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Ch. 440 WORKMEN'S COMPENSATION LAW Ch. 440

any other county of the state which will at the time of forwarding the file for hearing, in the discretion of the division, be the most convenient for a hearing. Subsequent to the forwarding of the file to such county, the parties and the judge may agree to transfer such file to a county that is deemed most convenient for a hearing. The hearing shall be conducted by a judge of industrial claims, who shall within 30 days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner. At such hearing the claimant and employer may each present evidence in respect of such claim and may be represented by any attorney authorized in writing for such purpose. When there is a conflict in the medical evidence submitted at the hearing the judge of industrial claims may designate a disinterested doctor to submit a report or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, examined the claimant, or otherwise made such investigation as appropriate. The report or testimony of any doctor so designated by the judge of industrial claims shall be made a part of the record of the proceeding and shall be given the same consideration by the judge of industrial claims as is accorded other medical evidence submittted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13(3)(a).

(c) The order making an award or rejecting the claim, referred to in this chapter as a compensation order, shall set forth the findings of ultimate facts and the mandate, and the order need not include any other reason or justification for such mandate, and shall be filed in the office of the division at Tallahassee. A copy of such compensation order shall be sent by mail to the parties and attorneys of record at the last known address of each, with the date of mailing noted thereon.

(4)(a) The compensation order rendered by the judge of industrial claims shall become final20 days after the date copies of same are mailed to the parties at the last known address of each, unless within said time any interested party shall make and file with the commission or a judge of industrial claims an application for a review thereof by the commission in accordance with the provisions of this subsection. However, an employer who has not secured the payment of compensation under this chapter in compliance with s. 440.38 shall, as a condition of filing such application for a review by the commission, file with his application for review a good and sufficient bond, as provided ins. 59.13, conditioned to pay the amount of the award, interest and costs payable under the terms of the order of the commission, if the application shall be dismissed or the order thereon shall affirm or make an award of benefits in any amount, and upon failure of such employer to file such bond with his application for review the commission shall dismiss the application for review. The application must state concisely and particularly the grounds upon which the appellant relies, and the consideration of the commission thereofwill be confined solely to the grounds so presented. A copy of all applications for review shall be served on all interested parties, and proof of service thereof shall ac-

company all applications when filed. (b) The appellant shall have prepared, in accord

ance with the workmen's compensation rules of procedure, a record '[on] appeal, certified by the judge of industrial claims, which record must be filed with the commission within 45 days from the date of the filing of the application for review, unless the commission for good cause shown by verified petition presented prior to the expiration of said period shall extend the time therefor. The appellant shall have a copy of the record served on the opposing party or parties or their counsel, and evidence of such service shall be filed with the record when filed with the commission. Upon failure of the appellant to file a record with the commission, together with evidence of service of a copy thereof on the opposing party or parties, within the time specified or within such time as allowed by the commission pursuant to petition for an extension of time as aforesaid, the commission shall dismiss the application for review.

(c)l. Within 15 days after the content of the record on appeal has been determined, the judge of industrial claims shall serve notice upon the appellant or his attorney of the estimated cost of preparing the record on appeal and necessary copies thereof, and the appellant shall, within 15 days of the date of service, deposit the amount of the estimated cost of preparing the record at the office of the judge of industrial claims. If the appellant fails to deposit the amount of costs within the time allotted, the judge of industrial claims shall promptly notify the commission of such failure, and the commission shall dismiss the application for review. However, neither the division, nor· the special disability trust fund, nor any self-insured state agency shall be required to make the deposit.

2. An appellant may be relieved in part or in whole from the costs for the preparation of the record on appeal if, within 15 days after the date notice of the estimated costs for the preparation is served, he files with the judge of industrial claims a verified petition to be relieved of costs. The verified petition shall contain a detailed and sworn statement of all his assets, liabilities, and income. Appellant's attorney, or the appellant if not represented by an attorney, shall include as a part of the verified petition an affidavit or affirmation that in his opinion the application for review was filed in good faith and that the assignment of error contained therein constitutes a probable basis for the commission to find reversible error. A copy of the verified petition shall be served upon the division in Tallahassee and all other interested parties. The judge of industrial claims shall promptly conduct a hearing on the verified petition, giving at least 15 days' notice to the appellant, the division, and all other interested parties, which shall all be parties to the proceeding. The judge may enter an order without such hearing if no objection is filed by the division or an interested party within 12 days from the date the verified petition is filed. Said proceedings shall be conducted in accordance with this section and the workmen's compensation rules of procedure to the extent applicable.

(d) Within 10 days after the appellant has filed his application for review, any other interested par-

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ty who desires review of any adverse ruling by the judge of industrial claims must file his cross-application for review with the commission or a judge of industrial claims. The cross-application for review must state concisely and particularly the grounds upon which the cross-appellant relies, and the consideration of the commission thereof will be confined solely to the grounds so presented. A copy of all cross-applications for review shall be served on all interested parties, and proof of service thereof shall accompany all cross-applications when filed.

(e) Unless the application for review is withdrawn with its permission or is dismissed as aforesaid, the commission shall consider the matter upon the record as certified by the judge of industrial claims and shall thereafter affirm, reverse or modify said compensation order, or remand the claim for further proceedings before a judge of industrial claims who shall proceed as the commission may direct. The order of the commission shall be filed in the office of the commission at Tallahassee, and a copy of such order shall be sent by certified mail to each party at his last known address. The order of the commission shall become final upon expiration of the period within which any interested party may file a petition for writ of certiorari requesting review of such order by the Supreme Court, unless within said time any interested party shall file a petition for writ of certiorari in accordance with s. 440.27.

(5) An award of compensation for disability may be made after the death of an injured employee.

(6) An injured employee claiming or entitled to compensation shall submit to such physical examination by a duly qualified physician designated or approved by the judge of industrial claims as the judge of industrial claims may require. The place or places shall be reasonably convenient for the employee. Such physician or physicians as the employee, employer or carrier may select and pay for may participate in an examination if the employee, employer or carrier so requests. Proceedings shall be suspended and no compensation shall be payable for any period during which the employee may refuse to submit to examination. Any interested party shall have the right in any case of death to require an autopsy, the cost thereof to be borne by the party requesting it; and the judge ofindustrial claims shall have authority to order and require an autopsy and may in the judge's discretion withhold the judge's findings and award until an autopsy is held.

History.-s. 25, ch. 17481, 1935; CGL 1936 Supp. 5966(25); s. 11, ch. 18413, 1937; s. 7, ch. 20672, 1941; s. 3, ch. 22814, 1945; s. 1, ch. 26967, 1951; s. 8, ch. 28241, 1953; s. 6, ch. 29778, 1955; s. 1, 57-270; s. 2, ch. 59-100; s. 2, ch. 59-142; s. 2, ch. 65-120; s. 1, ch. 65-119; s. 1, ch. 67-374; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 120, ch. 71-355; s. 1, ch. 74-48; s. 15, ch. 74-197; s. 12, ch. 75-209; ss. 6, 8, ch. 77-290.

'Note.-Bracketed word substituted by the editors for the word "or." cf.-s. 1.01 Defines registered mail to include certified mail with return

receipt requested.

willful intention of the injured employee to injure or kill himself or another.

History.-s. 26, ch. 17481, 1935; CGL 1936 Supp. 5966(26); s. 7, ch. 77-290. cf.-s. 28.24 Compensation of clerk of circuit court.

s. 29.03 Compensation for court reporters. s. 696.05 Photographic recording by clerk of ci rcuit court.

440.27 Review of compensation orders.-(1) Orders of the commission entered pursuant to

s. 440.25 shall be subject to review only by petition for writ of certiorari to the supreme court. The petition shall be filed in accordance with rules of procedure prescribed by the Supreme Court of Florida for review of such orders. The division shall be made a party respondent to every such proceeding.

(2) The commission may grant a supersedeas or stay upon petitioner giving a good and sufficient bond, as provided in s. 59.13, conditioned to pay the amount of the award, interest and costs, if the petition shall be denied by the court; provided, however that if the employer has secured the payment of benefits of this chapter to his employees no bond is required.

History.-s. 27, ch. 17481, 1935; CGL 1936 Supp. 5966(27); s. 12, ch. 18413, 1937; s. 8, ch. 20672, 1941; s. 2, ch. 23908, 1947; s. 10, ch. 26484, 1951; s. 9, ch. 28241, 1953; s. 7, ch. 29778, 1955; s. 2, ch. 57-270; s. 1, ch. 59-142; ss. 17, 35, ch. 69-106; s. 120, ch. 71-355.

440.28 Modification of orders.-Upon a judge's o~n. initiative or upon the application of any party m mterest, on the ground of a change in condition or because of a mistake in a determination of fact the judge of industrial claims may at any time prior to 2 years after the date of the last payment of compensation pursuant to any compensation order, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedure prescribed in respect of claims ins. 440.25 and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the judge of industrial claims.

History.-s. 28, ch. 17481, 1935; CGL 1936 Supp. 5966(28); s. 9, ch. 20672, 1941; s. 10, ch. 28241, 1953; s. 119, ch. 71-355; s. 13, ch. 75-209.

440.29 Procedure before the commission or judges of industrial claims.-

(1) In making an investigation or inquiry or con-440.26 Presumptions.-In any proceeding for ducting a hearing the judge of industrial claims shall

the enforcement of a claim for compensation under not be bound by technical or formal rules of procethis chapter, it shall be presumed, in the absence of dure, except as provided by this chapter; but may substantial evidence to the contrary: make such investigation or inquiry, or conduct such

(1) That the claim comes within the provisions of hearing in such manner as to best ascertain the this chapter. rights of the parties. Declaration of a deceased em-

(2) That sufficient notice of such claim has been ployee concerning the injury in respect of which the given. investigation or inquiry is being made or the hearing

(3) That the injury was not occasioned by the conducted shall be received in evidence and shall, if

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corroborated by other evidence, be sufficient to establish the injury.

(2) Hearings before the judge ofindustrial claims shall be open to the public and shall be reported, and the division is authorized to contract for the reporting of such hearings. The division shall by regulation provide for the preparation of a record of the hearings and other proceedings before judges of industrial claims and shall be permitted to charge for transcripts of testimony and copies of any instrument the same fees as are allowed by law to reporters and clerks of courts of this state for like services.

(3) The practice and procedure before the commission and the judges of industrial claims shall be governed by rules adopted by the Supreme Court.

Hlstory.-s. 29, ch. 17481, 1935; CGL 1936 Supp. 5966(29); 8. 10, ch. 20672, 1941; 8. 8, ch. 29778, 1955; 88. 17, 35, ch. 69-106; 8.16, ch. 74-197; s. 14, ch. 75-209. cf.-8. 28.24 Fees of clerk of circuit court.

s. 29.03 Compensation for services of official court reporters. s. 696.05 Photographic recording authorized; clerk circuit court.

440.30 Depositions.-Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under the Florida Workmen's Compensation Law, either upon order of the judge of industrial claims or at the instance of any party or prospective party to such proceedings, and either prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of the claim in the same manner, for the same purposes, including the purposes of discovery, and subject to the same rules; all as now or hereafter prescribed by law or by rules of court governing the taking and use of such depositions in civil actions at law in the Circuit Courts of this state. Such depositions may be taken before any notary public, court reporter or deputy, and the fees of the officer taking the same and the fees of the witnesses attending the same, including expert witness fees as provided by law or court rule, shall be the same as in depositions taken for such Circuit Courts. Such fees may be taxed as costs and recovered by the claimant, if successful in such workmen's compensation proceedings. If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant's attorney a reasonable attorney's fee for attending said deposition.

History.-s. 30, ch. 17481, 1935; CGL 1936 Supp. 5966(30); s. 13, ch. 18413, 1937; s. 1, ch. 28228, 1953; ss. 17, 35, ch. 69-106; s. 17, ch. 74-197; s. 15, ch. 75-209.

440.31 Witness fees.-Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; provided, however, that any expert witness, as defined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this chapter shall be allowed a witness fee including the cost of any exhibits used by such witness in such reasonable amount as the judge of industrial claims may determine, not in excess of the rate prevailing in the locality for witness fees for such expert witnesses in workmen's compensation proceedings, notwithstanding the limitation provided in s. 90.231.

History.-s. 31, ch. 17481, 1935; CGL 1936 Supp. 5966(31); s. 9, ch. 29778, 1955; s. 2, ch. 67-554. cf.-s. 92.142 Compensation of witnesses in various courts.

440.32 Cost in proceedings brought without reasonable grounds.-If the judge of industrial claims, commission, or any court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.

Hlstory.-s. 32, ch. 17481, 1935; CGL 1936 Supp. 5966(32); s. 1, ch. 63-283; 88. 17, 35, ch. 69-106; 8. 16, ch. 75-209.

440.33 Powers of judges of industrial claims and commission.-

(1) The judge of industrial claims or commission may preserve and enforce order during any such proceeding; issue subpoenas for, administer oaths or affirmations to, and compel the attendance and testimony of witnesses, or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths; examine witnesses, and do all things conformable to law which may be necessary to enable it effectively to discharge the duties of its office.

(2) If any person in proceedings before the judge of industrial claims or commission disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath or affirmation as a witness, or after having taken the oath refuses to be examined according to law, the judge of industrial claims or commission, as the case may· be, shall certify the facts to the court having jurisdiction in the place in which it is sitting which shall thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.

