Morgan’s Tip of the Week- Independent Contractors and FL WC


I have received a few questions about what impact the US Dept Of Labor’s new rule on Independent Contractors will have on FL Workers’ Comp.  The DOL’s rule was released on 1/10/24, and goes into effect on 3/11/24, a link to the press release and the actual rule are at the bottom.

The DOL released updated “analysis for determining employee or independent contractor status” with the intent to prevent misclassification that may deny employees minimum wage, overtime pay and other protections. 

The dilemma is the FL WC Act, under 440.02 (15) (d) already has a definition of who is considered an Independent Contractor, and therefore not covered under WC.  So, what impact does the new DOL rule have on FL WC?  Chaos.

An employer may be complying under the Federal DOL rule to treat someone as an Independent Contractor, but if it does not match the FL WC definition, they still may be found responsible for WC benefits.  The Federal rule would not pre-empt the FL WC Act definition.  The FL WC standard remains the person must meet 4 of the 6 Roman numeral criteria spelled out by the statute (below), with the possibility you could prove an independent contractor under the criteria spelled out in small b. as well.  If the person has their own business and is paid in the name of that business that is usually a good head start, but if they are paid as an individual, it is usually hard to prove the remaining items.

So, if it comes up, some employers may be chagrinned to find that they may still be on the hook for WC even if they are following the US DOL rules, unless the FL WC Statute is amended to match.

440.02(15) (d) “Employee” does not include:

1. An independent contractor who is not engaged in the construction industry.

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;

(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.

b. If four of the criteria listed in sub-subparagraph a. do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions:

(I) The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.

(II) The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform.

(III) The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform.

(IV) The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.

(V) The independent contractor may realize a profit or suffer a loss in connection with performing work or services.

(VI) The independent contractor has continuing or recurring business liabilities or obligations.

(VII) The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures.

c. Notwithstanding anything to the contrary in this subparagraph, an individual claiming to be an independent contractor has the burden of proving that he or she is an independent contractor for purposes of this chapter.

Here is the DOL’s press release:

And here is the link to the Federal Register on the Rule:

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Morgan Indek | Managing Partner