House Bill hb0227

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    Florida House of Representatives - 2001                 HB 227

        By Representative Henriquez






  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; excluding certain

  4         sports officials from the definition of

  5         "employee"; providing an effective date.

  6

  7  Be It Enacted by the Legislature of the State of Florida:

  8

  9         Section 1.  Paragraph (d) of subsection (14) of section

10  440.02, Florida Statutes, is amended to read:

11         440.02  Definitions.--When used in this chapter, unless

12  the context clearly requires otherwise, the following terms

13  shall have the following meanings:

14         (14)

15         (d)  "Employee" does not include:

16         1.  An independent contractor, if:

17         a.  The independent contractor maintains a separate

18  business with his or her own work facility, truck, equipment,

19  materials, or similar accommodations;

20         b.  The independent contractor holds or has applied for

21  a federal employer identification number, unless the

22  independent contractor is a sole proprietor who is not

23  required to obtain a federal employer identification number

24  under state or federal requirements;

25         c.  The independent contractor performs or agrees to

26  perform specific services or work for specific amounts of

27  money and controls the means of performing the services or

28  work;

29         d.  The independent contractor incurs the principal

30  expenses related to the service or work that he or she

31  performs or agrees to perform;

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    Florida House of Representatives - 2001                 HB 227

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  1         e.  The independent contractor is responsible for the

  2  satisfactory completion of work or services that he or she

  3  performs or agrees to perform and is or could be held liable

  4  for a failure to complete the work or services;

  5         f.  The independent contractor receives compensation

  6  for work or services performed for a commission or on a

  7  per-job or competitive-bid basis and not on any other basis;

  8         g.  The independent contractor may realize a profit or

  9  suffer a loss in connection with performing work or services;

10         h.  The independent contractor has continuing or

11  recurring business liabilities or obligations; and

12         i.  The success or failure of the independent

13  contractor's business depends on the relationship of business

14  receipts to expenditures.

15

16  However, the determination as to whether an individual

17  included in the Standard Industrial Classification Manual of

18  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

19  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

20  2448, or 2449, or a newspaper delivery person, is an

21  independent contractor is governed not by the criteria in this

22  paragraph but by common-law principles, giving due

23  consideration to the business activity of the individual.

24         2.  A real estate salesperson or agent, if that person

25  agrees, in writing, to perform for remuneration solely by way

26  of commission.

27         3.  Bands, orchestras, and musical and theatrical

28  performers, including disk jockeys, performing in licensed

29  premises as defined in chapter 562, if a written contract

30  evidencing an independent contractor relationship is entered

31  into before the commencement of such entertainment.

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    Florida House of Representatives - 2001                 HB 227

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  1         4.  An owner-operator of a motor vehicle who transports

  2  property under a written contract with a motor carrier which

  3  evidences a relationship by which the owner-operator assumes

  4  the responsibility of an employer for the performance of the

  5  contract, if the owner-operator is required to furnish the

  6  necessary motor vehicle equipment and all costs incidental to

  7  the performance of the contract, including, but not limited

  8  to, fuel, taxes, licenses, repairs, and hired help; and the

  9  owner-operator is paid a commission for transportation service

10  and is not paid by the hour or on some other time-measured

11  basis.

12         5.  A person whose employment is both casual and not in

13  the course of the trade, business, profession, or occupation

14  of the employer.

15         6.  A volunteer, except a volunteer worker for the

16  state or a county, municipality, or other governmental entity.

17  A person who does not receive monetary remuneration for

18  services is presumed to be a volunteer unless there is

19  substantial evidence that a valuable consideration was

20  intended by both employer and employee. For purposes of this

21  chapter, the term "volunteer" includes, but is not limited to:

22         a.  Persons who serve in private nonprofit agencies and

23  who receive no compensation other than expenses in an amount

24  less than or equivalent to the standard mileage and per diem

25  expenses provided to salaried employees in the same agency or,

26  if such agency does not have salaried employees who receive

27  mileage and per diem, then such volunteers who receive no

28  compensation other than expenses in an amount less than or

29  equivalent to the customary mileage and per diem paid to

30  salaried workers in the community as determined by the

31  division; and

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    Florida House of Representatives - 2001                 HB 227

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  1         b.  Volunteers participating in federal programs

  2  established under Pub. L. No. 93-113.

  3         7.  Any officer of a corporation who elects to be

  4  exempt from this chapter.

  5         8.  A sole proprietor or officer of a corporation who

  6  actively engages in the construction industry, and a partner

  7  in a partnership that is actively engaged in the construction

  8  industry, who elects to be exempt from the provisions of this

  9  chapter. Such sole proprietor, officer, or partner is not an

10  employee for any reason until the notice of revocation of

11  election filed pursuant to s. 440.05 is effective.

12         9.  An exercise rider who does not work for a single

13  horse farm or breeder, and who is compensated for riding on a

14  case-by-case basis, provided a written contract is entered

15  into prior to the commencement of such activity which

16  evidences that an employee/employer relationship does not

17  exist.

18         10.  A taxicab, limousine, or other passenger

19  vehicle-for-hire driver who operates said vehicles pursuant to

20  a written agreement with a company which provides any

21  dispatch, marketing, insurance, communications, or other

22  services under which the driver and any fees or charges paid

23  by the driver to the company for such services are not

24  conditioned upon, or expressed as a proportion of, fare

25  revenues.

26         11.  A person who performs services as a sports

27  official for an entity sponsoring an interscholastic sports

28  event or for a public entity or private, nonprofit

29  organization that sponsors an amateur sports event.  For

30  purposes of this subparagraph, such a person is an independent

31  contractor.  For purposes of this subparagraph, the term

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    Florida House of Representatives - 2001                 HB 227

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  1  "sports official" means any person who is a neutral

  2  participant in a sports event, including, but not limited to,

  3  umpires, referees, judges, linespersons, scorekeepers, or

  4  timekeepers. This subparagraph does not apply to any person

  5  employed by a district school board who serves as a sports

  6  official as required by the employing school board or who

  7  serves as a sports official as part of his or her

  8  responsibilities during normal school hours.

  9         Section 2.  This act shall take effect upon becoming a

10  law.

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12            *****************************************

13                          HOUSE SUMMARY

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      Excludes from the definition of the term "employee," for
15    purposes of workers' compensation, independent
      contractors who are sports officials for an entity
16    sponsoring an interscholastic sports event or for a
      public entity or private, nonprofit organization that
17    sponsors an amateur sports event. See bill for details.

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