History.-s. 33, ch. 17481, 1935; CGL 1936 Supp. 5966(33); 88. 17, 35, ch. 69-106; s. 17, ch. 75-209.

440.34 Attorney's fees; costs; penalty for violations.-

(1) If the employer or carrier shall file notice of controversy as provided in s. 440.20, shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney's fee of 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured, and 15 percent of the remaining amount of the benefits secured, to be approved by the judge of industrial claims, which fee may be paid direct to the attorney for the claimant in a lump sum. However, the judge of industrial claims shall consider the fol~

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lowing factors in each case and may increase or decrease the attorney's fee if in his judgment the circumstances of the particular case warrant such action:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the benefits resulting to the claimant.

(e) The time limitation imposed by the claimant or the circumstances.

(f) The nature and length of the professional relationship with the claimant.

(g) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(h) The contingency or certainty of a fee . (2) In awarding a reasonable attorney's fee, the

judge of industrial claims shall consider only that portion of the award to the claimant that the attorney is responsible for securing.

(3) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which fees shall be in addition to the compensation paid the claimant and shall be paid as the court may direct.

(4) There shall be further assessed against such employer or carrier, as costs in said claim, such fees and mileages for witnesses attending the hearing at the instance of claimant as would be allowed such witnesses in cases at law.

(5) Any person: (a) Who receives any fees or other consideration

or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the judge of industrial claims, the commission, or such court; or

(b) Who makes it a business to solicit employment for a lawyer or for himself or herself in respect of any claim or award for compensation,

shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. ·

History.- s. 34, ch . 17481, 1935; CGL 1936 Supp. 5966(34), 8135(11); s. 11, ch. 20672, 1941; ss. 17, 35, ch: 69-106; s. 365, ch. 71-136; s. 119, ch. 71-355; s. 18, ch. 75-209; s. 9, ch. 77-290.

440.35 Record of injury or death.-Every employer shall keep a record in respect of any injury to an employee. Such record shall contain such information of disability or death in respect of such injury as the division may by regulation require, and sha ll be available to inspection by the division or by any state authority at such time and under such conditions as the division may by regulation prescribe.

History.-s. 35, ch. 17481, 1935; CGL 1936 Supp. 5966(35); ss. 17, 35, ch .

69-106.

440.37 Misrepresentation; penalty.-Any person who willfully makes any false or misleading statement or representation for the purpose of obtaining or denying any benefit or payment under this chapter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.- s. 37, ch. 17481, 1935; CGL 1936 Supp. 8135(12); s. 366, ch. 71-136; s. 10, ch . 77-290.

440.38 Security for compensation.-(!) Every employer shall secure the payment of

compensation under this chapter: (a) By insuring and keeping insured the payment

of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state, or

(b) By furnishing satisfactory proof to the division of his financial ability to pay such compensation and receiving an authorization from the division to pay such compensation directly. The division may, as a condition to such authorization, require such employer to deposit in a depository designated by the division either an indemnity bond or securities, at the option of the employer, of a kind and in an amount determined by the division, and subject to such conditions as the division may prescribe, which shall include authorization to the division in case of default to sell any such securities sufficient to pay compensation awards or to bring suit upon such bonds, to procure prompt payment of compensation under this chapter. Any employer securing compensation in accordance with the provisions ofthis paragraph shall be known as a self-insurer, and shall be classed as a carrier of his own insurance.

(2) The license of any stock company or mutual company or association or exchange authorized to do insurance business in the state may, upon recommendation of the division be suspended, or revoked by the Department of Insurance for good cause shown after a hearing at which the carrier shall be entitled to be heard in person or by counsel and to present evidence. No suspension or revocation shall affect the liability of any carrier already incurred.

(3) The division may suspend or revoke any authorization to a self-insurer for a good cause shown after a hearing at which the self-insurer shall be entitled to be heard in person or by counsel and to present evidence. No suspension or revocation shall affect the liability of any self-insurer already incurred.

(4)(a) No carrier of insurance, including the parties to any mutual, reciprocal, or other association, shall write any compensation insurance under this chapter without a permit from the Department of Insurance. Such permit shall be given upon application therefor to any insurance or mutual or reciprocal insurance association upon the said department being satisfied of the solvency of such corporation or association and its ability to perform all its undertakings. The said department may revoke any permit so issued for violation of any provision of this chapter.

(b) Any insurer, rating bureau, agent or other representative or employee of any insurer or rating

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bureau failing to comply with or which is guilty of a violation of any of the provisions of this chapter, or of any order or ruling of the Department of Insurance made hereunder, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. In addition thereto, the license of any insurer, agent, or broker guilty of such violation may be revoked or suspended by the department.

(5) The state, its boards, bureaus, departments, and agencies and all its political subdivisions who employ labor shall be deemed self-insurers under the terms of this chapter unless they elect to procure and maintain insurance to secure the benefits of this chapter to their employees and they are hereby authorized to pay the premiums for the said insurance.

History.-s. 38, ch. 17481, 1935; CGL 1936 Supp. 5966(37), 7476(7), 8135(13); s. 13, ch. 22637, 1945; ss. 13, 17, 35, ch. 69-106; s. 367, ch. 71-136. cf.-s. 837.012 Perjury not in an official proceeding.

s. 837.02 Perjury in official proceedings.

440.39 Compensation for injuries where third persons are liable.-

(1) If an employee, subject to the provisions of the Florida Workmen's Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third party tortfeasor, such injured employee, or in the case of his death his dependents, may accept compensation benefits under the provisions of this law, and at the same time such injured employee, his dependents or personal representatives may pursue his remedy by action at law or otherwise against such third party tortfeasor.

(2) If the employee or his dependents shall accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder then the insurer, shall be subrogated to the rights of the employee or his dependents against such third party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3).

(3)(a) In all claims or actions at law against a third party tortfeasor, the employee, or his dependents or those entitled by law to sue il). the event he is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer's insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff, may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney's fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demon-

strate to the court that he did not recover the full value of damages sustained because of comparative negligence or because oflimits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge ofthe trial court upon application therefor and notice to the adverse party. Notice of suit being filed and notice of payment of compensation benefits shall be served upon the compensation carrier and upon all parties to the suit or their attorneys of record.

(b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third party tortfeasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third party tortfeasor in accordance with the provisions of paragraph (a) above.

(4Xa) If the injured employee or his dependents, as the case may be, fail to bring suit against such third party tortfeasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurance carrier, may, after giving 30 days' notice to the injured employee or his dependents and the injured employee's attorney, if represented by counsel, institute suit against such third party tortfeasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the following: All amounts paid as compensation and medical benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made, together with all court costs, including attorney's fees expended in the prosecution of such suit, to be prorated as provided by subsection (3). The remainder of the moneys derived from such judgment or settlement shall be paid to the employee or his dependents, as the case may be.

(b) If the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against a third party tortfeasor, the right of action shall revert to the employee or, in the case of his death, those entitled by law to sue, and in such event the provisions of subsection (3) shall apply.

(5) In all cases under subsection (4) involving third party tortfeasors, where compensation benefits under this law are paid, or are to be paid, settlement either before or after suit is instituted shall not be made except upon agreement of the injured employee or his dependents and the employer or his insurance carrier, as the case may be.

(6) Any amounts recovered under this section by the employer or his insurance carrier shall be credited against the loss-experience of said employer.

Histo•y.-s. 39, ch. 17481, 1935; CGL 1936 Supp. 5966(38); s. 14, ch. 18413, 1937; s. 1, ch. 23822, 1947; s. 1, ch. 26546, 1951; s. 1, ch . 59-431; s. 6, ch. 70-148; s. 18, ch. 74-197; s. 11 , ch. 77-290.

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440.40 Compensation notice.-Every employer who has secured compensation under the provisions of this chapter shall keep posted in a conspicuous place or places in and about his place or places ofbusiness typewritten or printed notices, in accordance with a form prescribed by the division, stating that such employer has secured the payment of compensation in accordance with the provisions of this chapter. Such notices shall contain the name and address of the carrier, if any, with whom the employer has secured payment of compensation and the date of the expiration of the policy.

History.---6. 40, ch. 17481, 1935; CGL 1936 Supp. 5966(39); ss. 17, 35, ch. 69-106.

440.41 Substitution of carrier for employer. -In any case where the employer is not a self-insurer, in order that the liability for compensation imposed by this chapter may be most effectively discharged by the employer, and in order that the administration of this chapter in respect of such liability may be facilitated, the division shall by regulation provide for the discharge, by the carrier for such employer, of such obligations and duties of the employer in respect of such liability, imposed by this chapter upon the employer, as it considers proper in order to effectuate the provisions of this chapter. For such purposes:

(1) Notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowl-edge of the carrier. .

(2) Jurisdiction of the employer by the judges of industrial claims, the division, the commission, or any court under this chapter shall be jurisdiction of the carrier.

(3) Any requirement by the judges of industrial claims, the division, the commission, or any court under any compensation order, finding, or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer.

History.---6. 41, ch. 17481, 1935; CGL 1936 Supp. 5966(40); ss. 17, 35, ch. 69-106; 8. 19, ch. 75-209.

440.42 Insurance policies; liability.-(1) Every policy or contract of insurance issued

under authority of this chapter shall contain: (a) A provision to carry out the provisions of s.

440.41; and (b) A provision that insolvency or bankruptcy of

the employer and discharge therein shall not relieve the carrier from payment of compensation for disability or death sustained by an employee during the life of such policy or contract.

(2) No contract or policy of insurance issued by a carrier under this chapter shall expire or be canceled until at least 30 days have elapsed after a notice of cancellation has been sent to the division and to the employer in accordance with the provisions of subsection 440.185(7). However, when duplicate or dual coverage exists by reason of two different carriers having issued policies of insurance to the same employer securing the same liability, it shall be presumed that only that policy with the later effective date shall be in force and that the earlier policy terminated upon the effective date of the latter. In the event that both policies carry the same effective date, one of the policies may be canceled instanter

upon filing a notice of cancellation with the division and serving a copy thereof upon the employer in such manner as the division by regulation may prescribe.

(3) When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment or other benefits under this chapter, the judge of industrial claims shall have jurisdiction to adjudicate such controversy; and if one of the carriers voluntarily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments either voluntarily or in compliance with a compensation order shall be entitled to reimbursement from the carrier finally determined liable, and the judge of industrial claims shall have jurisdiction to order such reimbursement; however, if the carrier finally determined liable can demonstrate that it has been prejudiced by lack of knowledge or notice of its potential liability, such reimbursement shall be only with respect to payments made after it had knowledge or notice of its potential liability.

History.---6. 42, ch. 17481, 1935; CGL 1936 Supp. 5966(41); 8. 11, ch. 29778, 1955; 8. 3, ch. 57-225; 8. 3, ch. 59-100; 8. 1, ch. 65-204; ss. 17, 35, ch. 69-106; 8. 1, ch. 73-185; s. 20, ch. 75-209. ·

440.43 Penalty for failure to secure payment of compensation.-Any employer required to secure the payment of compensation under this chapter who fails to secure such compensation shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 and upon a complaint of the division being filed in the circuit court of the county in which said employer may be doing business, such employer may be enjoined from employing individuals and from conducting business until such payment for compensation has been secured. However, the employer, upon written notice from the division, shall have 72 hours to secure such compensation prior to the filing ofthe complaint by the division. This section shall not affect any other liability of the employer under this chapter.

History.-8. 43, ch. 17481, 1935; CGL 1936 Supp. 8135(14); 8. 368, ch. 71-136; 8. 8, ch. 73-127.

440.44 Workmen's compensation; staff organization.-

(1) INTERPRETATION OF LA W.-As a guide to the interpretation of this chapter, the Legislature takes due notice of federal social and labor acts and hereby creates an agency to administer such acts passed for the benefit of employees and employers in Florida industry, and desires to meet the requirements of such federal acts wherever not inconsistent with the Constitution and laws of Florida.

(2) BUREAU CREATED.-There is created, within the Division of Labor of the Department of Commerce, a Bureau of Workmen's Compensation, and, except as otherwise provided, the division shall administer the provisions of this act through this bureau.

(3) BUREAU CHIEF; EXPENSES; ETC.-(a) Under the direction and supervision of the

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division, the Bureau of Workmen's Compensation shall be administered by a full-time chief, who may exercise all powers, duties, and functions vested in the division by this chapter, except that this provision shall not be construed as a limitation on the authority of the division.

(b) The division shall make such expenditures including expenditures for personal services and rent at the seat of government and elsewhere, for law books, books of reference, periodicals, equipment and supplies, and for printing and binding as may be necessary in the administration of this chapter. All expenditures of the division in the administration of this chapter shall be allowed and paid as provided in s. 440.50 upon the presentation of itemized vouchers therefor approved by the division.

(4) MERIT SYSTEM PRINCIPLE OF PERSONNEL ADMINISTRATION.-Subject to the other provisions of this chapter, the division is authorized to appoint, and prescribe the duties and powers of, a bureau chief, attorneys, accountants, medical advisers, technical assistants, inspectors, and such other employees as may be necessary in the performance of its duties under this chapter.

(5) OFFICE.-The division shall maintain and keep open during reasonable business hours an office, which shall be provided in the capitol or some other suitable building in the City ofTallahassee, for the transaction of business under this chapter, at which office its official records and papers shall be kept. The office shall be furnished and equipped by the division. The division, commission, or any judge of industrial claims may hold sessions and conduct hearings at any place within the state.

