Florida's Worker

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Florida's Workers Compensation Law
Independent Contractors

• Ray A. Mundy, Ph.D.
• University of Missouri St. Louis
• AGTA Spring Conference
• Ft. Myers, Florida, March 28th, 2011

2
Who decides if a worker is an Employee or an
Independent Contractor?

• State Employment Agency
• EEOC
• IRS
• NLRB
• Fair Labor Standards Act
• Class Action Lawsuits for overtime wages, meal
  breaks.
• The Courts

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Florida State Section 440.02(15)(d)10

• Employee does not include a taxicab, limousine,
  or other passenger vehicle-for-hire driver who
  operates said vehicles pursuant to a written
  agreement with a company which provides any
  dispatch, marketing, insurance, communications or
  other services under which the driver and any
  fees or charges paid by the driver to the company
  for such services are not conditioned upon, or
  expressed as a proportion of, fare revenues

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Section 440.02(15)(d)1

• a.  In order to meet the definition of
  independent contractor, at least four of the
  following criteria must be met
• (I)  The independent contractor maintains a
  separate business with his or her own work
  facility, truck, equipment, materials, or similar
  accommodations
• (II)  The independent contractor holds or has
  applied for a federal employer identification
  number, unless the independent contractor is a
  sole proprietor who is not required to obtain a
  federal employer identification number under
  state or federal regulations
• (III)  The independent contractor receives
  compensation for services rendered or work
  performed and such compensation is paid to a
  business rather than to an individual

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Section 440.02(15)(d)1

• (IV)  The independent contractor holds one or
  more bank accounts in the name of the business
  entity for purposes of paying business expenses
  or other expenses related to services rendered or
  work performed for compensation
• (V)  The independent contractor performs work or
  is able to perform work for any entity in
  addition to or besides the employer at his or her
  own election without the necessity of completing
  an employment application or process or
• (VI)  The independent contractor receives
  compensation for work or services rendered on a
  competitive-bid basis or completion of a task or
  a set of tasks as defined by a contractual
  agreement, unless such contractual agreement
  expressly states that an employment relationship
  exists.

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EEOC Who is an Employee

• The employer has the right to control when,
  where, and how the worker performs the job.
• The work does not require a high level of skill
  or expertise.
• The employer furnishes the tools, materials, and
  equipment.
• The work is performed on the employer's premises.
  
• There is a continuing relationship between the
  worker and the employer.
• The employer has the right to assign additional
  projects to the worker.
• The employer sets the hours of work and the
  duration of the job.
• The worker is paid by the hour, week, or month
  rather than the agreed cost of performing a
  particular job.

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EEOC Who is an Employee

• The worker does not hire and pay assistants.
• The work performed by the worker is part of the
  regular business of the employer.
• The employer is in business.
• The worker is not engaged in his/her own distinct
  occupation or business.
• The employer provides the worker with benefits
  such as insurance, leave, or workers'
  compensation.
• The worker is considered an employee of the
  employer for tax purposes (i.e., the employer
  withholds federal, state, and Social Security
  taxes).
• The employer can discharge the worker.
• The worker and the employer believe that they are
  creating an employer-employee relationship .

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IRS Who is an employee?

• Behavioral Does the company control or have the
  right to control what the worker does and how the
  worker does his or her job?
• Financial Are the business aspects of the
  workers job controlled by the payer? (these
  include things like how worker is paid, whether
  expenses are reimbursed, who provides
  tools/supplies, etc.)
• Type of Relationship Are there written contracts
  or employee type benefits (i.e. pension plan,
  insurance, vacation pay, etc.)? Will the
  relationship continue and is the work performed a
  key aspect of the business

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Issue of control often determined by the courts

• Control directed by federal, state, or local
  authority, including airports are
• Hence, the taxi company is permitted and required
  to enforce rules and regulations of airport,
  city, PUC, DOT where applicable

10
Kairy, et al. v. SuperShuttle International,
Inc., et al., 2009 U.S. Dist. LEXIS 121867 (ND
Cal., Dec. 22, 2009) (Case No. 308-cv-02993).

• US District Judge Jeffrey White dismissed all
  state-law based claims from a proposed class
  action brought by drivers of SuperShuttle vans.
• CPUC regulates PSC Supershuttle
• TCP subcarrier SS franchisee, CPUC regulates
  both but requires PSC to exercise strict control
  for the sake of public safety

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The Goal

• Leave this airport ground transportation
  industry better than we found it

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Airport Ground Transportation Association

• QUESTIONS ???