From the Insurance Journal, William Rabb reports on a recent case which involved a unique Florida law that says “Partners or sole proprietors actively engaged in the construction industry are considered employees unless they elect to be excluded from the definition of employee by filing written notice of the election with the division as provided in s. 440.05. … A sole proprietor or partner who is actively engaged in the construction industry and who elects to be exempt from this chapter by filing a written notice of the election with the division as provided in s. 440.05 is not an employee.” If a worker engaged in the construction industry does not file the notice of election, then s/he is an employee. William writes:
In Victor Cabrera vs. Kablelink Communications, Sedgwick Claims Management and New Hampshire Insurance Co., the appellate court delved into the evolving national issue of which workers should be considered employees and who should be classed as independent contractors.
The court’s conclusion? In this case, Judge Timothy Osterhaus wrote for the majority that under Florida law, a TV cable installer is not a construction worker, and thus, is not considered an employee. Florida statutes, unlike those in many other states, make it clear that the term “employee” includes “an independent contractor working for or performing services in the construction industry.”
Cabrera fell from a ladder in 2016 while running cable and was severely injured.
But the compensation judge, Timothy Stanton in Gainesville, ruled that cable installers are not engaged in construction. Florida law defines construction as “substantial improvement in the … use of any structure.” The state Division of Workers’ Compensation also has developed rules that incorporate the classifications codes published by the National Council on Compensation Insurance.
The claimant’s attorney, Michael Winer of Tampa, argued that “as a matter of pure common sense,” Cabrera’s work for the cable company should be considered construction work. The courthouse, for example, is a structure that is improved by and relies on cable-related communications.
“Indeed, we can appreciate that the availability of modern communications services—telephones, the internet, and other connected services—is vital to our building’s ability to function as a modern courthouse,” the court wrote. “Without these services our building could not serve very well as a courthouse.”
Nonetheless, the judges found that “we cannot determine whether claimant’s cable installation work involved making a ‘substantial improvement’ in the use of the homes served by Kablelink.” The court upheld the compensation judge’s decision.
Read the full story at The Cable Guy Is Not a Construction Worker, Florida Court Says