(6) SEAL.-The division shall have a seal upon which shall be inscribed the words "State of Florida Department of Commerce-seal."

(7) DESTRUCTION OF OBSOLETE RECORDS. -The division is expressly authorized to provide by regulation for and to destroy obsolete records of the division and commission.

(8) ADVISORY COUNCIL.-The division may designate an advisory council to aid the division in formulating policies, discussing problems, and in assuring impartiality and freedom from political influence in the solution of such problems, related to the administration of this chapter or any other law administered by the division. The members of such advisory council shall receive no compensation for such services, but shall be reimbursed for traveling expenses as provided in s. 112.061.

(9) In the exercise of its duties and functions requiring administrative hearings, the division shall proceed in accordance with the Administrative Procedure Act. The authority of the division to issue orders resulting from administrative hearings as provided for in this chapter shall not infringe upon the jurisdiction of the judges of industrial claims.

History.-s. 44, ch. 17481, 1935; CGL 1936 Supp. 5966(42); s. 15, ch. 18413, 1937; s. 1, ch. 20299, 1941; s. 1, ch. 21875, 1943; s. 4, ch. 22814, 1945; s . 1, ch. 23920, 1947; s. 10, ch. 26484, 1951; s. 11, ch. 28241, 1953; s. 24, ch. 57-1; s. 1, ch. 57-785; s. 1, ch. 57-156; s. 1, ch. 63-274; s. 19, ch. 63-400; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 163, ch. 71-377; ss. 1, 2, ch. 72-143; s. 2, ch. 72-241; s. 1, ch. 73-283; s. 19, ch. 74-197; s. 21, ch. 75-209; s. 3, ch. 75-237. cf.-s. 20.03 Defini tion of commission.

s. 20. 17 Full-time Industrial Relations Commission within the Department of Commerce.

s. 113.07 Bonds of officials.

440.45 Judges of industrial claims.-(1) The Governor shall appoint as many full-time

judges of industrial claims as may be necessary to effectually perform the duties prescribed for them under this chapter. No person shall be appointed as a full-time judge of industrial claims who has not had 3 years' experience in the practice oflaw in this state; and no judge of industrial claims during a term of office shall engage in the private practice of law. The Governor may appoint any former judge of industrial claims to serve as a judge of industrial claims pro hac vice to complete the proceedings on: any claim with respect to which the judge had heard testimony and which remained pending at the time ofthe expiration ofthejudge's term of office. However, no former judge of industrial claims shall be appointed to serve as a judge of industrial claims pro hac vice for a period to exceed 60 successive days.

(2) Each full-time judge of industrial claims shall be appointed for a term of 4 years, but during the term of office may be removed by the Governor for cause. Prior to the expiration of the term of office of the judge of industrial claims, the conduct of said judge shall be reviewed by the Appellate District Judicial Nominating Commission in the appellate district in which the judge principally conducts hearings, which commission shall determine whether said judge shall be retained in office. A report of the decision shall be furnished to the Governor no later than 6 months prior to the expiration of the term of the judge of industrial claims. If the Judicial Nominating Commission votes not to retain the judge of industrial claims, the judge shall not be reappointed but shall remain in office until a successor is appointed and qualified. If the Judicial Nominating Commission votes to retain the judge of industrial claims in office, then the Governor shall reappoint said judge for a term of 4 years.

(3) Each full-time judge of industrial claims shall receive a salary of$4,000 less per year than that paid to a full-time industrial relations commissioner, payable out of the fund established in s. 440.50.

(4) The Governor may appoint any attorney who has 3 years' experience in the practice of law in this state to serve as a judge of industrial claims pro hac vice in the absence or disqualification of any fulltime judge of industrial claims or to serve upon a temporary basis as an additional judge of industrial claims in any area of the state in which it is determined by the Governor that a need exists therefor; however, no attorney so appointed by the Governor shall serve for a period to exceed 60 successive days.

(5) The division may delegate to its attorneys, examiners, safety representatives, field agents, inspectors, and other legal representatives such powers and authority as it may deem necessary in the administration of this chapter.

History.-s. 45, ch. 17481, 1935; CGL 1936 Supp. 5966(43); s. 2, ch. 57-245; s. 1, ch. 61-133; s. 1, ch. 63-179; s. 1, ch. 63-275; s. 1, ch. 65-541; s. 1, ch. 67-515; s. 2, ch. 67-554; s. 1, ch. 69-201; ss. 17, 35, ch. 69-106; s. 1, ch. 70-313; s. 1, ch. 71-290; s. 20, ch. 74-197; s. 3, ch. 74-363; s. 22, ch. 75-209.

440.46 Investigations by the division; refusal to admit; penalty.-

(1)(a) The division shall make studies and investigations with respect to safety provisions and the causes of injuries in employments covered by this chapter, and shall make to the Legislature and em-

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ployers and carriers such recommendations as it may deem proper as to the best means of preventing injuries. In making such studies and investigations, the division is authorized:

1. To cooperate with any agency of the United States charged with the duty of enforcing any law securing safety against injury in any employment covered by this chapter, or any agency or department of the state engaged in enforcing any laws to assure safety for employees.

2. To permit any such agency or department to have access to the records of the division.

(b) The division and its authorized representatives shall have the power and authority to enter and inspect any place of employment at any reasonable time for the purpose of investigating compliance with this chapter and making inspections for the proper enforcement of this chapter. Any employer or owner who refuses to admit any member of the division or its authorized representative to any place of employment or to permit investigation and inspection pursuant to this paragraph shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Should an accidental injury occur to any inspector or employee of the division while engaged in his official duties, the division shall be considered an employer under the provisions of this chapter and shall compensate such injured employee or his dependents in accordance with the provisions hereof.

(3) No other claim on account of such accidental injury may be maintained by any person against any employer who has accepted the terms of this chapter, except as herein provided.

History.-s. 46, ch. 17481, 1935; CGL 1936 Supp. 5966(44); s. 16, ch. 18413, 1937; s. 4, ch. 57-225; s. 3, ch. 57-245; ss. 17, 35, ch . 69-106; s. 369, ch. 71-136; s. 8, ch. 77-320.

440.47 Traveling expenses.-The commission, judges of industrial claims, and employees of the commission and division shall be reimbursed for traveling expenses as provided in s. 112.061. Such expenses shall be sworn to by the person who incurred the same and shall be allowed and paid as provided ins. 440.50 upon the presentation of vouchers therefor approved by the commission or division, whichever is applicable.

History.-s. 47, ch. 17481, 1935; CGL 1936 Supp. 5966(45); s. 19, ch. 63-400; ss. 17, 35. ch. 69-106; s. 23, ch. 75-209.

440.48 Annual report.-Annually on or before March 15, the Department of Commerce shall make to the Governor a report of the administration of this chapter for the preceding calendar year, including a detailed statement of the receipts of and expenditures from the fund established in s. 440.50, a statement of the causes of the accidents leading to the injuries for which the awards were made, together with such recommendations as the department deems advisable.

History.-s. 48, ch. 17481, 1935; CGL 1936 Supp. 5966(46); s. 12. ch. 20672, 1941; s. 12, ch. 28241, 1953; s. 24, ch. 57-1; ss. 17, 35, ch. 69-106; s. 164, ch. 71-377.

440.49 Rehabilitation of injured employees; Special Disability Trust Fund.

(1) In cases in which it appears that disability probably will be permanent, the division shall assist injured employees to obtain appropriate training,

education and employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal or state agencies in the vocational rehabilitation of injured employees. The division may, and it is authorized to, expend moneys from the special fund established by s. 440.50, for the purpose of assisting such injured employees to obtain appropriate training, education and employment in connection with their vocational rehabilitation. Such expenditures shall only be made in accordance with rules promulgated by the division establishing standards for eligibility and types, duration, and cost of training and educational programs to be made available. All hearings arising under this subsection shall be conducted by judges of industrial claims pursuant to s. 440.25. However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the division has been given reasonable time to evaluate the injured worker and advise all parties as to the rehabilitation program it may propose if said rehabilitation program is to be funded out of the fund established by s. 440.50. The division shall be a party to all hearings involving any claims made against the fund established by s. 440.50.

(2) Whenever the division determines that there is a reasonable probability that with appropriate training or education a person entitled to compensation for total or partial disability which is or is likely to be permanent may be rehabilitated to the extent that such person will require less care and attendance or to the extent that such person can become gainfully employed or increase earning capacity and that it is for the best interests of such person to undertake such training or education, if the injured employee without reasonable cause refuses to undertake the training or educational program determined by the division to be suitable, the judge of industrial claims may in the judge's discretion suspend, reduce, or limit the compensation otherwise payable to such person under this chapter, any provisions of this chapter to the contrary notwithstanding.

(3) In cases involving total disability adjudged to be permanent, within 2 years after a disability has been so adjudged, the division shall determine whether there is a reasonable probability that with appropriate training or education the injured employee may be rehabilitated to the extent that such employee can become gainfully employed and whether it is for the best interests of such person to undertake such training or education; and whenever the division determines that there is a reasonable probability that the injured employee may be so rehabilitated and that it is for the employee's best interests, if the injured employee without reasonable cause refuses to undertake the training or educational program determined by the division to be suitable, the judge of industrial claims shall suspend or reduce by not less than 50 percent the compensation otherwise payable to such employee under this chapter, any provisions of this chapter to the contrary notwithstanding.

(4) LIMITATION OF LIABILITY FOR SUBSE-

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QUENT INJURY THROUGH SPECIAL DISABILITY TRUST FUND.-

(a) Legislative intent.-It is the purpose of this subsection to encourage the employment of the physically handicapped by protecting employers from excess liability for compensation and medical expense when an injury to a handicapped worker merges with his preexisting permanent physical impairment to cause a greater disability than would have resulted from the injury alone. It shall not be construed to create or provide any benefits for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsection, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund.

(b) Definitions.-As used in this subsection: 1. "Permanent physical impairment" means any

permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging process.

2. "Merger" describes or means that: a. Had the permanent physical impairment not

existed, the subsequent accident or occupational disease would not have occurred;

b. The permanent disability resulting from the subsequent accident or occupational disease is materially and substantially greater than that which would have resulted had the permanent physical impairment not existed and the employer has been required to pay, and has paid, permanent disability compensation benefits for that materially and substantially greater disability; or

c. Death would not have been accelerated had the permanent physical impairment not existed.

3. "Excess permanent compensation" means that compensation for permanent disability or death benefits for which the employer or carrier is otherwise entitled to reimbursement from the Special Disability Trust Fund.

(c) Permanent disability after other physical impairment.-

1. Partial disability.-lf an employee who has a permanent physical impairment incurs a subsequent permanent disability from injury or occupational disease arising out of, and in the course of, his employment which merges with the preexisting permanent physical impairment to cause a permanent partial disability, the employer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for the last 60 percent of all compensation for permanent partial disability which the employer has been required to provide as a result of the subsequent accident or occupational disease.

2. Total disability.-If an employee who has a permanent physical impairment incurs a subsequent permanent disability from injury or occupational disease arising out of, and in the course of, his

employment which merges with the preexisting permanent physical impairment to cause permanent total disability, the employer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for all compensation for permanent total disability which is in excess of the first 175 weeks of permanent total disability compensation.

(d) When death results.-If death results from the subsequent disability contemplated in paragraph (c) within 1 year after the subsequent injury, or within 5 years after the subsequent injury when disability has been continuous since the subsequent injury, and it shall be determined that the death resulted from a merger, the employer shall, in the first instance, pay the funeral expenses and the death benefits prescribed by this chapter, but, subject to the limitations specified in paragraph (f), he shall be reimbursed from the Special Disability Trust Fund created by this subsection for the last 75 percent of all compensation allowable and paid for such death and for 75 percent of the amount paid as funeral expenses.

(e) Reimbursement for compensation paid for permanent disability or death.-Subject to the limitations specified in paragraph (f), and when the preexisting permanent physical impairment has contributed to the need either medically or circumstantially, for temporary disability and remedial treatment, care, and attendance, an employer entitled to reimbursement from the Special Disability Trust Fund for compensation paid for permanent disability or death shall be reimbursed from said fund for 50 percent of the first $10,000 paid as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13, for the same injury; thereafter, the employer shall be reimbursed from said fund for all sums paid by the employer as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13 which are in excess of$10,000. However, any amount in excess of $1,500 which is designated as consideration for future remedial treatment, care, and attendance in discharge of an employer's liability pursuant to the provisions of subsection 440.20(10) in which the employee is not permanently and totally disabled shall be reclassified for the purposes of this subsection as compensation for permanent disability.

