69L-6.035. Definition of Payroll for Calculating Penalty

(1) For purposes of determining payroll for calculating a penalty pursuant to subparagraph 440.107(7)(d)1., F.S., the Department must when applicable, include the following as remuneration to employees based upon evidence received in its investigation:

(a) Wages or salaries paid to employees by or on behalf of the employer;

(b) Payments, including cash payments, made to employees by or on behalf of the employer;

(c) Payments, including cash payments, made to a third person or party by or on behalf of the employer for services provided to the employer by the employees;

(d) Bonuses paid to employees by or on behalf of the employer;

(e) Payments made to employees by or on behalf of the employer on any basis other than time worked, such as piecework, profit sharing, dividends, income distributions, or incentive plans;

(f) Expense reimbursements, including reimbursements for travel, made to employees by or on behalf of the employer, to the extent that the employer’s business records and receipts do not confirm that the expense was incurred as a valid business expense;

(g) Loans made to employees by or on behalf of the employer to the extent that such loans have not been repaid to the employer;

(h) Payments or allowances made by or on behalf of the employer to employees for tools or equipment used by employees in their work or operations for the employer, even in cases where the tools are supplied directly by the employee or to the employee through a third party;

(i) Total contract price of a service provided by the employer, excluding the cost for materials as evidenced in the employer’s business records or contract. In the event the costs for materials is included in the total contract price and cannot be separately identified in the total contract price, eighty percent of the total contract price will be deemed to be the employer’s payroll;

(j) Income listed on “Form 1099 Miscellaneous Income” issued to a person. The entire amount of the income listed on the “Form 1099 Miscellaneous Income” will be included in the employer’s payroll;

(k) Unless the employer’s business records and receipts provided to the Department validate the payroll and expenses that correspond with the cash withdrawal amounts, eighty percent of the cash withdrawal amounts from an employer’s bank account must be included as wages or salaries paid to employees by or on behalf of the employer. These amounts will be identified as “uninsured labor” in Form DFS-F4-1595, Penalty Calculation Worksheet, as adopted in Rule 69L-6.027, F.A.C.;

(l) Unless the employer’s business records and receipts provided to the Department validate that the reimbursements paid directly to a leased employee from an employer are a business expense, 50% of such reimbursements will be included as remuneration to the leased employee; and,

(m) For the day that a stop-work order was issued to an employer, remuneration for an employee may be evidenced by a signed, written statement from the employee containing the employee’s name, address, phone number, and rate of pay based upon the number of hours worked that day.

(2) For the purposes of calculating a penalty pursuant to subparagraph 440.107(7)(d)1., F.S., payroll for an officer of a corporation as defined in subsection 440.02(9), F.S., will be based on remuneration factors listed in paragraphs (1)(a) through (m) of this rule, where applicable, or the state average weekly wage as defined in subsection 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, whichever is less.

(3) For purposes of calculating a penalty pursuant to subparagraph 440.107(7)(d)1., F.S., payroll for a sole proprietor or partner shall be based on remuneration factors listed in paragraphs (1)(a) through (m) of this rule, where applicable, or the state average weekly wage as defined in subsection 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, whichever is less.

(4) For purposes of calculating a penalty pursuant to subparagraph 440.107(7)(d)1., F.S., the payroll for every employee, corporate officer, sole proprietor, and partner will be assigned to the workers’ compensation classification code that corresponds to their respective job duties as evidenced in the employer’s business records, or, if the business records are not sufficient for such assignment, to the highest rated workers’ compensation classification code associated with any employee’s activities based on the investigator’s actual physical observation of work activities.

Rulemaking Authority 440.107(9), 440.591 FS. Law Implemented 440.107(7)(d)1. FS. History–New 10-10-07, Amended 4-12-15, 1-8-17.