, in exchange for wages that, if deductible
204 for the purposes of federal income tax, are deductible by the
205 related corporations.
206 3. Corporations are considered related corporations for an
207 entire calendar quarter if they satisfy any one of the following
208 tests at any time during the calendar quarter:
209 a. The corporations are members of a “controlled group of
210 corporations” as defined in s. 1563 of the Internal Revenue Code
211 of 1986 or would be members if s. 1563(a)(4) and (b) did not
212 apply.
213 b. In the case of a corporation that does not issue stock,
214 at least 50 percent of the members of the board of directors or
215 other governing body of one corporation are members of the board
216 of directors or other governing body of the other corporation or
217 the holders of at least 50 percent of the voting power to select
218 those members are concurrently the holders of at least 50
219 percent of the voting power to select those members of the other
220 corporation.
221 c. At least 50 percent of the officers of one corporation
222 are concurrently officers of the other corporation.
223 d. At least 30 percent of the employees of one corporation
224 are concurrently employees of the other corporation.
225 4. The common paymaster must report to the tax collection
226 service provider, as part of the reemployment assistance
227 unemployment compensation quarterly tax and wage report, the
228 state reemployment assistance unemployment compensation account
229 number and name of each related corporation for which concurrent
230 employees are being reported. Failure to timely report this
231 information shall result in the related corporations being
232 denied common paymaster status for that calendar quarter.
233 5. The common paymaster shall remit also has the primary
234 responsibility for remitting contributions due under this
235 chapter for the wages it disburses as the common paymaster. The
236 common paymaster must compute these contributions as though it
237 were the sole employer of the concurrently employed individuals.
238 If a common paymaster fails to timely remit these contributions
239 or reports, in whole or in part, the common paymaster is remains
240 liable for the full amount of the unpaid portion of these
241 contributions. In addition, each of the other related
242 corporations using the common paymaster is jointly and severally
243 liable for its appropriate share of these contributions. Each
244 related corporation’s share equals the greater of:
245 a. The liability of the common paymaster under this
246 chapter, after taking into account any contributions made.
247 b. The liability under this chapter which, notwithstanding
248 this section, would have existed for the wages from the other
249 related corporations, reduced by an allocable portion of any
250 contributions previously paid by the common paymaster for those
251 wages.
252 (8) Services not covered under paragraph (7)(b) which are
253 performed entirely outside of this state, and for which
254 contributions are not required or paid under a reemployment
255 assistance or an unemployment compensation law of any other
256 state or of the Federal Government, are deemed to be employment
257 subject to this chapter if the individual performing the
258 services is a resident of this state and the tax collection
259 service provider approves the election of the employing unit for
260 whom the services are performed, electing that the entire
261 service of the individual is deemed to be employment subject to
262 this chapter.
263 (12) The employment subject to this chapter includes
264 services covered by a reciprocal arrangement under s. 443.221
265 between the Department of Economic Opportunity or its tax
266 collection service provider and the agency charged with the
267 administration of another state reemployment assistance or
268 unemployment compensation law or a federal reemployment
269 assistance or unemployment compensation law, under which all
270 services performed by an individual for an employing unit are
271 deemed to be performed entirely within this state, if the
272 department or its tax collection service provider approved an
273 election of the employing unit in which all of the services
274 performed by the individual during the period covered by the
275 election are deemed to be insured work.
276 (13) The following are exempt from coverage under this
277 chapter:
278 (f) Service performed in the employ of a public employer as
279 defined in s. 443.036, except as provided in subsection (2), and
280 service performed in the employ of an instrumentality of a
281 public employer as described in s. 443.036(36)(b) or (c)
282 443.036(35)(b) or (c), to the extent that the instrumentality is
283 immune under the United States Constitution from the tax imposed
284 by s. 3301 of the Internal Revenue Code for that service.