(f) Reimbursement limitations.-!. No reimbursement shall be allowed under this

subsection unless the total amount otherwise reimbursable to the employer with respect to any case is $3,000 or more and it is established that the employer reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the preexisting physical condition is permanent and is, or is likely to be, a hindrance or obstacle to employment. However, when the employer establishes that he knew of the preexisting permanent physical impairment prior to the subsequent accident or occupational disease, there shall be a conclusive presumption that the employer considered the condition to be permanent and to be, or

109


likely to be, a hindrance or obstacle to employment, when said condition is one of the following:

a. Epilepsy. b. Diabetes. c. Cardiac disease. d. Marie-Strumpell disease. e. Amputation of foot, leg, arm, or hand. f. Total loss of sight of one or both eyes or a

partial loss of corrected vision of more than 75 percent bilaterally.

g. Residual disability from poliomyelitis. h . Cerebral palsy. 1. Multiple sclerosis. j. Parkinson's disease. k. Vascular disorder. l. Psychoneurotic disability following confine

ment for treatment in a recognized medical or mental institution for a period in excess of 6 months.

m. Hemophilia. n. Chronic osteomyelitis. o. Ankylosis of a major weight-bearing joint. p. Hyperinsulinism. q. Muscular dystrophy. r. Thrombophlebitis. s. Herniated intervertebral disc. t. Surgical removal of an intervertebral disc

or spinal fusion . u. Total deafness. v. Mental retardation, provided the em

ployee's intelligence quotient is such that he falls within the lowest 2 percentile of the general population. However, it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.

w. Any permanent physical condition which, prior to the industrial accident or occupational disease, constitutes a 20-percent impairment of a member or of the body as a whole.

2. The Special Disability Trust Fund shall not be liable for any costs, interest, penalties, or attorneys' fees.

3. An employer's or carrier's right to apportionment or deduction pursuant to ss. 440.02(19), 440.15(5)(c), and 440.151(1)(c) shall not preclude reimbursement from said fund except when the merger comes within the definition of subsubparagraph (b)2.b. and such apportionment or deduction relieves the employer or carrier from providing the materially and substantially greater permanent disability benefits otherwise contemplated in said paragraphs.

(g) Reimbursement of employer.-The right toreimbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or carrier entitled to such reimbursement with the division at Tallahassee prior to 60 days after the order awarding the excess permanent compensation with respect to which such reimbursement is claimed becomes final or, if payment of such excess permanent compensation is made by the employer or carrier without an award, prior to 60 days after the date the first payment of excess compensation for the permanent disability was made. The notice of claim shall contain such information as the division by rule or regulation may require; and the employer or carrier

claiming reimbursement shall furnish such evidence in support of the claim as the division reasonably may require. If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the division at Tallahassee within 60 days after notice to the employer or carrier of such denial or controversion. When such application for a hearing is timely filed, the claim shall be heard and determined in accordance with the procedure prescribed in s. 440.25 to the extent that same is applicable, and in accordance with the workmen's compensation rules of procedure. In such proceeding on a claim for reimbursement, the Special Disability Trust Fund shall be made the party respondent, and no findings of fact made with respect to the claim of the injured employee or the dependents for compensation, including any finding made or order entered pursuant to s. 440.20(10), shall be res judicata. The Special Disability Trust Fund shall not be joined or made a party to any controversy or dispute between an employee and the dependents and the employer or between two or more employers or carriers without the written consent of the fund. When it has been determined that an employer or carrier is entitled to reimbursement in any amount, the employer or carrier shall be reimbursed periodically every 6 months from the Special Disability Trust Fund for the compensation and medical benefits paid by the employer or carrier for which same is entitled to reimbursement, upon filing request therefor and submitting evidence of such payment in accordance with rules prescribed by the division.

(h)l. Special Disability Trust Fund.- There is established in the State Treasury a special fund to be known as the "Special Disability Trust Fund," which shall be available only for the purposes stated in this subsection, and the assets thereof shall not at any time be appropriated or diverted to any other use or purpose. The State Treasurer shall be the custodian of such fund and all moneys and securities in such fund shall be held in trust by such Treasurer and shall not be the money or property of the state. The State Treasurer is authorized to disburse moneys from such fund only when approved by the division and upon the order of the Comptroller, countersigned by the Governor. The State Treasurer shall deposit any moneys paid into such fund into such depository banks as the division may designate and is authorized to invest any portion of the fund which, in the opinion of the division, is not needed for current requirements, in the same manner and subject to all the provisions of the law with respect to the deposits of state funds by such Treasurer. All interest earned by such portion of the fund as may be invested by the State Treasurer shall be collected by him and placed to the credit of such fund.

2. Payments to Special Disability Trust Fund. -The Special Disability Trust Fund shall be maintained by annual assessments upon the insurance companies writing compensation insurance in the state and the self-insurers under this chapter, commencing with the fiscal year beginning July 1, 1963, which assessments shall become due and be paid on a quarterly basis at the same time and in addition to

110


the assessments provided in s. 440.51. The division shall estimate annually in advance the amount necessary for the administration of this subsection and the maintenance of this fund and shall make such assessment in the manner hereinafter provided. The annual assessment shall be calculated to produce during the ensuing fiscal year an amount whichwhen combined with that part of the balance in the fund on June 30 of the current fiscal year which is in excess of $100,000-is equal to the sum of disbursements from the fund during the immediate past 3 calendar years. Such amount shall be prorated ~mo?g the ins~rance companies writing compensatiOn msurance m the state and self-insurers. The net premiums collected by the companies on workmen's compensation premiums in this state and the amount of premiums a self-insurer would have to pay in this state if insured are the basis for computing the amount to be assessed as a percentage of net premiums. Such payments shall be made by each insurance company and self-insurer to the division for the Special Disability Trust Fund, in accordance with such regulations as the division may prescribe. The State Treasurer is hereby authorized to receive and credit to such Special Disability Trust Fund any sum or sums that may at any time be contributed to the state by the United States under any Act of Congress, or otherwise, to which the state may be or become entitled by reason of any payments made out of such fund.

(i) The division shall administer the Special Disability Trust Fund with authority to allow, deny, compromise, controvert and litigate claims made against it and to designate an attorney to represent it in proceedings involving claims against the fund, including negotiation and consummation of settlements, hearings before judges of industrial claims and the commission, and judicial review. Upon the application of the division or any party in interest, the commission may, in accordance with the procedure prescribed in s. 440.25, review orders of judges of industrial claims by which the fund may be adversely affected. The division or the attorney designated by it shall be given notice of all hearings and proceedings involving the rights or obligations of such fund; and shall have authority to make expenditures for such medical examinations, expert witness fees, depositions, transcripts of testimony, and the like, as may be necessary to the proper defense of any claim. The division shall appoint an advisory committee composed of representatives of management, compensation insurance carriers, and self-insurers to aid it in formulating policies with respect to conservation of the fund, who shall serve without compensation for such terms as specified by it, but be reimbursed for traveling expenses as provided in s. 112.061. All expenditures made in connection with conservatio.n of the fund, including the salary of the attorney designated to represent it and necessary travel expenses, shall be allowed and paid from the special disability trust fund as provided in this subsection upon the presentation of itemized vouchers therefor approved by the division.

(j) Effective dates.- The provisions of this subsection shall not be applicable to any case in which the accident causing the subsequent injury or death or

the disablement or death from a subsequent occupational disease shall have occurred prior to July 1, 1955; and the provisions of paragraphs (e) and {f) of this subsection shall not be applicable to any case in which the accident causing the subsequent injury or death or the disablement or death from a subsequent occupational disease shall have occurred prior to July 1, 1963.

History.-s. 49, ch. 17481, 1935; CGL 1936 Supp. 5966(47); s. 13, ch. 28241, 1953; s. 12, ch. 29778, 1955; s. 1, ch. 59-101; s. 2, ch. 63-235; s. 19, ch. 63-400; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 21, ch. 74-197; s. 24, ch. 75-209; ss. 151, 152, ch. 77-104.

440.50 Workmen's Compensation Administration Trust Fund.-

(lXa) There is established in the State Treasury a special fund to be known as the "Workmen's Compensation Administration Trust Fund" for the purpose of providing for the payment of all expenses in respect to the administration of this chapter, including the vocational rehabilitation of injured employees as provided in s. 440.49 and the payments due under s. 440.15(1Xe). Such fund shall be administered by the division. The State Treasurer shall be the custodian of such funds and all moneys and securities in such fund shall be held in trust by such Treasurer and shall not be the money or property of the state.

(b) The division is authorized to transfer as a loan an amount not in excess of $250,000 from such special fund to the Special Disability Trust Fund established by s. 440.49(4), which amount shall be repaid to said special fund in annual payments equal to not less than 10 percent of moneys received for such Special Disability Trust Fund.

(2) The State Treasurer is authorized to disburse moneys from such fund only when approved by the division and upon the order of the Comptroller, countersigned by the Governor. He shall be required to give bond in an amount to be approved by the division conditioned upon the faithful performance of his duty as custodian of such fund .

(3) The State Treasurer shall deposit any moneys paid into such fund into such depository banks as the division may designate and is authorized to invest any portion of the fund which, in the opinion of the division, is not needed for current requirements, in the same manner and subject to all the provisions of the la•.•! with respect to the deposit of state funds by such Treasurer. All interest earned by such portion of the fund as may be invested by the State Treasurer shall be collected by him and placed to the credit of such fund.

(4) All civil penalties provided in this chapter, if not voluntarily paid, may be collected by civil suit brought by the division and shall be paid into such fund.

History.-s. 50, ch. 17481, 1935; CGL 1936 Supp. 5966(48); s. 13, ch. 29778, 1955; s. 2, ch. 61-119; ss. 17, 35, ch . 69-106; s. 22, ch. 74-197.

440.51 Expenses of administration.-(!) The division shall estimate annually in ad

vance the amounts necessary for the administration of this chapter, in the following manner.

(a) The division shall as soon as practicable after July 1 in each year, determine the expense of administration of this chapter for the preceding fiscal year. The expense of administration for such preceding

111


fiscal year shall be used as the basis for determining the amount to be assessed against each carrier in order to provide for the expenses of the administration of this chapter for the current fiscal year.

(b) The total expenses of administration shall be prorated among the insurance companies writing compensation insurance in the state, and self-insurers. The net premiums collected by the companies and the amount of premiums a self-insurer would have to pay if insured are the basis for computip.g the amount to be assessed. This amount may be assessed as a specific amount or as a percentage of net premiums payable as the division may direct, provided such amount so assessed shall not exceed 4 percent of such net premiums. The insurance companies may elect to make the payments required under s. 440.15(1)(e) rather than having these payments made by the division. In that event, such payments will be credited to the insurance companies, and the amount due by the insurance company under this section will be reduced accordingly.

(2) The division shall provide by regulation for the collection of the amounts assessed against each carrier. Such amounts shall be paid within 30 days from the date that notice is served upon such carrier. If such amounts are not paid within such period, there may be assessed for each 30 days the amount so assessed remains unpaid, a civil penalty equal to 10 percent of the amount so unpaid, which shall be collected at the same time and a part of the amount assessed.

(3) If any carrier fails to pay the amounts assessed against him under the provisions of this section within 60 days from the time such notice is served upon him, the Department oflnsurance upon being advised by the division may suspend or revoke the authorization to insure compensation in accordance with the procedure in s. 440.38(2).

(4) All amounts collected under the provisions of this section shall be paid into the fund established in s. 440.50.

(5) Any amount so assessed against and paid by an insurance carrier shall be allowed as a deduction against the amount of any other tax levied by the state upon the premiums, assessments or deposits for workmen's compensation insurance on contracts or policies of said insurance carrier.

(6)(a) The division may require from each carrier, at such time and in accordance with such regulations as the division may prescribe, reports in respect to all gross earned premiums and of all payments of compensation made by such carrier during each prior period, and may determine the amounts paid by each carrier and the amounts paid by all carriers during such period.

(b) The division may require from each self-insurer, at such time and in accordance with such regulations as the division may prescribe, reports in respect to wages paid, the amount of premiums such self-insurer would have to pay if insured, and all payments of compensation made by such self-insurer during each prior period, and may determine the amounts paid by each self-insurer and the amounts paid by all self-insurers during such period. For the purposes of this section the payroll records of each self-insurer shall be open to annual inspection and

audit by the division or its authorized representative, during regular business hours; and if any audit of such records of a self-insurer discloses a deficiency in the amounts reported to the division or in the amounts paid to the division by such self-insurer pursuant to this section, the division may assess the cost of such audit against such self-insurer.

(7) The division shall keep accumulated cost records of all injuries occurring within the state coming within the purview of this chapter on a policy and calendar year basis. For the purpose of this chapter, a "calendar year" is defined as the year in which the injury is reported to the division; "policy year" is defined as that calendar year in which the policy becomes effective and the losses under such policy shall be chargeable against the policy year so defined.

(8) The division shall assign an account number to each employer under this chapter and an account number to all insurance carriers authorized to write workmen's compensation insurance in the state, and it shall be the duty of the division under the account number so assigned to keep the cost experience of each carrier and the cost experience of each employer under the account number so assigned by calendar and policy year as above defined.

(9) In addition to the above, it shall be the duty of the division to keep the accident experience, as classified by the division, by industry as follows:

(a) Cause of the injury; (b) Nature of the injury, and (c) Type of disability. (10) In every case where the duration of disabili

ty exceeds 30 days, the carrier shall establish a sufficient reserve to pay all benefits to which the injured employee, or in case of death, his dependents, may be entitled to under the law. In establishing the reserve, consideration shall be given to the nature of the injury, the probable period of disability, and the estimated cost of medical benefits.

(11) The division shall furnish to any employer or carrier, upon request, its individual experience. The division shall furnish to the Department of Insurance, upon request , the Florida experience as developed under policy year or calendar year.

(12) In addition to any other penalties provided by this law, the failure to submit any report or other information required by this law shall be just cause to suspend the right of a self-insurer to operate as such; or, upon certification by the division to the Department oflnsurance that a carrier has failed or refused to furnish such reports shall be just cause for the Department of Insurance to suspend or revoke the license of such carrier.

