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 to determine an employers’ 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.
SUBJECT AREA TO BE ADDRESSED: Penalty calculations for assessment of penalties against employers for failure to secure the payment of compensation under Chapter 440, Florida Statutes.
SPECIFIC AUTHORITY: 440.107(9), 440.591 FS.
LAW IMPLEMENTED: 440.107(d)1. FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
TIME AND DATE: Wednesday, April 25, 2007; 2:00 p.m.
PLACE: Room 104J, Hartman, 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, (850)413-1600. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Andrew Sabolic, Division of Workers’ Compensation, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-4226, (850)413-1628
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT 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 where 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) In determining the payroll of an officer of a corporation, as defined in Section 440.02(9), F.S., the Department shall use the wages or salary paid to an officer of a corporation, 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) In determining the payroll of a sole proprietor or partner, the Department shall use the wages or salary paid to the sole proprietor or partner, 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_________.