Covered Employees Under The Florida Workers' Compensation Law
Thomas P. Vecchio
Ross Vecchio, PA
Lakeland
Introduction
When an employee is injured on the job, the first task is to determine compensability of the accident. Part of this analysis relates to whether or not the injured worker is an employee as defined in the Florida Workers’ Compensation Act. Certain types of employment are covered under the Act while others are not. An essential first step in determining whether or not benefits are due is first determining whether the injured worker is an employee who is entitled to benefits.
Section 440.02(15), Florida Statutes, contains a lengthy definition of employee. The most basic definition is that an employee is a person who receives payment from an employer for the performance of work or services while engaged in any employment under an express or implied contract of hire. The definition of employee includes minors and illegal aliens.
With most claims, it will be easy to confirm that the injured employee was indeed an employee of the covered employer. There will generally be few questions regarding the propriety of the employer/employee relationship. Determining employment status in most circumstances is relatively simple.
Employee or Not an Employee?
Injured workers who fit the definition of “employee” are the only injured workers’ entitled to coverage. Even if a worker is injured on the job, he is not an employee if he does not meet the applicable statutory definition. A person receiving wages from an employer pursuant to a salary or hourly employment contract will most certainly be defined as an employee. There is no need for a written employment contract; the parties’ past performance or obvious intent are sufficient to prove that an employer/employee relationship exists. The statute has carved out numerous exceptions to the definition of employee, however, which must be addressed on a case-by-case basis.
Workers who are specifically excluded from the statutory definition of employee include real estate agents, theatrical performers, horse farm exercise riders, taxi drivers, casual laborers, amateur sports officials, and professional athletes. Corporate officers can reject coverage under the workers’ compensation law by filing the required exemption form with the state. This exemption removes corporate presidents, vice-presidents, and other officers from the definition of employee, thereby precluding payment of workers’ compensation benefits if the officer is injured on the job.
Volunteers and Governmental Entities
Volunteers are generally not considered employees, unless that volunteer is working for a state, county, municipality, or other governmental entity. A person serving as a volunteer for a purely private charitable organization will not be deemed an employee if injured on the job. If a volunteer is performing services for the state or any political subdivision of the state, however, injuries incurred while serving as a volunteer will render that person an employee who is entitled to workers’ compensation benefits.
Difficult factual questions over coverage arise with volunteers of quasi-governmental agencies. A quasi-governmental agency can be defined as a private organization that has contracted to perform functions typically performed by the state or a political subdivision of the state. A volunteer working for a quasi-governmental agency would likely be entitled to workers’ compensation benefits if injured while performing volunteer work. The statute contains a “catch-all” provision that can be construed to mandate coverage in questionable circumstances.
With quasi-governmental agencies, questions may arise with respect to the employer’s funding and whether or not the entity operates for a profit or not for profit. These questions do not alter the basic analysis of determining whether or not an injured worker is an employee pursuant to the workers’ compensation statute. Even if the agency is non-profit or funded through the government, an employee injured on the job is entitled to workers’ compensation benefits.
Construction Industry Problems
The most problematic scenario for determining employee status is in the context of the construction industry. A Florida employer with fewer than 4 employees is generally not required to provide workers’ compensation insurance coverage, unless that employer engages in construction. All Florida employers engaged in construction are required to provide workers’ compensation coverage. The definition of construction can include just about any sort of employment in the building trades.
The most frequent problem with respect to coverage in the construction context arises with contractor/subcontractor relationships. All subcontractors are required to purchase and provide workers’ compensation insurance coverage, no matter how many employees the subcontractor may have. Subcontractors, sub-subcontractors, etc. often fail to provide the requisite workers’ compensation insurance coverage. When the employee of a subcontractor is injured and the subcontractor does not have workers’ compensation insurance coverage, the claimant must look to the contractor who hired the subcontractor for coverage. An injured employee simply proceeds “up the chain” until he finds the first contractor that has workers’ compensation insurance coverage. That contractor and its workers’ compensation carrier will be responsible for paying the claimant’s benefits.
With large construction projects involving many layers of subcontractors, determining the employer next in line that has coverage can be difficult and confusing. Many times, the general contractor of the project is left with the statutory responsibility of covering its uninsured subcontractor’s injured employee. Due to these coverage problems and the nature of injuries that can be sustained on a construction site, workers’ compensation premiums can be a significant “cost driver” in a construction project.
Independent Contractors
There are many workers who are specifically excluded from coverage 
and not defined as employees. The most common example is an independent contractor. An independent contractor (who is not engaged in construction) is not entitled to workers’ compensation coverage unless he purchases it on his own behalf. An independent contractor cannot claim that the party who hired him was his employer. A person hired to mow the lawn of a homeowner, for example, cannot claim that the homeowner must provide workers’ compensation benefits after an injury.
The statute sets forth 13 issues to be considered in determining whether or not a person is an independent contractor. Such considerations include whether or not the independent contractor maintains a separate business with his own tax I.D. number, facility, truck, equipment, etc. Another question pertains to whether or not the independent contractor is paid by the job or paid on the basis of time expended. An inquiry must be made as to whether or not the independent contractor was free to work on other projects at the same time. Other questions include whether or not the independent contractor maintains separate banking accounts in the business name, will incur profit or loss, or bears the principle expenses related to performing the job.
Many employers run into trouble when they attempt to avoid workers’ compensation liability by characterizing employees as independent contractors. If the injured worker is truly an employee, calling him an independent contractor will not make him so. All of the criteria set forth in the statute must be carefully considered in determining whether or not an injured worker is truly an independent contractor or an employee entitled to workers’ compensation benefits under the statute.
Owner/Operators
Another type of employment that is excluded from the definition of 
employee is the owner/operator of a motor vehicle. This typically includes the owner/operator of a semi-tractor that hauls cargo for other businesses. Many trucking companies have employee drivers who are simply employees of the company. Other trucking companies, however, contract with owner/operators to haul for them on an as-needed basis. If the owner/operator provides the semi (the power unit) and hauls trailers and cargo owned by others, the owner/operator is not considered an employee. The owner/operator must incur the principle costs of performance under the contract, including fuel, repairs, and tolls.
Conclusion
There has been significant litigation throughout the years with respect to an injured worker’s status as an employee. Before conclusively determining whether or not an injured worker is an employee and therefore entitled to workers’ compensation benefits, the statute and relevant case law should be reviewed. Bear in mind that these cases are very factually-specific. If a Judge of Compensation Claims is faced with the possibility of finding that an injured worker is not an employee, and if that injured worker has no other avenue to secure medical treatment (and to a lesser extent indemnity benefits), the Judge may focus on relatively minor factors in order to define that person as an employee. Once the Judge finds that an injured worker is an employee or not an employee, the First District Court of Appeal is unlikely to reverse that determination.
Editor’s Note:
Unlike standard workers’ compensation insurance policies, Florida Insurance Trust Board of Directors recognized the important role volunteers play in your organization, thus volunteers are covered in FIT Workers’ Compensation policy.
Florida Insurance Trust current Workers’ Compensation policy defines a covered employee as:
Covered Employees
Covered employees means those employees:
1. who are hired by you,
2. act as a volunteer, or
3. are a member of your organization’s board,
unless specifically excluded.