History.-s. 51, ch. 17481, 1935; CGL 1936 Supp. 5966(49); s. 17, ch. 18413,. 1937; s. 1, ch. 24081, 1947; s. 14, ch. 28241, 1953; ss. 14, 15, ch. 29778, 1955; ss. 13, 17, 35, ch. 69·106; s. 23, ch. 74·197; s. 25, ch. 75-209.

440.52 Registration of insurance carriers; suspension or revocation of authority.-

(! ) Each insurance carrier who desires to write such compensation insurance in compliance with this chapter shall be required, before writing such insurance, to register with the division and pay a registration fee of $100. This shall be deposited by the division in the fund created by s. 440.50.

(2) If the division finds after due notice and hear-

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ing, at which the insurance carrier is entitled to be heard in person or by counsel and present evidence, that the insurance carrier has repeatedly failed to comply with its obligations under this chapter, the division may request the Department oflnsurance to suspend or revoke the authorization of such insurance carrier to write workmen's compensation insurance under this chapter. Such suspension or revocation shall not affect the liability of any such insurance carrier under policies in force prior to the suspension or revocation.

History.- s. 52, ch. 17481, 1935; CGL 1936 Supp. 5966(50); ss. 17, 35, ch. 69-106; s . 1, ch. 70-30; s. 1, ch. 70-439.

440.53 Effect of unconstitutionality.-lf any part of this chapter is adjudged unconstitutional by the courts, and such adjudication has the effect of invalidating any payment of compensation under this chapter, the period intervening between the time the injury was sustained and the time of such adjudication shall not be computed as a part of the time prescribed by law for the commencement of any action against the employer in respect of such injury; but the amount of any compensation paid under this chapter on account of such injury shall be deducted from the amount of damages awarded in such action in respect of such injury.

History.-s. 53, ch. 17481, 1935; CGL 1936 Supp. 5966(51).

440.54 Violation of Child Labor Law.-If the judge of industrial claims determines that the injured employee at the time of the accident is a minor employed, permitted or suffered to work in violation of any of the provisions of the child labor laws of Florida, the employer shall, in addition to the normal compensation and death benefits provided by this chapter, pay such additional compensation as the judge of industrial claims in may determine according to the circumstances of the case or the seriousness of the violation, provided that the total compensation so payable shall not exceed double the amount otherwise payable under this chapter. The employer alone and not the insurance carrier shall be liable for the increased compensation or increased death benefits provided for by this section. Any provision in an insurance policy undertaking to protect an employer from such increased liability shall be void.

History.-s. 18, ch. 18413, 1937; CGL 1940 Supp. 5966(54); s. 15, ch. 28241, 1953; ss. 17, 35, ch. 69-106; s. 26, ch. 75-209.

440.55 Proceedings against state.-Any person entitled to compensation benefits by reason of the injury or death of an employee of the state, its boards, bureaus, departments, agencies, or subdivisions employing labor, may maintain proceedings and actions at law against the state, its boards, bureaus, departments, agencies, and subdivisions, for such benefit, said proceedings and action at law to be in the same manner as provided herein with respect to other employers.


440.56 Safety rules and provisions; penalty.-

(1) Every employer as defined in s. 440.02 shall furnish employment which shall be safe for the employees therein, furnish and use safety devices and

safeguards, adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and do every other thing reasonably necessary to protect the life, health, and safety of such employees. As used in this section, the terms "safe" and "safety" as applied to any employment or place of employment shall mean such freedom from danger as is reasonably necessary for the protection of the life, health, and safety of employees or the public, including conditions and methods of sanitation and hygiene. Safety devices and safeguards required to be furnished by the employer by the provisions of this section or by the division under authority of this section shall not include personal apparel and protective devices that replace personal apparel normally worn by employees during regular working hours.

(2) The division shall have the power, jurisdiction and authority:

(a) To investigate and prescribe what safety devices, safeguards or other means of protection shall be adopted for the prevention of accidents in every employment or place of employment, and to determine what suitable devices, safeguards, or other means of protection for the prevention of industrial or occupational diseases shall be adopted or followed in any or all such employments, or places of employment, and to make, amenq or repeal reason~ble rules for the prevention of accidents and the prevention of industrial or occupational diseases.

(b) To ascertain, fix, and order such reasonable standards and rules for the construction, repair and maintenance of places of employment as shall render them safe. Such rules and standards shall be adopted in accordance with chapter 120.

(3) The division and its authorized representatives shall have the power and authority to enter at any reasonable time any place of employment for the purpose of examining any tool, appliance, or machinery used in such employment and of making inspections for the proper enforcement of this section. No employer or owner shall refuse to admit any member of the division or its authorized representatives to any place of employment.

(4) If any employer violates or fails or refuses to comply with any reasonable rule adopted by the division, in accordance with chapter 120, for the prevention of accidents or industrial or occupational diseases or any lawful order of the division in connection with the provisions of this section or fails or refuses to furnish or adopt any safety device, safeguard, or other means of protection prescribed by the division pursuant to this section for the prevention of accidents or industrial or occupational diseases, after the employer has been given reasonable notice in writing by the division or its authorized representative, not less than 15 days prior thereto, of the specific violation, omission, failure or refusal charged by the division, or its authorized representative, the division after notice and hearing in accordance with chapter 120, may assess against such employer a civil penalty of not less than $20 nor more than $100. Each day such violation, omission, failure or refusal continues after the employer has been given notice thereof in writing as herein provided shall be deemed a continuing violation and the penalty may

113


not exceed $1,000. The division shall give the employer at least 14 days' notice of such hearing by personal service or registered mail, and the hearing shall be held in the county where the violation, omission, failure or refusal is alleged to have occurred, unless otherwise agreed to by the employer and authorized by the division. The hearing shall be conducted by the division in accordance with the requirements of chapter 120.

(5) In estimating the amounts necessary for the administration of this chapter, in accordance with s. 440.51, the division shall also include estimates of the amounts necessary for the administration ofthis section which shall be made in the manner set forth in s. 440.51; and such amounts as may be needed to administer this section shall be disbursed from the fund established pursuant to s. 440.50 in the manner therein provided. If this subsection or the application of such funds to the administration of this sect ion be declared invalid for any reason, the validity of ss. 440.50 and 440.51 as applied to the provisions of this chapter other than this section shall not be affected thereby.

(6) The division shall appoint and fix the salary of a full-time administrator of industrial safety, who shall be appointed in accordance with the provisions of s. 440.44(4Xa); provided, however, that no person shall be appointed to such position unless he either has a degree from a recognized college of engineering and the equivalent of 8 full years' experience in safety engineering or has had the equivalent of 10 full years' experience in safety engineering. It shall be the duty of the administrator of industrial safety, under the direction and supervision of the division, to enforce the safety provisions of this chapter and all rules and regulations adopted by the commission pursuant to this section.

(7) The division shall cooperate with the Federal Government so that duplicate inspections will be avoided yet assure safe places of employment for the

citizens of this state. Hlstory.-s. 20, ch. 18413, 1937; CGL 1940 Supp. 5966(56); s. 2, ch. 24081,

1947; s. 11, ch. 25035, 1949; s. 16, ch. 29778, 1955; ss. 2, 3, ch. 57-293; ss. 1-3, ch. 61-428; s. 30, ch. 63-512; s 1, ch. 67-554; s. 1, ch. 69-267; ss. 4, 17, 35, ch. 69·106; s. 3, ch. 70-148; s. 1, ch. 70-439; s. 2, ch. 72-243; ss. 27, 30, ch. 7&-209. cf.-s. 837.012 Perjury not in an official proceeding.

s. 837.02 Perjury in official proceedings.

440.57 Pooling liabilities.-The division may, under such rules and regulations as it may prescribe, permit two or more employers to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers and each employer member of such approved group shall be classified as a self-insurer as defined in this chapter.

Hlstory.-s. 20Y, , ch. 18413, 1937; CGL 1940 Supp. 5966(57); ss. 17, 35, ch. 69-106.

440.58 Self·insurer members; payment of delinquent premiums and assessments.-Upon petition of the trustees of the following self-insurers groups: Printing Industry Associates, Allied Gasoline Retailers Association, Florida Plumbing and Mechanical Contractors, Florida State Retailers Association, Automotive Industries of Florida, Florida Nurserymen and Growers Association, Florida Pest Control Association, Florida Wholesalers Association, Florida Electrical Contractors, Florida Home Builders, Florida Restaurant Association, and Florida Nursing Home Association, who entered into agreements with Robert F. Coleman of Florida, Inc., as servicing agent, or any other self-insurers groups similarly situated, the division shall enter its order requiring the employer members and former members of said groups liable therefor to pay all delinquent premiums and all necessary assessments, such payments to be paid to the division and by it disbursed to said trustees to be used for the payment of workmen's compensation claims and related compensation expenses.

History .-s. 2, ch. 67 -606; ss. 17, 35, ch. 69-106.

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Ch. 441 EMPLOYEES TRUST BENEFIT LAW Ch. 441

CHAPTER 441

EMPLOYEES TRUST BENEFIT LAW

441.01 Trust for employees. 441.02 Trust for self-employed individuals and oth

ers.

441.01 Trust for employees.-A trust created by an employer as part of a stock bonus plan, pension plan, disability or death benefit plan, or profit sharing plan, for the exclusive benefit of some or all ofhis employees, to which contributions are made by such employer or employees, or both for the purpose of distributing to such employees the earnings or the principal, or both earnings and principal, of the fund so held in trust, shall not be deemed to be invalid as violating any existing law against perpetuities or suspension of the power of alienation of title to property; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created.

History.-s. 1, ch. 29948, 1955.

441.02 Trust for self-employed individuals and others.-No trust created under a retirement plan for which provision has been made under the laws of the United States exempting such trust from federal income tax shall be deemed to be invalid as violating any existing laws against perpetuities or suspension ofthe power of alienation oftitle to property or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created, may be permitted to accumulate the income until such time as such income shall become distributable to the beneficiary or beneficiaries under the terms of the trust and may according to its terms be made irrevocable and the interests of its beneficiary or beneficiaries therein may be made nontransferable by assignment or otherwise.

History.-s. 2, ch. 29948, 1955.

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Ch. 443 UNEMPLOYMENT COMPENSATION LAW Ch. 443

CHAPTER 443

UNEMPLOYMENT COMPENSATION LAW

443.01 443.02 443.03 443.04 443.05 443.06 443.07 443.08 443.09 443.10

443.11 443.12

443.13 443.14

443.15 443.16

443.17 443.18 443.19

443.20 443.21 443.22

Short title. Declaration of public policy. Definitions. Payment of benefits. Benefit eligibility conditions. Disqualification for benefits. Procedure concerning claims. Contributions. Employing units affected. Unemployment Compensation Trust Fund;

establishment and control. Administrative organization. Division and board; powers, duties, etc.;

rules and regulations; personnel; advisory councils; records and reports; cooperation, etc.

State Employment Service. Employment Security Administration

Trust Fund; appropriation; reimbursement.

Collection of contributions. Waiver of rights; fees; privileged communi-

cations. Benefits not alienable. Reciprocal arrangements. Unemployment Compensation Trust Fund

to be sole source of benefits; nonliability of state.

Rule of liberal construction. Saving clause. Penalties.

443.01 Short title.-This chapter shall be known and may be cited as the "Unemployment Compensation Law."


tablishment and maintenance of free public employment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, subject, however, to the specific provisions of this chapter.

History.-s. 1, ch. 18402, 1937; CGL 1940 Supp. 4151(489); s. 1, ch. 20685, 1941.

443.03 Definitions.-As used in this chapter, unless the context clearly requires otherwise:

(1) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual's benefit year.

(2) "Benefits" means the money payable to an individual, as provided in this chapter, with respect to his unemployment.

(3) "Benefit year," with respect to any individual, means the 1-year period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits, and thereafter, the 1-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits, after the termination of his last preceding benefit year. Any claim for benefits made in accordance with s. 443.07(2) shall be deemed to be a "valid claim" for the purposes of this subsection if the individual has been paid wages for insured work in accordance with the provision of s. 443.05(1)(e) and is unemployed as defined in subsection (12)(a) of this section at the time of the filing of such claim. Provided, however, that the '[division] may in its discretion provide by regulation for the establishment of a uniform benefit year for all workers in one or more groups or classes of service or within a particular industry when and if it has been determined by the '[division], after

443.02 Declaration of public policy.-As a notice to the industry and to the workers in such guide to the interpretation and application of this industry and an opportunity to be heard in the matchapter, the public policy of this state is declared to ter, that such groups or classes of workers in a parbe as follows: Economic insecurity due to unemploy- ticular industry periodically experience unemploy- . ment is a serious menace to the health, morals, and ment resulting from layoffs or shutdowns for limited welfare of the people of this state. Unemployment is periods of time. therefore a subject of general interest and concern (4) "Calendar quarter" means the period of 3 which requires appropriate action by the Legislature consecutive calendar months ending on March 31, to prevent its spread and to lighten its burden which June 30, September 30, and December 31, excluding, now so often falls with crushing force upon the un- however, any calendar quarter or portion thereof employed worker and his family. The achievement which occurs prior to January 1, 1938, or the equivaof social security requires protection against this lent thereof as the '[division] may by regulation pregreatest hazard of our economic life. This objective scribe. can be furthered by operating free public employ- (5) "Employment," subject to the other proviment offices in affiliation with a nationwide system sions of this chapter, means any service performed of employment services, by devising appropriate by an employee for the person employing him. methods for reducing the volume of unemployment (a) The term "employment" shall include any and by the systematic accumulation of funds during service performed prior to January 1, 1978, which the periods of employment from which benefits may was employment as defined in this subsection prior be paid for periods of unemployment thus maintain- to such date and, subject to the other provisions of ing purchasing power and limiting the serious social this subsection, service performed after December consequences of unemployment. The Legislature, 31, 1977, including service in interstate commerce, therefore, declares that in its considered judgment by: the public good, and the general welfare of the citi- 1. Any officer of a corporation. zens of this state require the enactment of this meas- 2. Any individual who, under the usual common ure, under the police power of the state, for the es- law rules applicable in determining the employer-

116


employee relationship, has the status of an employee.

