The purpose of the proposed rule is to establish criteria for the department to utilize in determining an employer’s payroll for penalty calculation purposes under Section 440.107(7)(d)1., F.S. The effect of the proposed rule will be to facilitate ...

DEPARTMENT OF FINANCIAL SERVICES
Divsion of Worker's Compensation

RULE NO: RULE TITLE
69L-6.035: Definition of Payroll for Calculating Penalty
PURPOSE AND EFFECT: The purpose of the proposed rule is to establish criteria for the department to utilize in determining an employer’s payroll for penalty calculation purposes under Section 440.107(7)(d)1., F.S. The effect of the proposed rule will be to facilitate the calculation of an accurate and complete employer payroll in cases where the employer has provided business records.
SUMMARY: Provides guidance regarding the definition and process of calculating penalties against employers for failure to secure the payment of compensation under Chapter 440, Florida Statutes.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 440.107(9), 440.591 FS.
LAW IMPLEMENTED: 440.107(7)(d)1. FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Tuesday, July 17, 2007, 10:00 a.m.
PLACE: Room 104J, Hartman Bldg., 2012 Capital Circle, S.E., Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Andrew Sabolic, Bureau Chief, Bureau of Workers’ Compensation, Division of Worker’s Compensation, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-4226, phone [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, [phone] (TDD) or [phone] (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Andrew Sabolic

THE FULL TEXT OF THE PROPOSED RULE IS:

69L-6.035 Definition of Payroll for Calculating Penalty.

(1) For purposes of determining payroll for calculating a penalty pursuant to Section 440.107(7)(d)1., F.S., the Department shall when applicable include any one or more of 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 made to employees by or on behalf of the employer, to the extent that the employer’s business records 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 shall be the employer’s payroll; and

(j) Income listed in “Form 1099 Miscellaneous Income” issued to a person, excluding the cost of materials as evidenced by business records from the person to whom the Form 1099 Miscellaneous Income was issued. In the event such records are not provided to the Department to determine the cost of such materials, the entire amount of the income listed on the “Form 1099 Miscellaneous Income” shall be included in the employer’s payroll.

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

(3) For purposes of calculating a penalty pursuant to Section 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 (j) of this rule where applicable, or the state 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, whichever is less.

Specific Authority 440.107(9), 440.591 FS. Law Implemented 440.107(7)(d)1. FS. History–New________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Andrew Sabolic
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Tanner Holloman
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 22, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: April 6, 2007