285 (h) Service for which reemployment assistance unemployment
286 compensation is payable under a reemployment assistance or an
287 unemployment compensation system established by the United
288 States Congress, of which this chapter is not a part.
289 (p) Service covered by an arrangement between the
290 Department of Economic Opportunity, or its tax collection
291 service provider, and the agency charged with the administration
292 of another state or federal reemployment assistance or
293 unemployment compensation law under which all services performed
294 by an individual for an employing unit during the period covered
295 by the employing unit’s duly approved election is deemed to be
296 performed entirely within the other agency’s state or under the
297 federal law.
298 Section 13. Paragraph (a) and (f) of subsection (3) of
299 section 443.131, Florida Statutes, are amended to read:
300 443.131 Contributions.—
301 (3) VARIATION OF CONTRIBUTION RATES BASED ON BENEFIT
302 EXPERIENCE.—
303 (a) Employment records.—The regular and short-time
304 compensation benefits paid to an eligible individual shall be
305 charged to the employment record of each employer who paid the
306 individual wages of at least $100 during the individual’s base
307 period in proportion to the total wages paid by all employers
308 who paid the individual wages during the individual’s base
309 period. Benefits may not be charged to the employment record of
310 an employer who furnishes part-time work to an individual who,
311 because of loss of employment with one or more other employers,
312 is eligible for partial benefits while being furnished part-time
313 work by the employer on substantially the same basis and in
314 substantially the same amount as the individual’s employment
315 during his or her base period, regardless of whether this part
316 time work is simultaneous or successive to the individual’s lost
317 employment. Further, as provided in s. 443.151(3), benefits may
318 not be charged to the employment record of an employer who
319 furnishes the Department of Economic Opportunity with notice, as
320 prescribed in rules of the department, that any of the following
321 apply:
322 1. If an individual leaves his or her work without good
323 cause attributable to the employer or is discharged by the
324 employer for misconduct connected with his or her work, benefits
325 subsequently paid to the individual based on wages paid by the
326 employer before the separation may not be charged to the
327 employment record of the employer.
328 2. If an individual is discharged by the employer for
329 unsatisfactory performance during an initial employment
330 probationary period, benefits subsequently paid to the
331 individual based on wages paid during the probationary period by
332 the employer before the separation may not be charged to the
333 employer’s employment record. As used in this subparagraph, the
334 term “initial employment probationary period” means an
335 established probationary plan that applies to all employees or a
336 specific group of employees and that does not exceed 90 calendar
337 days following the first day a new employee begins work. The
338 employee must be informed of the probationary period within the
339 first 7 days of work. The employer must demonstrate by
340 conclusive evidence that the individual was separated because of
341 unsatisfactory work performance and not because of lack of work
342 due to temporary, seasonal, casual, or other similar employment
343 that is not of a regular, permanent, and year-round nature.
344 3. Benefits subsequently paid to an individual after his or
345 her refusal without good cause to accept suitable work from an
346 employer may not be charged to the employment record of the
347 employer if any part of those benefits are based on wages paid
348 by the employer before the individual’s refusal to accept
349 suitable work. As used in this subparagraph, the term “good
350 cause” does not include distance to employment caused by a
351 change of residence by the individual. The department shall
352 adopt rules prescribing for the payment of all benefits whether
353 this subparagraph applies regardless of whether a
354 disqualification under s. 443.101 applies to the claim.
355 4. If an individual is separated from work as a direct
356 result of a natural disaster declared under the Robert T.
357 Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
358 ss. 5121 et seq., benefits subsequently paid to the individual
359 based on wages paid by the employer before the separation may
360 not be charged to the employment record of the employer.
361 5. If an individual is separated from work as a direct
362 result of an oil spill, terrorist attack, or other similar
363 disaster of national significance not subject to a declaration
364 under the Robert T. Stafford Disaster Relief and Emergency
365 Assistance Act, benefits subsequently paid to the individual
366 based on wages paid by the employer before the separation may
367 not be charged to the employment record of the employer.
