69L-6.028. Procedures for Imputing Payroll and Penalty Calculations

(1) In the event an employer fails to provide business records sufficient for the Department to determine the employer’s payroll for the time period requested in the business records request for the calculation of the penalty pursuant to Section 440.107(7)(e), F.S., the Department may impute the employer’s payroll at any time after twenty-one days after receipt by the employer of a written request to produce such business records.

(2) The employer’s time period or periods of non-compliance means the time period(s) within the 12-month period preceding the date the Stop-Work Order was issued to the employer within which the employer failed to secure the payment of compensation pursuant to Chapter 440, F.S., or within the two years preceding the date the Stop-Work Order was issued to the employer who understated or concealed payroll or has been previously issued a Stop-Work Order. The time period or periods of non-compliance must be either the same time period as set forth in the business records request for the calculation of penalty or an alternative time period or period(s) as determined by the Department, whichever is less. The employer may provide the Department with records from other sources, including, but not limited to, the Department of State, Division of Corporations, the Department of Business and Professional Regulation, licensing offices, and building permitting offices to show an alternative time period or period(s) of non-compliance.

(3) When an employer fails to provide business records sufficient to enable the Department to determine the employer’s payroll for the time period requested in the business records request for purposes of calculating the penalty pursuant to Section 440.107(7)(d), F.S., the imputed weekly payroll for each current and former employee, corporate officer, sole proprietor, or partner identified by the Department during its investigation will be the statewide average weekly wage as defined in Section 440.12(2), F.S., that is in effect at the time the Stop-Work Order was issued to the employer, multiplied by 1.5.

(a) If a portion of the period of non-compliance includes a partial week of non-compliance, the imputed weekly payroll for such partial week of non-compliance will be prorated from the imputed weekly payroll for a full week.

(b) The imputed weekly payroll for each employee, corporate officer, sole proprietor, and partner will be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of any employee’s activities.

(4) If the Department imputes the employer’s payroll, the employer will have twenty business days after service of the first penalty assessment calculation to provide business records sufficient for the Department to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty or for the alternative time period(s) of non-compliance. The employer’s penalty will be recalculated pursuant to Section 440.107(7)(d), F.S., only if the employer provides all such business records within the twenty business days after the service of the first penalty assessment calculation. Otherwise, the first penalty assessment calculation will remain in effect.

(a) If the employer was issued a Stop-Work Order, then the employer will have twenty business days after service of the first Amended Order of Penalty Assessment to provide business records sufficient for the Department to determine the employer’s payroll, and the employer’s penalty will be recalculated pursuant to Section 440.107(7)(d), F.S.

(b) If the employer was issued an Order of Penalty Assessment, then the employer will have twenty business days after service of the Order of Penalty Assessment to provide business records sufficient for the Department to determine the employer’s payroll, and the employer’s penalty will be recalculated pursuant to Section 440.107(7)(d), F.S.

Rulemaking Authority 440.107, 440.591 FS. Law Implemented 440.107 FS. History–New 7-12-05, Amended 8-31-06, 8-30-09, 4-12-15, 1-8-17, 7-18-23.