3. Any individual other than an individual who is an employee under subparagraph 1. or subparagraph 2., who performs services for remuneration for any person:

a. As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or drycleaning services for his principal.

b. As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged on a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations.

For purposes of subparagraph (a)3., the term "employment" shall include services described in a. and b. above and performed after December 31, 1971, only if:

(I) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;

(II) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and

(Ill) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.

(b) The term "employment" shall include: 1. Service performed after December 31, 1971, by

an individual in the employ of this state or any of its instrumentalities (or in the employ of this state and one or more other states or their instrumentalities) for a hospital or institution of higher education located in this state, provided such service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of s. 3306(c)(7) of that act and is not excluded from "employment" under paragraph (d) of this subsection.

a. "Institution of higher education," for the purposes of this section, means an educational institution which:

(I) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;

(II) Is legally authorized in this state to provide a program of education beyond high school;

(Ill) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and

(IV) Is a public or other nonprofit institution.

Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this state and recognized as such by this state are institutions of higher education for purposes of this section.

b. "Hospital" means an institution which has been licensed, certified, or approved by the Department of Health and Rehabilitative Services as a hospital.

2. Service performed after December 31, 1971, and prior to January 1, 1978, in the employ of this state or any of its wholly owned instrumentalities, provided such service is excluded from "employment" as defined in s. 3306(c)(7) of the Federal Unemployment Tax Act and is not excluded from "employment" under paragraph (d) ofthis subsection.

3. Service performed after December 31, 1973, and prior to January 1, 1978, in the employ of any political subdivision of this state or any instrumentality thereof, provided such service is excluded from "employment" as defined in s. 3306(c)(7) of the Federal Unemployment Tax Act and is not excluded from "employment" under paragraph (d) of this subsection.

4. Service performed after December 31, 1977, in the employ of this state or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities, any instrumentality of more than one of the foregoing, or any instrumentality of any of the foregoing and one or more other states or political subdivisions, provided such service is excluded from "employment" as defined ins. 3306(c)(7) of the Federal Unemployment Tax Act and is not excluded . from "employment" under paragraph (d) of this subsection.

(c) The term "employment" shall include service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other organization, but only if the following conditions are met:

1. The service is excluded from "employment" as defined in the Federal Unemployment Tax Act solely by reason of s. 3306(c)(8) of that act; and

2. The organization had four or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time.

(d) For the purposes of paragraphs (b) and (c), the term "employment" does not apply to service performed:

1. In the employ of: a. A church or convention or association of

churches. b. An organization which is operated primarily

for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.

2. By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order.

3. Prior to January 1, 1978, in the employ of a

117


nonprofit educational institution which is not an institution of higher education and which would otherwise be employment as defined in paragraph (c) of this subsection.

4. After December 1, 1971, in the employ of a governmental entity referred to in subparagraph (b)2., and after December 31, 1973, in the employ of a governmental entity referred to in subparagraph (b)3., and after December 31, 1977, in the employ of a governmental entity referred to in subparagraph (b)4., if such service is performed by an individual in the exercise of duties:

a . As an elected official. b. As a member of a legislative body, or a mem

ber of the judiciary, of a state or political subdivision. c. As an employee serving on a temporary basis

in case of fire, storm, snow, earthquake, flood, or similar emergency.

d. In a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position or a policymaking or advisory position, the performance of the duties of which ordinarily does not require more than 8 hours per week.

5. In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work.

6. As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving such work relief or work training, except that this subparagraph does not apply to unemployment work-relief or work-training programs for which unemployment compensation coverage is required under a federal law, rule, or regulation.

7. Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution by an inmate of the prison or correctional institution, and after December 31, 1977, by an inmate of a custodial or penal institution.

(e) The term "employment" shall include an individual's entire service, performed within or both within and without this state if:

1. The service is localized in this state; or 2. The service is not localized in any state, but

some of the service is performed in this state and a . The base of operations, or, if there is no base

of operations, then the place from which such service is directed or controlled, is in this state, or

b. The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.

(f) Services not covered under paragraph (e)2. of this subsection and performed entirely without this state, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the Federal Government, shall be deemed to be employment sub-

ject to this chapter if the individual performing such services is a resident of this state and the division approves the election of the employing unit for whom such services are performed that the entire service of such individual shall be deemed to be employment subject to this chapter.

(g) Service shall be deemed to be localized within a state if:

1. The service is performed entirely within such state; or

2. The service is performed both within and without such state, but the service performed · without such state is incidental to the individual's service within the state; for example, it is temporary or transitory in nature or consists of isolated transactions.

(h) The term "employment" shall include services covered by an arrangement pursuant to s. 443.18 between the division and the agency charged with the administrat ion of any other state or Federal Unemployment Compensation Law, pursuant to which all services performed by an individual for an employing unit are deemed to be performed entirely within this state, if the division has approved an election of the employing unit for which such services are performed, pursuant to which the entire service of such individual during the period covered by such election is deemed to be insured work.

(i)l. The term "employment" shall include the service of an individual who is a citizen of the United States, performed outside the United States (except in Canada and in the case ofthe Virgin Islands, after December 31, 1971, and before January 1 ofthe year following the year in which the United States Secretary of Labor approves the Virgin Islands' unemployment compensation law for the first time under s. 3304(a) of the Internal Revenue Code of 1954) in the employ of an American employer (other than service which is deemed "employment" under the provisions of paragraphs (b) or (c) of this subsection or the parallel provisions of another state's law), if:

a. The employer's principal place of business in the United States is located in this state.

b. The employer has no place of business in the United States, but:

(I) The employer is an individual who is a resident of this state.

(II) The employer is a corporation which is organized under the laws of this state.

(III) The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state.

c. None of the criteria of subparagraphs 1. and 2. of this paragraph is met, but the employer has elected coverage in this state, or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.

2. An "American employer," for purposes of this paragraph, means:

a. An individual who is a resident of the United States. ·

b. A partnership, if two-thirds or more of the partners are residents of the United States.

c. A trust, if all of the trustees are residents of the United States.

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d. A corporation organized under the laws of the United States or of any state.

3. The term "United States" includes the states, the District of Columbia, the Commonwealth of Puerto Rico, and, effective 1 day after the United States Secretary of Labor approves its unemployment compensation law for the first time under s. 3304(a) of the Internal Revenue Code of 1954, the term shall include the Virgin Islands.

(j)l. The term "employment" shall also include all service performed by an officer or member of a crew of an American vessel or American aircraft on or in connection with such vessel or aircraft, provided that the operating office, from which the operations .of such vessel or aircraft operating within or within and without the United States is ordinarily and regularly supervised, managed, directed, and controlled, is within this state.

2. The term "American vessel" means any vessel documented or numbered under the laws of the United States; and includes any vessel which is neither documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew is employed solely by one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state.

3. The term "American aircraft" means an aircraft registered under the laws of the United States.

(k) Notwithstanding any other provisions of this subsection, service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this act.

(l) The term "employment" shall not include: 1. Service performed by an individual in agricul

tural labor, except as provided in paragraph (n) of this subsection; however, the provisions of paragraph (n) of this subsection shall not reduce the coverage provided under sub-sub-subparagraph d.(III) of this subparagraph. For purposes of this subparagraph, the term "agricultural labor" means any service performed prior to January 1, 1972, which was agricultural labor as defined in this subparagraph prior to such date, and remunerated service performed after December 31, 1971:

a. On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife.

b. In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.

c. In connection with the production or harvesting of any commodity defined as an agricultural

commodity ins. 15(g) of the Agricultural Marketing Act, as amended (46 Stat. 1550, s. 3; 12 U.S.C. 114j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.

d.(l) In the employ of the operator of a farm in handling, ·planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.

(II) In the employ of a group of operators offarms (or a cooperative organization of which such operators are members) in the performance of service described in sub-sub-subparagraph (1), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.

(III) The provisions of sub-sub-subparagraphs (I) and (II) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in con-

. nection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption or in connection with grading, packing, packaging, or processing fresh citrus fruits.

e. On a farm operated for profit if such service is not in the course of the employer's trade or business.

f. As used in this paragraph, the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

2. Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority, except as provided in paragraph (o) of this subsection.

3. Casual labor not in the course of the employer's trade or business. For the purposes of this subsection "casual labor" shall mean labor which is occasional, incidental, or irregular, not exceeding 200 man-hours in total duration. Duration shall mean the period of time from the commencement to the completion of the particular job or project; however, services performed by an employee for his employer during a period of 1 calendar month or any 2 consecutive calendar months shall be deemed to be casual labor only if such service is performed on not more than 10 calendar days, whether or not such days are consecutive. If any of the services of an individual on a particular labor project are not casual labor as defined, then none of the services of stich individual on such job or project shall be deemed casual labor. "Not in the course of the employer's trade or business" shall mean that which does not promote or advance the trade or business of the employer. In order for services to be exempt under this subsection, such services shall constitute casual labor, as defined, and not in the course of the employ-

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er's trade or business, as defined. ized and operated exclusively for religious, charita-4. Service performed on or in connection with a ble, scientific, testing for public safety, literary, or

vessel or aircraft not an American vessel or Ameri- educational purposes, or for the prevention of cruelcan aircraft, if the employee is employed on and in ty to children or animals, no part of the net earnings connection with such vessel or aircraft when outside of which inures to the benefit of any private sharethe United States. holder or individual, no substantial part of the ac-

5. Service performed by an individual in (or as an tivities of which is carrying on propaganda, or otherofficer or member of the crew of a vessel while it is wise attempting to influence legislation, and which engaged in) the . catching, taking, harvesting, culti- does not participate in, or intervene in (including the vating, or farming of any kind offish, shellfish, crus- publishing or distributing of statements), any polititacea, sponges, seaweeds, or other aquatic forms of cal campaign on behalf of any candidate for public animal and vegetable life (including service per- office, except as provided in paragraph (c) of this formed by any such individual as an ordinary inci- subsection. dent to any such activity), except: 10. Service with respect to which unemployment

a . Service performed in connection with the compensation is payable under an unemployment catching or taking of salmon or halibut, for commer- compensation system established by an Act of Con-cia! purpos~s. gress.

b. Service performed on, or in connection with, a 11.a. Service performed in any calendar quarter vessel of more than 10 net tons (determined in the in the employ of any organization exempt from inmanner provided for determining the register ton- come tax under s. 501(a) of the Internal Revenue nage of merchant vessels under the laws of the Unit- Code (other than an organization described in s. ed States). 401(a)), or under s. 521, if the remuneration for such

6. Service performed by an individual in the em- service is less than $50 . . ploy of his son, daughter, or spouse, and service per- b. Service performed in the employ of a school, formed by a child under the age of 18 in the employ college, or university, if such service is performed by of his father or mother. a student who is enrolled and is regularly attending

7. Service performed in the employ of the United classes at such school, college, or university. States Government or of an instrumentality of the 12. Services performed in the employ of a foreign United States which is: government (including service as a consular or other

a . Wholly or partially owned by the United officer or employee of a nondiplomatic representa-States. tive).

b. Exempt from the tax imposed by s. 3301 of the 13. Service performed in the employ of an instru-Internal Revenue Code by virtue of any provision of mentality wholly owned by a foreign government: federal law which specifically refers to such section a . If the service is of a character similar to that (or the corresponding section of prior law) in grant- performed in foreign countries by employees of the ing such exemption; except that to the extent that United States Government or of an instrumentality the Congress shall permit states to require any in- thereof; and strumentalities of the United States to make pay- b. The Secretary of State shall certify to the Secments into an unemployment fund under a state retary of the Treasury that the foreign government, unemployment compensation law, all of the provi- with respect to whose instrumentality exemption is sions of this law shall be applicable to such instru- claimed, grants an equivalent exemption with rementalities, and to services performed for such inspect to similar service performed in the foreign strumentalities, in the same manner, to the same country by employees of the United States Governextent, and on the same terms as to all other employment and of instrumentalities thereof. ers, employing units, individuals, and services. If 14. Service performed as a student nurse in the this state shall not be certified for any year by the employ of a hospital or a nurses' training school by Secretary of Labor under s. 3304 of the Federal In- an individual who is enrolled and is regularly atternal Revenue Code, the payments required of such tending classes in a nurses' training school charterinstrumentalities with respect to such year shall be ed or approved pursuant to a state law; service perrefunded by the division from the fund in the same formed as an intern in the employ of a hospital by an manner and within the same period as is provided in individual who has completed a 4-year course in a s. 443.15(6) with respect to contributions erroneously medical school chartered or approved pursuant to collected. state law; and service performed by a patient of a

8. Service performed in the employ of a state, or hospital for such hospital. any political subdivision thereof, or any instrumen- 15. Service performed by an individual for a pertality of any one or more of the foregoing which is son as an insurance agent or as an insurance soliciwholly owned by one or more states or political sub- tor, if all such service performed by such individual divisions, except as provided in paragraph (b) of this for such person is performed for remuneration solely subsection, and any service performed in the employ by way of commission. of any instrumentality of one or more state or politi- 16. Service performed by an individual for a percal subdivisions, to the extent that the instrumental- son as a real estate salesman or agent, if all such ity is, with respect to such service, immune under service performed by such individual for such person the Constitution of the United States from the tax is performed for remuneration solely by way of com-imposed by s. 3301 of the Internal Revenue Code. mission.

