Total Cases: 13
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.
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The FWCJUA is a self funding residual market insurer created by the Legislature in order to provide workers' compensation insurance to employers who are statutorily required to maintain such insurance but who are unable to obtain coverage from private insurers involved in the voluntary market. The employer in this case specialized in talent payroll services for the motion picture, television, and radio commercial production industry. Services provided included paying wages to employees of client companies, providing unemployment compensation and workers' compensation coverage and withholding and remitting taxes due as well as filing federal and state tax returns and providing W2s to employees. The company described itself as a temporary employment service.
The FWCJUA determined that the company was an unlicensed employee leasing company and therefore denied coverage. The Office of Insurance Regulation, however, reversed the FWCJUA's denial of coverage finding that while the employer was not an employee leasing company, it was an employer under Florida law because it was a "similar agent" under Section 440.02(16)(a), Florida Statutes.
The court determined that the company was a "similar agent" who provides employees to other persons in accordance with Section 440.02(16)(a) and therefore qualifies as an employer under the Workers' Compensation Act, i.e., employment includes employment agencies, employee leasing companies and "similar agents who provide employees to other persons." Court determined that based on the fact that the company's relationship to its client was based on a contractual relationship, the business was a similar agency under Section 440.02(16)(a), Florida Statutes. The company did more for its clients than just ministerial functions of issuing paychecks to its client employees. The company operated as the employer of record for the talent they recruited. See Bolanos v. Workforce Alliance, 23 So. 3d 171(Fla. 1st DCA 2009).
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Alleged employer Workforce Alliance Career Center (Center) is a nonprofit organization created pursuant to the Workforce Investment Act of 1998 to provide job assistance services for eligible individuals. The Center is federally funded. Claimant in this case obtained employment through the center and was injured. A workers’ compensation claim was filed against the Center.
Section 440.02(16)(8), Florida Statutes, defines an employer to include employment agencies, employee leasing companies and similar agents who provide employees to other persons. Claimant in this case alleged that the center was a "similar agent." No definition of an employment agency or employee leasing company is a part of the statute and court determined that in statutory construction, it is appropriate to resort to dictionaries for the interpretation of terms.
In order to be a "similar agent," there needs to be a financial arrangement between the agency and either the end employer/client or the employee (as seen in employment agencies) or the use of the entity’s own employees by the end employer/client (as seen in employee leasing companies). The Center in this case has neither of these requisite features to be considered a "similar agent." Claimant had asserted that a "similar agent" should include any labor exchange program matching employers and employees. Court refused to expand the definition of a "similar agent" to that degree.
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Personnel leasing company (PEO) issued employer (client company) a certificate of workers’ compensation insurance which indicated that workers’ compensation "coverage applies only to those employees leased (by employer from leasing company), not to subcontractors." Employee of subcontractor of employer injured and it was asserted by employer that personnel leasing company was estopped in denying employee of subcontractor had workers’ compensation coverage under the personnel leasing company’s policy. The wording in the certificate of insurance clearly conveyed that only employees leased from the personnel leasing company were covered. There was no promise that the injured worker was insured and accordingly there was no coverage based on promissory estoppel. Third parties may assert a promissory estoppel argument but in this case, there was no promise which should reasonably expect action on the part of another.
Money paid to claimant not reported to the IRS for tax purposes does not constitute "wages" under the Workers’ Compensation Act in regards to calculating average weekly wage. Concurring opinion.
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JCC determined that promissory estoppel did not preclude appellee from asserting that claimant was not an employee of appellant in accordance with Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So. 2d 799(Fla. 1st DCA 1991). The certificate of insurance issued did not identify subcontractor as an insured but rather clearly stated only that coverage existed for temporary services employees who were performing work for subcontractor at the time of their injury. It was undisputed that the claimant was not an employee of the temporary service at the time of his injury.
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Claimant was employed by a help supply services company that leased temporary workers to construction companies. Claim filed against help supply services company based upon a spoiliation of evidence for failure to preserve a ladder from which the claimant fell. It was undisputed that the help supply services company never obtained possession of the ladder and accordingly, had no duty under Section 440.39(7), Florida Statutes, to acquire and preserve evidence. Accordingly, summary judgment in favor of help supply services company affirmed on appeal. In regards to the client company that was using the leased temporary employee, a special employer using a laborer from a help supply services company has a duty under Section 440.39(7), Florida Statutes, to preserve evidence for a potential claim by the injured laborer against a third party tortfeasor.
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Claimant determined not to be an employee of employee leasing company (PEO). Client company of PEO hired the claimant and never filled out any paperwork for the claimant as required by the PEO. Under the contract between the client company and the PEO, in order for employees of the client company to be employees of the PEO, the employee must complete an employment application, W-4 withholding form, and Form I-9 and these forms must be delivered to the PEO before the employee commences employment. The contract also stated that client company assumed full responsibility for a workers’ compensation claim of parties hired by or working for the client company where the injured worker had not assumed the status of an employee of the PEO. Court rejected claimant’s argument that there was a contractor/subcontractor relationship existing between the client company and the PEO. Specially concurring opinion urging the Legislature to address gaps in coverages for injured workers when an employer utilizes a PEO.
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A special employer using a laborer from a health supply services company has a duty under Section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer’s claim against a third party tortfeasor. Court determined that the company had a statutory duty to preserve evidence, the failure of which could be the basis of a spoliation claim.
