Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies.  Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G.  The contract between Crum and P&G provided that Crum would provide workers' compensation coverage to all of P&G's leased employees.  In order to be a "leased employee," however, the contract specifically provided that the employee must first complete an employment application, a W-4 withholding form, and a Form I-9, all of which had to be delivered to Crum "before the employee commences employment."

 

Mr. Del Sol, an employee of P&G, hired Lopez to work for P&G at the rate of $80.00 per day.  Lopez did not, however, complete any paperwork for Crum.  He was injured on the third day of his employment with P&G, causing him to miss work for about four months.  Mr. Del Sol took Lopez to the doctor after the accident and promised to pay him $200.00 per week while he was out of work (about four months), but he never did. 

 

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Section 440.10(1)(a), Fla. Stat., requires "every employer coming within the provisions of this chapter" - including both general contractors and subcontractors -  to obtain workers' compensation insurance covering their respective employees.  But if for some reason a subcontractor fails to obtain the required coverage, then §440.10(1)(b), Fla. Stat., requires the general contractor's WC carrier to step in and provide any benefits owed if the subcontractor's employee is injured on the job.  In such cases, the general contractor becomes the "statutory employer" of the subcontractor's employee.

 

But whether an employer is or is not an "independent corporation" has nothing to do with whether that employer is a "subcontractor."  The First DCA again made that clear in Dunlap v. CSR Rinker Transport, decided on 2/29/2008.  The Court held there that the JCC erred in concluding that Norma Deal Trucking was not a "subcontractor" just because it was an "independent corporation." 

 

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In this 2/11/2008 order, the Florida Supreme Court has declined review of the First District Court of Appeal's decision in Blue Stone Real Estate v. Ward, sub nom., Matrix Employee Leasing, Inc., etc., et al. v. Ward, et al., Case No. SC07-1826.  In Ward, the First District held that a leased employee remains an employee of the leasing company for workers' compensation purposes where the leasing company never notifies the leased employee that it has terminated its leasing contract with the client company.

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Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies. Under these proposed bills:

 

(1) the contract between the leasing company and the client company must provide that the leasing company will give notice to all leased employees as to whether their workers’ compensation coverage is being provided by the leasing company or by the client company;

(2) when the leasing company terminates its contractual relationship with the client company, the leasing company must give written notice of that fact, including the date of contract termination, to each leased employee at the employee's last known address;

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Matrix Leasing Company has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court in Blue Stone Real Estate v. Ward, a 7/20/2007 decision from the First DCA which I wrote about here.  You may recall that in that case the First District held that Ward, an employee of Matrix whose services were leased to E&L Concrete Pumping, Inc., remained an employee of Matrix even though E&L had requested that its account with Matrix be considered "inactive."  Why?  Because Matrix did not notify Ward that its leasing contract with E&L had been terminated as required by §468.525(4)(f).

 

Matrix alleges that the Supreme Court has jurisdiction to review the First DCA's decision on the grounds that it conflicts with one of the First DCA's own previous decisions and because the decision "expressly declares valid a state statute."  See Art. V, §3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(i).   You can read Matrix's brief on jurisdiction here.

 

Both Ward and Blue Stone dispute these asserted bases for jurisdiction.  You can read their jurisdictional briefs here and here.

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In Orange Co. School Bd. v. Powers, a case which I wrote about here, the First District Court of Appeal held that a student intern was not an "employee" of the school board for purposes of the Florida Workers' Compensation Act.  The Florida Supreme Court has now denied review of that decision.  As a basis for supreme court jurisdiction, the claimant had maintained in her jurisdictional brief that the First DCA's decision conflicted with a 1996 decision from the Fifth DCA, which held that a student intern with the Orlando Magic was an "employee" of the Magic and thus was barred by the exclusive remedy provision from filing a personal injury suit against them.

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An employee-leasing company must directly notify each leased employee - not just the client company - when it terminates its leasing contract with the client company.  If it doesn't, the leasing company will still be regarded as the employer for purposes of the Florida Workers' Compensation Act when the non-notified employee is injured on the job.  So says s.468.525(4)(f), Fla. Stat.,  and the First District Court of Appeal in Blue Stone Real Estate v. Ward, decided on 7/20/2007.

 

The leasing company here (Matrix Leasing) agreed to employ the claimant (Ward) and the owner (McMahon) of the two-man client company (E&L Concrete) and to "lease" the two back to the client company in July 2004.  After a few months, both McMahon and Ward left Florida and went to New York to work, at which time McMahon requested Matrix to consider E&L's account "inactive" while he was away.  Matrix Leasing apparently did so, but it never formally notified Ward that its contract with E&L had been terminated.  McMahon and Ward returned to Florida in December 2004, and E&L then contracted with Blue Stone Real Estate to perform some construction work.  It was while he was doing that work that the claimant was injured on 12/13/2004.

 

 The JCC's decision can be found here.  He had concluded that Blue Stone Real Estate - which carried no workers' compensation insurance - was the claimant's employer at the time of his accident.  But the First District said that Matrix Leasing's failure specifically to notify the claimant that it had terminated its contract with E&L meant that Matrix still employed the claimant at the time of his accident.

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Is a student intern an "employee" of the school where she does her student teaching for purposes of the Florida Workers' Compensation Act?  Nope.  So says the First District Court of Appeal in Orange Co. School Bd. v. Powers, reversing the order of the JCC who had concluded otherwise.  Neither was she a covered "volunteer" under s.440.02(15)(d)6, Fla. Stat.  (The school board had filed a claim for contribution against the University of Central Florida - the university at which the intern was enrolled at the time of her accident - but the JCC denied that claim).

 

Although not disccussed in the opinion, I believe it raises another interesting point.  If the intern is not a covered "employee," then I don't believe the school board would enjoy immunity from tort liability for these injuries, either.  

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