Langham: An Evidence Constraint

Wednesday, July 6, 2022 | 0

On May 5, the governor signed SB 542 (whose companion had been HB 411 until it was "laid on the table" in March after the House committee process). Laws in Florida typically begin with two bills that proceed in parallel or tandem and then coalesce at the end into one bill for final passage. 

Judge David Langham

The implications of this legislation have been discussed here before 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 a fair number of opportunities to examine the "employer/employee relationship" in the context of various statutory sections. The application of workers' compensation in Florida is dependent upon that employment relationship.

One area in which this presents challenges is misclassification. There are multiple ways to strive to avoid the implications and costs of participating in the workers' compensation system. Characterizing workers as independent contractors has persistently been one of these. More recently, the challenges of the "gig" economy have brought debate, questions and even legislation regarding the relationship. 

Classification is of import with the so-called "gig" workers. They may each periodically find her/himself in comp, out of comp or in "it depends." Various states have taken this on 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 has been interesting to many and troubling to some.

The passage of SB 542 is not an amendment of the Florida workers' compensation law and may have largely escaped the attention of the workers' compensation community. It creates a new section in Chapter 448.111. Chapter 448 is "General Labor Regulations."

And, one may wonder aloud regarding the impact of this statute in workers' compensation litigation. However, there is clarity in 448.111(2), stating that this new law applies to the evidence in any "cause of action brought under s. 440.10, s. 440.192, s. 440.38, s. 440.381." Those are clearly portions of the workers' compensation law. The specificity of the new law removes doubt of applicability and should focus litigators on this new law. 

The law impacts determinations of employee status based upon "actions of a business" during either a "public health emergency" (one might here reflect upon our recent COVID, but it seems applicable to emergencies of less systemic effect than a pandemic) or "a state of emergency declared by the governor." The statute provides that various "actions of a business ... may not be used as evidence" when a worker is seeking "to recover lost wages, salary, employment benefits or other compensation."

The specific "actions" that are not worthy of evidentiary consideration or weight include:

• Providing financial assistance to previously engaged individuals who are unable to work because of health and safety concerns.
• Directly providing benefits that are related to the health and safety of engaged individuals, including medical or cleaning supplies, personal protective equipment, health checks or medical testing.
• Providing training or information related to the health and safety of engaged individuals or the public.
• Taking any action, including action required or suggested by any federal, state or local law, ordinance, order or directive that is intended to protect public health and safety.

Thus, essentially, if a business treats those "engaged individuals" (note that it avoids the use of conclusory labels like "employee") with dignity and respect as regards amelioration or avoidance of some urgency such as the SARS-CoV-2 pandemic, that treatment cannot be used as evidence that the employer must have considered the "individuals" to be "employees." Thus, including such "individuals" in some provision of compensation or training or health care does not support that the persons were "employees."

Seemingly, the converse might have been raised in litigation (if the "individuals" were employees, then why were they not offered such benefit like other "individuals?"). Thus, not including someone in the various listed instances of training or care or compensation does not alter or implicate that the person is nonetheless 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 angst and questions in the setting of emergencies of various descriptions. The law will perhaps encourage and facilitate the actions of employers in responding to the challenges of health and other emergencies without raising questions of how their emergency response might be used as evidence in regard to later analysis of employer/employee relationship and the Florida workers' compensation law. 

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.