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Claimant was employed by a health service supply company to perform manual labor for various companies. He would report to the health services company and would be assigned to different employers to perform actual job responsibilities. He was instructed, supervised and controlled by the hiring company. The health supply services company retained the exclusive right to fire the claimant and was responsible for paying him at the end of the work day. Claimant was injured while working for employer to whom he was assigned by the health supply services company. Cause of action brought against employer where he was working at the time of accident. Workers’ compensation benefits obtained from health supply service company.
Workers’ compensation exclusive remedy precluded cause of action against hiring company. See Section 440.11(2), Florida Statutes. Workers’ compensation immunity to an employer is extended to those who use employees of a health supply services company. Employee leasing companies, temporary health services, and labor pools are health supply companies for purposes of Chapter 440, Florida Statutes.
Court determined also that the intentional tort exception to workers’ compensation immunity did not apply in this case. Court pointed out that Florida adheres to an interpretation of the Workers’ Compensation Act that broadly preserves immunity even in the face of sometimes egregious acts by employers and managers. Citing the case of Turner v. PCR, Inc., 754 So. 2d 683, court determined that lower court had properly instructed the jury in regards to this exception to the exclusive remedy doctrine.
Lower court did not abuse its discretion in admitting evidence of a co-defendant’s settlement in cause of action. Section 90.408, Florida Statutes, excludes evidence of a settlement to prove liability; courts may, however, admit evidence of a settlement if offered for other purposes, such as proving witness bias or prejudice. A witness’s bias or improper motive is always an important factor for credibility determinations.
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When an employee leasing company intends to terminate an employment relationship with an employee, it must notify both the client company and the employee of such termination in accordance with Section 468.525(4)(f), Florida Statutes (2004). Such notice of termination is required of each employee. Even if the employee leasing company terminates its contractual relationship with a client company, there is still the requirement that notice be given to its employees advising the employees that they are no longer employed by the leasing company. The employee leasing company’s letter of termination to the client company, absent evidence of notice to the claimant, was ineffective to terminate the claimant’s employment. There was no competent and substantial evidence to support a finding that the claimant-employee knew of such cancellation by the employee leasing company.
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There is a presumption that an employee is not a borrowed servant but instead continues to work for and be an employee of the general employer. To overcome this presumption, a party must establish the following elements: 1) There was a contract for hire, either express or implied, between the special employer and the employee; 2) the work being done at the time of the injury was essentially that of the special employer; 3) the power to control the details of the work resided with the special employer. The first factor, whether there was an express or implied contract, is the critical issue. Court determined that the evidence of record did not support the granting of a Motion for Summary Judgment in regards to the plaintiff’s employment status as a special employee and reversed the lower court’s granting of a Motion for Summary Judgment in favor of the alleged special employer.
The defendant employer did not meet the definition of a help supply services company which by statute is a special employer entitled to immunity under the terms of Section 440.11(2), Florida Statutes (1999). The defendant employer was not a company hiring workers through temporary employment agencies or employment leasing companies. In dicta, the court in past cases had commented that the definition of a help supply services company should be limited to situations involving day labor pools. In this case, the defendant was not a day labor pool company. In addition, there was no finding that the defendant employer was a temporary employment agency, an employee leasing company, or a help services company. See definition of "help supply services company" as defined by OSHA Standard Industry Code Number 7363.
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Employer (client company) obtained its workers’ compensation coverage through an employee leasing arrangement. Applications for employment and general employment records from the employer were sent to the leasing company on a weekly basis each Tuesday. Payroll documents for employees were sent as accumulated for the preceding week notwithstanding the fact that the agreement between employer and leasing company required the employer to provide the leasing company with all employment paperwork prior to any new hire beginning work. On the first date of employment, the claimant in this case was injured while working for the employer and the question in this case was whether there was an employment relationship between the claimant and the leasing company since the claimant had begun work prior to the payroll records actually having been sent to the leasing company.
Court determined that the doctrine of equitable estoppel may be applied to establish an employment relationship in a workers’ compensation case. The elements necessary to establish equitable estoppel are: 1) a representation as to a material fact that is contrary to a later asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Court determined that this doctrine could be applied in this instance to create an employment relationship between the claimant and the leasing company.
Equitable estoppel cannot be utilized to create insurance coverage. However, it can be utilized in creating an employment relationship between the claimant and the leasing company. Case remanded to determine if the leasing company was estopped to deny that the claimant was its employee.
If the determinative issue is whether the leasing agreement should be reformed by virtue of the course of dealings between the parties, the JCC would lack jurisdiction to resolve this dispute and the case must proceed in circuit court.
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In employee leasing arrangement, if employee leasing company obtains workers’ compensation coverage for the employees subject to the arrangement, the client company would have workers’ compensation immunity for a civil cause of action by such employee under the term of Section 440.11(2), Florida Statutes, since the client company would be utilizing a "help supply services company". In that situation, the employee leasing company would be the employer pursuant to Section 468.529(1), Florida Statutes. If the employee leasing company did not obtain workers’ compensation coverage for the leased employees, then the client company would not be entitled to workers’ compensation immunity. Since there was a dispute as to the whether the employee leasing company in this instance secured workers’ compensation coverage for the employee, court determined that it was error for the court to grant a Motion for Summary Judgment, i.e., there was a dispute of fact as to whether the employee leasing company had secured workers’ compensation coverage for the leased employee.
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