368 (f) Transfer of employment records.—
369 1. For the purposes of this subsection, two or more
370 employers who are parties to a transfer of business or the
371 subject of a merger, consolidation, or other form of
372 reorganization, effecting a change in legal identity or form,
373 are deemed a single employer and are considered to be one
374 employer with a continuous employment record if the tax
375 collection service provider finds that the successor employer
376 continues to carry on the employing enterprises of all of the
377 predecessor employers and that the successor employer has paid
378 all contributions required of and due from all of the
379 predecessor employers and has assumed liability for all
380 contributions that may become due from all of the predecessor
381 employers. In addition, an employer may not be considered a
382 successor under this subparagraph if the employer purchases a
383 company with a lower rate into which employees with job
384 functions unrelated to the business endeavors of the predecessor
385 are transferred for the purpose of acquiring the low rate and
386 avoiding payment of contributions. As used in this paragraph,
387 notwithstanding s. 443.036(14), the term “contributions” means
388 all indebtedness to the tax collection service provider,
389 including, but not limited to, interest, penalty, collection
390 fee, and service fee. A successor employer must accept the
391 transfer of all of the predecessor employers’ employment records
392 within 30 days after the date of the official notification of
393 liability by succession. If a predecessor employer has unpaid
394 contributions or outstanding quarterly reports, the successor
395 employer must pay the total amount with certified funds within
396 30 days after the date of the notice listing the total amount
397 due. After the total indebtedness is paid, the tax collection
398 service provider shall transfer the employment records of all of
399 the predecessor employers to the successor employer’s employment
400 record. The tax collection service provider shall determine the
401 contribution rate of the combined successor and predecessor
402 employers upon the transfer of the employment records, as
403 prescribed by rule, in order to calculate any change in the
404 contribution rate resulting from the transfer of the employment
405 records.
406 2. Regardless of whether a predecessor employer’s
407 employment record is transferred to a successor employer under
408 this paragraph, the tax collection service provider shall treat
409 the predecessor employer, if he or she subsequently employs
410 individuals, as an employer without a previous employment record
411 or, if his or her coverage is terminated under s. 443.121, as a
412 new employing unit.
413 3. The state agency providing reemployment assistance
414 unemployment tax collection services may adopt rules governing
415 the partial transfer of experience rating when an employer
416 transfers an identifiable and segregable portion of his or her
417 payrolls and business to a successor employing unit. As a
418 condition of each partial transfer, these rules must require the
419 following to be filed with the tax collection service provider:
420 an application by the successor employing unit, an agreement by
421 the predecessor employer, and the evidence required by the tax
422 collection service provider to show the benefit experience and
423 payrolls attributable to the transferred portion through the
424 date of the transfer. These rules must provide that the
425 successor employing unit, if not an employer subject to this
426 chapter, becomes an employer as of the date of the transfer and
427 that the transferred portion of the predecessor employer’s
428 employment record is removed from the employment record of the
429 predecessor employer. For each calendar year after the date of
430 the transfer of the employment record in the records of the tax
431 collection service provider, the service provider shall compute
432 the contribution rate payable by the successor employer or
433 employing unit based on his or her employment record, combined
434 with the transferred portion of the predecessor employer’s
435 employment record. These rules may also prescribe what
436 contribution rates are payable by the predecessor and successor
437 employers for the period between the date of the transfer of the
438 transferred portion of the predecessor employer’s employment
439 record in the records of the tax collection service provider and
440 the first day of the next calendar year.
441 4. This paragraph does not apply to an employee leasing
442 company and client contractual agreement as defined in s.
443 443.036, except as provided in s. 443.1216(1)(a)2.a. The tax
444 collection service provider shall, if the
445
446 ================= T I T L E A M E N D M E N T ================
447 And the title is amended as follows:
448 Delete line 20
449 and insert:
450 Act; amending s. 443.1216, F.S.; providing that
451 employee leasing companies may make a one-time
452 election to report leased employees under the
453 respective unemployment account of each leasing
454 company client; providing procedures and application
455 for such election; revising references to conform to
456 the changes made by the act; amending s. 443.131,
457 F.S.; prohibiting benefits
458 Delete line 44
459 and insert:
460 443.1116, 443.1215, 443.1312, 443.1313,