9. Service performed in the employ of a corpora- 17. Service performed by an individual under the tion, community chest, fund, or foundation, organ- age of 18 in the delivery or distribution of newspa-

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pers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.

18. Service covered by an arrangement between the division and the agency charged with the administration of any other state or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during the period covered by such employing unit's duly approved election are deemed to be performed entirely within such agency's state or under such federal law.

19. Service performed by an individual under the age of 22 who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its education activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers.

20. Service performed by an individual for a person as a barber, if all such service performed by such individual for such person is performed for remuneration solely by way of commission.

(m) If the services performed during one-half or more of any pay period by an employee for the person employing him constitute employment, all of the services of such employee for such period shall be deemed to be employment; but if the services performed during more than one-half of any such pay period by an employee for the person employing him do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment. As used in this subsection the term "pay period" means a period .(of not more than 31 consecutive days) for which a payment of remuneration is ordinarily made to the employee by the person employing him. This subsection shall not be applicable with respect to services performed in a pay period by an employee for the person employing him, where any of such service is excepted by subparagraph 9. of paragraph (l).

(n) The term "employment" shall include service performed after December 31, 1977, by an individual in agricultural labor as defined in subparagraph (1)-1. of this subsection, when:

1. Such service is performed for a person who: a . During any calendar quarter in either the cur

rent or the preceding calendar year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor (not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in subparagraph 2. of this paragraph).

b. For some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred

to in subparagraph 2. of this paragraph) 10 or more individuals, regardless of whether they were employed at the same moment of time.

2. Such service is performed in agricultural labor if performed after December 31, 1979, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to ss. 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act. Service performed in agricultural labor by an alien individual as described in this subparagraph shall not be considered employment if such service is performed prior to January 1, 1980.

3. Such service is performed by any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person.

a. For purposes of this subparagraph, a crew member shall be treated as an employee of the crew leader:-

(1) If the crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of1963 or substantially all of the members of the crew operate or maintain tractors, mechanized harvesting or crop-dusting equipment, or any other mechanized equipment which is provided by the crew leader; and

(II) If such individual is not an employee of such other person within the meaning of paragraph (5)(a).

b. For the purposes of this subparagraph, ·in the· case of an individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of the crew leader under sub-subparagraph a.:

(I) Such other person and not the crew leader shall be treated as the employer of such individual; and

(II) Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his own behalf or on the behalf of such other person) for the service in agricultural labor performed for such other person.

c. For the purposes of this subparagraph, the term "crew leader" means an individual who:

(I) Furnishes individuals to perform service in agricultural labor for any other person;

(II) Pays (either on his own behalf or on behalf of such other person) the individuals so furnished by him for the service in agricultural labor performed by them; and

(III) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.

(o) The term "employment" shall include domestic service after December 31, 1977, in a private home, local college club, or local chapter of a college fraternity or sorority performed for a person who paid cash remuneration of $1,000 or more after December 31, 1977, in any calendar quarter in the current calendar year or the preceding calendar year to individuals employed in such domestic service.

(6) "Employing unit" means: Any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or

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foreign, or the receiver, trustee in bankruptcy, trustee or successor of any of the foregoing, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this state.

(a) Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work.

(b) All individuals performing services within this state for any employing unit which maintains two or more separate establishments within . this state shall be deemed to be performing services for a single employing unit for all the purposes of this chapter.

(c) Any person who is an officer of a corporation and · who performs services for such corporation within this state, whether or not such services are continuous, shall be deemed an employee of the corporation during all of each. week of his tenure of office, regardless of whether or not he is compensated for such services. Services shall be presumed to have been rendered the corporation in cases where such officer is compensated by other than dividends upon shares of stock of such corporation owned by him.

(7) "Employer" means: (a) Any employing unit which, after December

31, 1971: 1. In any calendar quarter in either the current

or preceding calendar year paid for service in employment wages of $1500 or more; or

2. For any portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, had in employment at least one individual (irrespective of whether the same individual was in employment in each such day).

(b) Any employing unit for which service in employment, as defined in subsection (5)(b), is performed, except as provided in paragraph (e) of this subsection.

(c) Any employing unit for which service in employment, as defined in subsection (5Xc), is performed after December 31, 1971, except as provided in paragraph (e) of this subsection.

(d)1. Any employing unit for which agricultural labor, as defined in paragraph (5)(n), is performed after December 31, 1977.

2. Any employing unit for which domestic service in employment, as defined in paragraph (5)(o), is performed after December 31, 1977.

(e)l. In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under paragraph (a), (b), (c), or (d)l. ofthis subsection, the wages earned or the employment of an employee performing domestic service after December 31, 1977, shall not be taken into account.

2. In determining whether or not an employing unit for which service other than agricultural labor

is also performed is an employer under paragraph (a), (b), (c), or (d)2. of this subsection, the wages earned or the employment of an employee performing service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined to be an employer of agriculturallabor, the employing unit shall be determined an employer for the purposes of paragraph (a) of this subsection.

(f) Any individual or employing unit which acquired the organization, trade, or business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter or which acquired a part ofthe organization, trade, or business of another which at the time of such acquisition was an employer subject to this chapter, provided such other would have been an employer under paragraph (a) ofthis subsection if such part had constituted its entire organization, trade, or business.

(g) Any individual or employing unit which acquired the organization, trade, or business, or substantially all the assets thereof, of another employing unit, if the employment record of the predecessor prior to such acquisition together with the employment record of such individual or employing unit subsequent to such acquisition, both within the same calendar year, would be sufficient to render an employing unit subject to this chapter as an employer under paragraph (a) of this subsection.

(h) Any employing unit not an employer by reason of any other paragraph of this subsection:

1. For which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund.

2. Which, . as a condition for approval of this chapter for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required pursuant to such act, to be an "employer" under this chapter.

(i) Any employing unit which has become an employer under paragraphs (a), (b), (c), (d), (e), (f), (g), or (h) of this subsection, and has not ceased to be an employer subject to this chapter, as provided in s. 443.09.

(j) For the effective period of its election, any other employing unit which has elected to become subject to this chapter.

(k) Any employing unit which fails to keep the records of employment required by this chapter and by the regulations of the division shall be presumed to be an employer liable for the payment of contributions pursuant to the provisions of this chapter, regardless of the number of individuals employed by such employing unit. However, the division shall make written demand that such employing unit keep and maintain required payroll records, and such demand shall have been made not less than 6 months before assessing contributions against any employing unit determined to have become an "em-

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player" solely by reason of this paragraph.

For purposes ofthis subsection, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed 1 calendar week, and the days beginning January 1, another such week.

(8) "Fund" means the Unemployment Compensation Trust Fund created by this chapter, to which all contributions required and from which all benefits provided under this chapter shall be paid.

(9) "Contributions" means the money payments to the Unemployment Compensation Trust Fund, required by this chapter.

(10) "Employment office" means a free public employment office or branch thereof operated by this or any other state as a part of a state-controlled system of public employmE-nt offices or by a federal agency charged with the administration of an unemployment compensation program or free public employment offices.

(11) "State" includes the states of the United States, the District of Columbia, Canada, the Commonwealth of Puerto Rico, and, effective 1 day after the United States Secretary of Labor approves the unemployment compensation law of the Virgin Islands for the first time under s. 3304(a) of the Internal Revenue Code of 1954, the Virgin Islands.

(12) "Unemployment": (a) An individual shall be deemed "totally unem

ployed" in any week during which he performs no services and with respect to which no wages are payable to him, or "partially unemployed" in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount. The '[division] shall prescribe regulations applicable to unemployed individuals making such distinctions in the procedures as· to total unemployment, part-time unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the '[division] deems necessary.

(b) An individual's week of unemployment shall be deemed to commence only after his registration at an employment office, except as the ' [division] may by regulations otherwise prescribe.

(13) "Wages": (a) "Wages" means all remuneration paid for

services from whatever source, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the '[division].

(b) The term "wages" shall not include: 1. That part of remuneration which, after remu

neration equal to $4,200 prior to January 1, 1978, and $6,000 after December 31, 1977, has been paid in a calendar year to an individual by an employer or his predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year, unless that part of the remuneration is subject to a tax, under a federal law imposing the tax, against which credit may be taken for contributions required to be paid

into a state unemployment fund. For the purposes of this subsection, the term "employment" shall includ.e services constituting employment under any employment security law of another state or of the Federal Government.

2. The amount of any payment, with respect to services performed, to, or on behalf of, an individual in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any such payment), on account of:

a. Retirement. b. Sickness or accident disability. c. Medical and hospitalization expenses in con

nection with sickness or accident disability. d. Death, provided the individual in its employ: (l) Has not the option to receive, instead of provi

sion for such death benefit, any part of such payment or, if such death benefit is insured, any part of the premiums (or contributions to premiums) paid by his employing unit; and

(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit or to receive cash consideration in lieu of such benefit either upon his withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of his services with such employing unit.

3. The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax imposed upon an individual in its employ under s. 3101 of the Federal Internal Revenue Code with respect to services performed after June 30, 1941.

(14) "Week" means such period of 7 consecutive days as the '[division] may by regulation prescribe. The '[division] may by regulation prescribe that a week shall be deemed to be " in," "within," or "during," that benefit year which includes the greater part of such week.

(15) "Insured work" means employment for employers.

(16)(a) 2["Board" means the Board of Review of the Department of Commerce.]

(b) "Division" means the Division of Employment Security of the Department of Commerce.

(17) "Educational institution" means an institution (except an institution of higher education as defined in paragraph (5)(b)):

(a) In which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes, or abilities from, by, or under the guidance of, an instructor or teacher;

(b) Which is approved, licensed, or issued a permit to operate as a school by the Department of Education or other government agency that is authorized within the state to approve, license, or issue a permit for the operation of a school; a nd

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(c) Which offers courses of study or training which are academic, technical, trade, or preparation for gainful employment in a recognized occupation.

History.-s. 3, ch. 18402, 1937; s. 1, ch. 19637, 1939; CGL 1940 Supp. 4151(490); s. 3, ch. 20685, 1941; s. 1, ch. 21983, 1943; s. 7, ch. 22858; 1945; s. 1, ch. 24085, 1947; s. 10, ch. 26484, 1951; s . 1, ch. 26878, 1951; ss. 1, 2, ch. 26879, 1951; ss. 1, 2, ch. 28242, 1953; ss. 1, 2, chs. 29771, 29772, 1955; ss. 1-3, ch. 57-228; ss. 1, 2, ch. 61-228; s. 2, ch. 61-119; s. 1, ch. 61-132; s. 1, ch. 63-56; ss. 1, 2, ch. 63-155; s. 1, ch. 65-196; ss. 17, 35, ch. 69-106; ss. 1-3, ch. 71-225; s. 1, ch. 71-226; s. 165, ch. 71-377; s. 2, ch. 73-283; s.117, ch. 73-333; s. 1, ch. 74-198; s.1, ch. 75-39; s. 19, ch. 77-121; s. 1, ch. 77-262; s. 1, ch. 77-393; s. 1, ch. 77-399.

'Note.-Bracketed word substituted by the editors for the word "commission" in order to conform to ch. 69-106, the Reorganization Act of 1969. See ss. 17(4) and (8). The bracketed substitution reflects the fact that administrative functions formerly attributed to the Florida Industrial Commission are now performed by the division. 'Note.-Bracketed words substituted by the editors for a definition of the

Industrial Relations Commission to conform to ch. 77-399, which created the Board of Review and vested in it appellate review of all unemployment matters.

443.04 Payment of benefits.-(1) MANNER OF PAYMENT.-On and after

January 1, 1939, benefits shall become payable from the fund. All benefits shall be paid through claims offices in accordance with such regulations as the division may prescribe. However, each claimant shall report in person to a claims office to certify for benefits which are paid and shall continue to report at least biweekly to receive unemployment benefits and to attest to the fact that he is able and available for work, has not refused suitable work, is seeking work, and, if he has worked, to report earnings from such work, except in a case in which he has returned to work, in which case the last benefits check can be mailed on request of the claimant. The mailing of unemployment benefits to a claimant is specifically prohibited, except as provided in this subsection and in cases of interstate claims and checks claimants do not pick up on a designated day from the claims office. In accordance with rules promulgated under chapter 120, the division shall prescribe the criteria and procedures for mailing checks to claimants who fail to pick them up on the designated day from the claims office. Nothing in this subsection shall be construed to prohibit the division from instituting experimental and limited projects whereby claims checks are mailed; however, the division shall not implement such projects on a statewide basis until a report has been made to the Legislature, and the Legislature has approved such implementation.

