First DCA Decision May Provide Financial Incentive to Hire Undocumented Workers

All disability payments to an injured worker under the Florida Workers' Compensation Law are based upon the worker's "average weekly wage" at the time of his accident.  But what qualifies as "wages" in making the "average weekly wage" calculation?  Section 440.02(28) defines that term as including "only the wages earned and reported for federal income tax purposes. . . " (emphasis added).

 

"Reported" by whom?  That's the issue that was raised by the facts in Fast Track Framing, Inc. v. Caraballo, decided on 9/15/2008.  Mr. Caraballo was employed by Rolando Mendez.  Mr. Mendez supplied workers to and was a subcontractor for Fast Track Framing, which was itself a subcontractor on a construction project where Maronda Homes, Inc., of Florida, was the general contractor.  There was no dispute that Mr. Mendez (1) did not have workers' compensation insurance, (2) that he paid Mr. Caraballo (and all of this other employees) in cash ($280 per week), (3) that he never required Mr. Caraballo to complete a W-9 form (Request for Taxpayer Identification Number and Certification), and (4) that he never withheld federal withholding, Social Security, or Medicare taxes from Mr. Caraballo's wages. Unfortunately for Mr. Caraballo, however, he apparently never "reported" his wages to the IRS by filing a federal income tax return either.

Continue Reading...

AWW and "Customary Hours" of Employment

Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be.  That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g).  Under subsection (a), if the injured worker has worked “substantially the whole of 13 weeks immediately preceding the accident,” then the AWW is 1/13th of the total wages earned during that period.  The term “during substantially the whole of 13 weeks” means “not less than 75 percent of the total customary hours of employment” within that period. But what does the term “customary hours” mean?  That’s what was at issue in Stubbs.

 

Continue Reading...