69L-6.028 Procedures for Imputing Payroll and
Penalty Calculations.
(1) In the event an employer fails to provide
business records sufficient for the department to determine the employer’s
payroll for the time period requested in the business records request for the
calculation of the penalty pursuant to Section 440.107(7)(e), F.S., the
department shall impute the employer’s payroll at any time after ten, but before the expiration of twenty-eight
business days after receipt by the employer of a written request to produce
such business records.
(2) The employer’s period of
non-compliance shall be either the same as the time period requested in the
business records request for the calculation of penalty or an alternative
period of non-compliance as determined by the department, whichever is less.
The department shall determine an alternative period of non-compliance by
obtaining records from other sources, including, but not limited to, the
Department of State, Division of Corporations, the Department of Business and
Professional Regulation, licensing offices, building permitting offices and
contracts, that evidence a period of non-compliance different than the time
period requested in the business records request for the calculation of
penalty. For purposes of this rule, “non-compliance” means the employer’s
failure to secure the payment of workers’ compensation pursuant to Chapter 440,
F.S.
(3) When
an employer fails to provide business records sufficient to enable the
department to determine the employer’s payroll for the time period requested in
the business records request for purposes of calculating the penalty provided
for in Section 440.107(7)(d), F.S., the imputed weekly payroll for each
employee, corporate officer, sole proprietor or partner shall be calculated as
follows:
(a) For
each employee, other than corporate officers, identified by the department as
an employee of such employer at any time during the period of the employer’s
non-compliance, the imputed weekly payroll for each week of the employer’s
non-compliance for each such employee shall be the statewide 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 2. Employees include
sole proprietors and partners in a partnership.
(b) If
the employer is a corporation, for each corporate officer of such employer
identified as such on the records of the Division of Corporations at the time
of issuance of the stop-work order, the imputed weekly payroll for each week of
the employer’s non-compliance for each such corporate officer shall be the
statewide 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 2.
(c) If a
portion of the period of non-compliance includes a partial week of
non-compliance, the imputed weekly payroll for such partial week of
non-compliance shall be prorated from the imputed weekly payroll for a full
week.
(d) The imputed weekly payroll
for each employee, corporate officer, sole proprietor, or partner shall be
assigned to the highest rated workers’ compensation classification code for an
employee based upon records or the investigator’s physical observation of that
employee’s activities.
(4) If
the department imputes the employer’s payroll, the employer shall have twenty
business days after service of the first amended order of penalty assessment to
provide business records sufficient for the department to determine the
employer’s payroll for the period requested in the business records request for
the calculation of the penalty or for the alternative period of non-compliance.
The employer’s penalty will be recalculated pursuant to Section 440.107(7)(d),
F.S., only if the employer provides all such business records within the twenty
days after the service of the first amended order of penalty assessment.
Otherwise, the first amended order of penalty assessment will remain in effect.
Rulemaking Authority 440.107(9), 440.591 FS. Law Implemented
440.107(7)(e) FS. History–New 7-12-05, Amended 8-31-06, 8-30-09, 4-12-15.
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 2, 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 2,
whichever is less.
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.
