“Does it walk like a duck, quack like a duck, more than probably a duck”
One of the never-ending discussions for the construction industry in Florida is whether a trade, supplier or independent contractor is an employee or not. This will clear it up to at least murky water.
The state of Florida holds the construction industry up to a different standard than other industries in Florida. Other industries such as doctors, lawyers, manufacturing, and hospitality are required to have a worker’s compensation policy in place when there are four or more full or part-time employees. By the way, if you are a corporate officer you start counting yourself as well. But, if your company is in the construction industry and you employ even one full time or part-time employee, you must carry workers compensation insurance.
Officers of Florida corporations registered with the Florida Department of State, Division of Corporations, can choose not to be covered under the workers compensation policy. If your construction company is an LLC you can show a notarized statement of 10% corporate ownership as proof.
“I know, you are a general contractor and your subcontract all your work out to subcontractors”. Are they subcontractors or independent contractors? The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is if the employer has the legal right to control the details of how the services are performed.
For a simple risk management tool, make sure your subcontractor (independent contractor) has their agent send you a certificate of insurance showing they have their own workers compensation. If they say the are a small contractor with no employees but themselves, make sure they give you a copy of their exemption. Make them sign an affidavit of independent contractor. But beware, carriers are now no longer assuming that your subcontractor can earn more than $100,000 by himself. Workers compensation carriers are starting to examine those 1099’s carefully and may assume there are unreported employees helping that subcontractor.
This is a letter from one of the carriers explaining how if will be decided.
Exempt contractors with compensation over $100K during a policy period, must either furnish a WC certificate of insurance or verification of any labor materials used by the exempt contractor for consideration. Failure to provide this information could result in a portion of the contractor’s distributions being included on final audit for the general contractor.
Should you have any questions regarding any of this article, please feel free to call our office, Sturdevant-Beach & Associates, LLC. 866-306-5803. We would be glad to review your risk management program and make suggestions.