A proof constraint | News for the workers compensation industry

On May 5, 2022, the Governor signed SB 542 (the companion of which had been HB 411 until it was “put on the table” in March after House committee process). Laws in Florida typically begin with two bills that run in parallel or tandem, then merge at the end into a single bill for final passage.

The implications of this legislation have already been discussed here, when the bills were introduced in 2021. See Who is the employer? (March 2021). The bill is of interest to the workers’ compensation community because we have many opportunities to examine the “employer/employee relationship” in the context of various sections of legislation. Enforcement of workers’ compensation in Florida depends on this employment relationship. See Article 440.09, Coverage.

One area where this presents challenges is misclassification. See Did Dirkson have it Right (September 2014); Misclassification, what is it (January 2015); Misclassification and regulation (November 2015). There are several ways to strive to avoid the implications and costs of participating in the workers’ compensation system. The characterization of workers as independent contractors has always been one. More recently, the challenges of the “gig” economy have sparked debates, questions, and even legislation regarding the relationship.

Classification matters with so-called “gig” workers. They can each find themselves periodically in competition, out of competition or in “it depends”. See The Gig Economy (March 2018); Giggin Again (April 2021). Various states have taken this in various ways, but questions abound. See The Gig of Participatory Democracy (December 2020). The challenges in California and the interplay between its legislative and judicial branches have been interesting to many and troubling to some.

The passage of SB542 is not an amendment to Florida workers’ compensation law and may have largely escaped the notice of the workers’ compensation community. It creates a new section in Chapter 448.111. Chapter 448 is entitled “General Labor Regulations”. And, one might wonder aloud about the impact of this law on workers’ compensation litigation. However, subsection 448.111(2) specifies that this new law applies to evidence in any “cause of action brought under sections 440.10, 440.192, 440.38, 440.381”. These are clearly parts of workers’ compensation law. The specificity of the new law removes doubt as to its applicability and should draw the attention of litigants to this new law.

The law impacts determinations of employee status based on “a company’s actions” during a “public health emergency” (one could reflect here on our recent COVID, but this seems applicable to emergencies having a less systemic effect than a pandemic), or “a state of emergency declared by the Governor.” The law provides that various “actions of a company…cannot be used as evidence” when a worker seeks to “recover lost wages, salaries, benefits or other compensation.” What actions?

Specific “actions” not deserving of consideration or probative weight include

(a) Provide financial assistance to previously hired persons who are unable to work due to health and safety issues.

(b) Directly provide benefits related to the health and safety of those engaged, including medical or cleaning supplies, personal protective equipment, health checks or medical tests.

(c) Provide training or information relating to the health and safety of persons engaged or the public.

(d) Take any action, including action required or suggested by any federal, state, or local law, ordinance, order, or directive to protect public health and safety.

So, essentially, if a company treats these “engaged people” (note that it avoids the use of conclusive labels like “employee”) with dignity and respect when it comes to improving or averting an emergency such as the SARS-CoV-2 pandemic, this treatment cannot be used as evidence that the employer must have considered “individuals” to be “employees”. Thus, the inclusion of these “individuals” in a compensation or training or health care benefit does not prove that the individuals were “employees”.

Apparently, the reverse could have been raised in litigation (if the “individuals” were employees, then why weren’t they offered such a benefit like other “individuals?”). Thus, the failure to include a person in the various enumerated cases of training or care or compensation does not alter or imply that the person is nevertheless an employee.

In short, the law encourages good behavior and equal access to emergency response such as education, training, safety devices or precautions. It should alleviate anxiety and questions in emergencies of various descriptions. The law will encourage and perhaps facilitate actions by employers to respond to health challenges and other emergencies without raising questions about how their emergency response could be used as evidence with respect to subsequent analysis. of the employer/employee relationship and workers’ compensation in Florida. right.

By Judge David Langham

About Yvonne Lozier

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