Cases

On Motion for Rehearing. (Original opinion at 43 FLW D956) The question in this case is whether the appellee was an "employer" under the terms of Section 440.02, F.S., and therefore entitled to receive workers' compensation coverage from the JUA.  Appellee provided payroll and other services to client in the advertisement and entertainment business for short term production and was responsible for such things as providing wages to the talent, obtaining and covering the talent for state unemployment compensation and workers' compensation coverage and withholding and paying and remitting taxes from the talent's compensation as well for filing state and federal tax returns for the talent.  Appellee did not hire or fire the employees of client companies and provided limited additional liability in its client contacts.  JUA denied coverage asserting that since appellee was not a registered employee leasing company or qualified as a temporary staffing company, coverage through the JUA should not be allowed since appellee did not qualify as an employer.  OIR adopted a decision administratively that appellee was an employer and therefore coverage should have been granted by the JUA.  This appeal followed.  Court determined that an agency's final order may only be set aside "upon finding that it is not supported by substantial competent evidence in the record or that there are material errors in procedure, incorrect interpretations of law, or an abuse of discretion."

The definition of an employer under Chapter 440 is "every person carrying on any employment that includes employment agencies, employee leasing companies and similar agents who provided employees to other persons.  The question in this case is whether appellee was a "similar agent who provided employees to other persons."

The case of Bolanos v. Workforce Alliance, 23 So. 3d 171 (Fla. 1st DCA 2009) defined a "similar agent" under this relevant definition of an employer.  That court determined that the "key features" of a "similar agent" include a financial arrangement between the agency and either the employer/client or the employee as seen in employment agencies or in the use of the entity's own employees by the end employer/client as seen in employee leasing companies. In this case, appellee paid the talent for its services as well as insured compliance with applicable union guidelines.  Appellee also tracked residual payments of royalties that were due to their clients.  In Bolanos, the company was an employment referral service with no contractual relationship or connection to the employers that used its services.  Unlike a temporary service company, the appellee in this case received compensation in the form of a percentage of the talent's wages and a handling fee.

In reviewing the entirety of the facts, there was competent and substantial evidence to support the agency's finding that the appellee was an employer and the JUA was obligated to provide coverage to the appellee for workers' compensation. The issue of whether the JUA was required under Section 627.311 to provide coverage to entities satisfying the definition of employers under Section 440.02(16)(a), Florida Statutes, was not before the court.