There are periodic disputes in workers' compensation regarding the relationship between parties. There are often contracts by which one entity or person obtains the services of some other entity or person. However, such a relationship of procuring services is not the equivalent of "employment." The relationship in which workers' compensation is implicated is that of "employer" and "employee." The definitions of those terms is helpful for context.
The 2021 Florida Legislative Session promises to be busy. Anyone who has spent time around the legislative process might suggest that all sessions are busy. As yet, there are few mentions heard of workers' compensation. One pair of bills (a new law requires a bill in each of the House of Representatives and the Senate, commonly called "companion bills") suggests implications for evidence and proof in workers' compensation disputes. Before delving into these two bills, however, some reminders of the foundation of workers' compensation will be helpful.
The word "employee" means
"any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors." Section 440.02(15)(a).
As straightforward as that definition may seem, the statute proceeds with (15)(b) and (c) clarifying what "employee includes." There is then a lengthy set of exceptions in (15)(d) of what "employee does not include." There are instances in which the person performing the labor will be an "independent contractor" rather than an "employee."
This has been discussed on these pages before. See Did Dirkson Have it Right (September 2014); Misclassification - What it is (January 2015); Newspaper Carriers and the Independent Contractor (July 2015); What is an Employee (March 2018), Progress of Folly (January 2020), and Epic New Prime (January 2019). The issue is important because rights and duties under the Florida Workers' Compensation Law may well depend upon whether there is or is not an "employee and employer relationship." Determining who the employer is may be critical to issues of both liability and immunity.
If this is not complex enough, even when a worker is hired by, directed by, scheduled by, and paid by one entity (an "employer"), that worker may become the "borrowed servant" of another through overt means of contract or possibly through the exercise of sufficient control of another. That analysis can become challenging but is well explained in General Crane Inc. v. McNeal, 744 So. 2d 1-62 (Fla 4th DCA 1999).
There are important implications of the determination of "employee" status. A significant benefit employers enjoy from Chapter 440 is the "exclusiveness of liability" found in section 440.11. That shield against non-workers' compensation liability also "extend(s) as well to each employee of the employer." Thus a worker injured on the job will most often be limited to recovering workers' compensation benefits from her/his employer. The worker will not, in most circumstances, be allowed to file a civil claim for damages against the employer or any of her/his coworkers. The "borrowed employee" foundation is found in section 440.11(2).
When a worker is injured on the job, there is the potential for debate, therefore:
- Was the worker an employee?
- If the worker was an employee, who is the employer?
- If the injury was caused by some other person, is that person a co-employee?
The two related bills with implications for determinations of employee status are House Bill 579 "HB579," and Senate Bill 882 "SB882."
Each would create section 448.111 in Chapter 448 General Labor Regulations. The two bills have very similar descriptions of "actions" that one might take in a workplace, particularly as regards actions toward workers. Each says that someone taking those actions
"may not be the basis for determining whether an engaged individual is an employee or an independent contractor or whether an entity is the joint employer of an engaged individual"
The goal seems to be having everyone on a worksite focused upon health and safety for all, without fear that helping someone might later result in some implied employer/employee relationship. This preclusion is applicable
"if such actions were taken during a public health emergency declared pursuant to s. 381.00315 or a state of emergency declared pursuant to s. 252.36:" (Senate), or
"if taken during a public health emergency or other state of emergency declared by the Governor under s. 252.36." (House).
Thus, some distinction remains as to when exactly this would apply. However, each seems focused on the protection of workers during exceptional times of urgency (as we near the end, hopefully, of this pandemic). There are other differences between the two bills. Foremost perhaps is that SB882 provides that preclusion "in a civil proceeding," while HB579 specifically focuses upon
"a civil cause of action brought under s. 440.10, s. 440.192, s. 440.38, s. 440.381, s. 448.103, s. 448.110, s. 448.25, chapter 532, or s. 717.115, or in a civil cause of action, as provided for under general law"
In those situations, the two bills prohibit the following actions from being "the basis for determining whether an engaged individual is an employee or an independent contractor":
(a) Providing financial assistance to engaged individuals who are unable to work because of health or safety concerns; (Senate)(a) Providing financial assistance to previously engaged individuals who are unable to work because of health and safety concerns. (House; the distinction being "engaged" versus "previously engaged").(b) Directly providing benefits related to the health and safety of engaged individuals, including, but not limited to, medical or cleaning supplies, personal protective equipment, health checkups, or medical testing; 36 (Senate).(b) Directly providing benefits that are related to the health and safety of engaged individuals, including medical or cleaning supplies, personal protective equipment, health checks, or medical testing. (House; the distinctions being broader language in the Senate "but not limited to," and verbiage: Senate - "related to," House - "that are related to").(c) Providing training or information related to the health or safety of engaged individuals or the public; or (Senate and House identical).(d) Taking any action intended to protect public health and safety, including, but not limited to, actions required or suggested by federal, state, or local law. (Senate)(d) Taking any action, including action required or suggested by any federal, state, or local law, ordinance, order, or directive that is intended to protect public health and safety. (House -very similar language, though expressed slightly differently.
The legislative session convened on March 2, 2021. The process for bills is usually assignment to committee(s) for consideration and to afford opportunities for the public to comment and discuss. If the two bills move forward towards the floor or each respective chamber, there will likely be effort(s) to conform the two sets of language and eventually, they would each be identical. This is generally accomplished in the committee process with amendments proposed to one or both until each has the same language. In the (hopefully) waning days of this pandemic, however, it is difficult to enter the capitol. Committee meetings can be attended virtually, and anyone can express their views on proposed legislation in ways other than appearing at a committee meeting.
If passed, the effect appears to be encouragement to all involved in a workplace to assist with the needs, protection, and safety of workers in the event of emergent or urgent circumstances such as the COVID-19 pandemic in the midst of which we find ourselves.
Those who wish to remain updated regarding legislative activity should visit the Legislature's websites:
https://www.myfloridahouse.gov/https://www.flsenate.gov/
Each site has a tool (House "tracking" and Senate "tracker") that afford the opportunity to register for periodic email updates on legislation throughout the session. It is a simple and free tool to remain abreast of the progress of legislation in which one may be interested.