(2) WEEKLY BENEFIT AMOUNT.-(a) An individual's "weekly benefit amount"

shall be an amount equal to one-half of his average weekly wages, but not less than $10 or more than $82. Such weekly benefit amount, if not a multiple of $1, shall be rounded off to the next higher multiple of $1.

(b) The average weekly wages of such individual shall be computed by dividing his total base period wages by the number of weeks in such base period in which he was paid wages for insured work. However, any individual shall be deemed to have been paid wages in the total number of weeks in his base period indicated in the reports submitted to the division by his base period employers but not more than 13 weeks in any calendar quarter.

(c) The provisions of this subsection as herein amended apply only to benefit years beginning on and after July 1, 1975; provided, that no individual currently eligible for benefits shall be redetermined ineligible pursuant to this section.

(3) WEEKLY BENEFIT FOR UNEMPLOYMENT.-

(a) Total.-Each eligible individual who is totally unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit amount.

(b) Partial.-Each eligible individual who is partially unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit less that part ofthe wages (if any) payable to him with respect to such week which is in excess of $5. Such benefits, if not a multiple of $1, shall be computed to the next higher multiple of $1.

(4) DURATION OF BENEFITS.-(a)l. Any otherwise eligible individual shall be

entitled during any benefit year to a total amount of benefits equal to the product of his weekly benefit amount and one-half the number of weeks in his base period in which he was paid wages for insured work; provided, that such total amount ofbenefits, if not a multiple of $1 shall be rounded off to the next higher multiple of $1.

2. For the purposes of this subsection, wages shall be counted as "wages for insured work" for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the employing unit by whom such wages were paid has satisfied the conditions of this chapter with respect to becoming an employer.

3. The provisions of this subsection as herein amended apply only to the benefit years beginning after June 30, 1960.

(b) If the remuneration of an individual is not based upon a fixed period or duration of time or if the individual's wages are paid at irregular intervals or in such manner as not to extend regularly over the period of employment, the wages for any week or for any calendar quarter for the purpose of computing an individual's right to employment benefits only shall be determined in such manner as may by regulations be prescribed. Such regulations, so far as possible, secure results reasonably similar to those which would prevail if the individual were paid his wages at regular intervals.

(5) EXTENDED BENEFITS.-(a) Definitions.-As used in this subsection, un

less the context clearly requires otherwise: 1. "Extended benefit period" means a period

which: a . Begins with the third week after whichever of

the following weeks occurs first: (I) A week for which there is a national "on"

indicator; or (II) A week for which there is a state "on" indica

tor; and b. Ends with either of the following weeks

whichever occurs later: ' (I) The third week after the first week for which

there is both a national "off' indicator and a state "off' indicator; or

(II) The 13th consecutive week of such period.

However, no extended benefit period may begin by reason of a state "on" indicator before the 14th week following the end of a prior extended benefit period which was in effect with respect to this state, and no

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extended benefit period may become effective in this state prior to January 1, 1972.

2. With respect to weeks beginning after December 31, 1976, there is a "national 'on' indicator" for a week if, for the period consisting of such week and the 12 weeks immediately preceding it, the rate of insured unemployment (seasonally adjusted) for all states equaled or exceeded 4.5 percent. The rate of insured unemployment, for the purposes of this subparagraph, shall be determined by the United States Secretary of Labor by reference to the average monthly covered employment for the first 4 of the most recent 6 calendar quarters ending before the close of such period.

3. With respect to weeks beginning after December 31, 1976, there is a "national 'off indicator" for a week if, for the period consisting of such week and the 12 weeks immediately preceding it, the rate of insured unemployment (seasonally adjusted) for all states was less than 4.5 percent. The rate of insured unemployment, for the purposes of this subparagraph, shall be determined by the United States Secretary of Labor by reference to the average monthly covered employment for the first 4 of the most recent 6 calendar quarters ending before the close of such period.

4. There is a "state 'on' indicator" for a week if the rate of insured unemployment (not seasonally adjusted) under the state law, for the period consisting of such week and the 12 weeks immediately preceding it:

a. Equaled or exceeded 120 percent of the average of such rates for the corresponding 13-week period ending in each of the preceding 2 calendar years; and

b. Equaled or exceeded 4 percent.

With respect to benefits for weeks of unemployment beginning after July 1, 1977, the determination of whether there has been a state "on" or "off' indicator beginning or ending any extended benefit period shall be made under this paragraph as if subparagraph 4. did not contain sub-subparagraph a. thereof and the figure "4" contained in sub-subparagraph b. thereof were "5"; except that, notwithstanding any provision of this paragraph, any week for which there would otherwise be a state "on" indicator shall continue to be such a week and shall not be determined to be a week for which there is a state "off' indicator.

5. There is a "state 'off indicator" for a week if, for the period consisting of such week and the immediately preceding 12 weeks, either sub-subparagraph a. or b. of subparagraph 4. was not satisfied.

6. "Rate of insured unemployment," for purposes of subparagraphs 4. and 5. of this paragraph, means the percentage derived by dividing the average weekly number of individuals filing claims in this state for weeks of unemployment with respect to the most recent 13-consecutive-week period, as determined by the division on the basis of its reports to the United States Secretary of Labor, by the average monthly employment covered under this chapter for the first 4 of the most recent 6 completed calendar quarters ending before the end of such 13-week period.

7. "Regular benefits" means benefits payable to an individual under this chapter or under any other state law, including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85, other than extended benefits.

8. "Extended benefits" means benefits, including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85, payable to an individual under the provisions of this subsection for weeks of unemployment in his eligibility period.

9. "Eligibility period" of an individual means the period consisting of the weeks in his benefit year which begin in an extended benefit period and, ifhis benefit year ends within such extended benefit period, any weeks thereafter which begin in such period.

10. "Exhaustee" means an individual who, with respect to any week of unemployment in his eligibility period:

a. Has received, prior to such week, all of the regular benefits that were available to him under this chapter or any other state law, including dependents' allowances and benefits payable to federal civilian employees and ex-servicemen under 5 U.S.C. chapter 85, in his current benefit year that includes such week. For the purposes of this subparagraph, an individual shall be deemed to have received all of the regular benefits that were available to him although as a result of a pending appeal with respect to wages paid for insured work that were not considered in the original monetary determination in his benefit year, he may subsequently be determined to be entitled to added regular benefits.

b. His benefit year having expired prior to such week, has . been paid no, or insufficient, wages for insured work on the basis of which he could establish a new benefit year that would include such week; and

c.(l) Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, the Trade Expansion Act of 1962, the Automotive Products Trade Act of 1965 '[or] such other federal laws as are specified in regulations issued by the United States Secretary of Labor; and

(II) Has not received and is not seeking unemployment benefits under the unemployment compensation law of the Virgin Islands or of Canada; but if he is seeking such benefits and the appropriate agency finally determines that he is not entitled to benefits under such law, he is considered an exhaustee, except that the reference in this sub-sub-subparagraph to the Virgin Islands shall be inapplicable effective on the day after the day on which the United States Secretary of Labor approves, under s. 3304(a) of the Internal Revenue Code of 1954, an unemployment compensation law submitted to the secretary by the Virgin Islands for approval.

11. "State law" means the unemployment insurance law of any state, approved by the United States Secretary of Labor under s. 3304 of the Internal Revenue Code of 1954.

(b) Effect of state law provisions relating to regular benefits on claims for, and the payment of, extended benefits.-Except when the result would be inconsistent with the other provisions of this subsection,

125


as provided in the regulations of the divisi_on, the provisions of this chapter which apply to clmms for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits. Such extended benefits shall be charged to the experience rating accounts of employers to the extent the share of such extended benefits paid from this state's unemployment compensation trust fund is not eligible for reimbursement from federal sources.

(c) Eligibility requirements for extended benefits. -An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period only if the division finds that with respect to such week:

1. He is an "exhaustee" as defined in paragraph (a)lO.

2. He has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits.

(d) Weekly extended benefit amount.-The weekly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be an amount equal to the weekly benefit amount payable to him during his applicable benefit year. For any individual who was paid benefits during the applicable benefit year in accordance with more than 1 weekly benefit amount, the weekly extended benefit amount shall be the average of such weekly benefit amounts.

(e) Total extended benefit amount.-The total extended benefit amount payable to any eligible individual with respect to his applicable benefit year shall be the least of the following amounts:

1. Fifty percent of the total amount of regular benefits which were payable to him under this chapter in his applicable benefit year; or

2. Thirteen times his weekly benefit amount which was payable to him under this chapter for a week of total unemployment in the applicable benefit year.

(f) Beginning and termination of extended benefit period.-Whenever an extended benefit period is to become effective in this state (or in all states) as a result of a state or a national "on" indicator, or an extended benefit period is to be terminated in this state as a result of state and national "off' indicators, the division shall make an appropriate public announcement.

(g) Computations.-Computations required by the provisions of paragraph (a)6. shall be made by the division, in accordance with regulations prescribed by the United States Secretary of Labor.

History.-s. 4, ch. 18402, 1937; s. 2, ch. 19637, 1939; CGL 1940 Supp. 4151(491); s. 4, ch. 20685, 1941; s. 2, ch. 21983, 1943; s. 1, ch. 23919, 1947; ss. 1-3, ch. 26801, 1951; s. 1, ch. 29695, 1955; s. 1, ch. 57-247; s. 1, ch. 57-795; ss. 1, 2, ch. 59-55; s. 1, ch. 61-173; s. 1, ch. 67-250; ss. 17, 35, ch. 69-106; ss. 1-3, ch. 70-166; s. 4, ch. 71-225; s. 1, ch. 71-247; s. 1, ch. 72-155; s. 2, ch. 74-198; s. 1, ch. 75-121; s. 2, ch. 77-262; s. 2, ch. 77-399.

1Note.-Bracketed word inserted for "and" by the editors.

443.05 Benefit eligibility conditions.-(!) An unemployed individual shall be eligible to

receive benefits with respect to any week only as the division finds that:

(a) He has made a claim for benefits with respect to such week in accordance with such regulations as the 2[division] may prescribe.

(b) He has registered for work at, and thereafter continued to report at the division, which shall be responsible for notification of the Florida State Employment Service in accordance with such regulations as the division may prescribe; except that the division may, by regulation not inconsistent with the purposes of this law, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs; but no such regulation shall conflict with s. 443.04(1).

(c)l. He is able to work and is available for work. 2. Notwithstanding any other provisions in this

section, no otherwise eligible individual shall be denied benefits for any week because he is in training with the approval of the division, nor shall such individual be denied benefits with respect to any week in which he is in training with the approval of the division by reason of the application of provisions in subparagraph 1. of this paragraph relating to availability for work, or the provisions ofs. 443.06(2) relating to failure to apply for, or a refusal to accept, suitable work.

(d) He has been unemployed for a waiting period of 1 week. No week shall be counted as a week of unemployment for the purposes of this subsection:

1. Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits.

2. If benefits have been paid with respect thereto.

3. Unless the individual was eligible for benefits with respect thereto as provided in this section and s. 443.06 except for the requirements of this subsection and of s. 443.06(5).

(e) He has been paid wages for insured work equal to 20 times his average weekly wages during his base period or, for claims filed on or after July 1, 1977, but prior to November 30, 1977, he has been paid wages for insured work equal to 10 times his average weekly wages during his base period, except that no unemployed individual shall be eligible to receive benefits if his average weekly wage is less than $20.

(2) No individual may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed service, whether or not in "employment" as defined in s. 443.03(5), and earned remuneration for such service in an amount equal to not less than 3 times his weekly benefit amount as determined for his current benefit year.

'(3) Benefits based on service in employment defined in s. 443.03(5)(b) and (c) shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that:

(a) With respect to services performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution or an institution of higher education, and with respect to services performed prior to January 1, 1978, in an instructional, research, or principal administrative capacity for an institution of higher education, benefits shall not be paid based on such services for any week of unemployment commencing during the period between 2 successive academic

126

UNEMPLOYMENT COMPENSATION LAW Ch. 443

years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual, if such individual performs such services in the first of such academic years or terms, and there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution or institution of higher education in the second of such academic years or terms.

(b) With respect to services performed after December 31, 1977, in any other capacity for an educational institution (other than an institution ofhigher education as defined in s. 443.03(5)(b)), benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between 2 successive academic years or terms if such individual performs such services in the first of the academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of the academic years or terms.

(4) In the event of national emergency, in the course of which the Federal Emergency Unemployment Payment Plan is, at the request of the Governor, invoked for all or any part of the state, such plan shall supersede the procedures prescribed by this chapter, and by regulations thereunder, and the division shall act as the Florida agency for the United States Department of Labor in the administration of such plan.

'(5) Benefits shall not be paid to any individual on the basis of any service, substantially all of which consists of participating in sports or athletic events or training, or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such service in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).

'(6) With respect to weeks of unemployment be~"'u'-•u~ on or after January 1, 1978, wages for in-

k shall include wages paid for previously """n'lT"''""'tl services. For the purposes of this subsec

except to the extent that assistance under Title the Emergency Jobs and Unemployment Assis

Act of 197 4 was paid on the basis of such ser-the term "previously uncovered services"

means services: Which were not employment as defined in this

prior to January 1, 1978, and were not sercovered pursuant to subsection 443.09(3) at any during the 1-year period ending December 31, and Which are: Agricultural labor or domestic service as dein subsection 443.03(5); or Services by an employee of this

subdivision thereof, as provided in (b) of subsection 443.03(5), or by an emnnn .. ,•t>t educational institution which is

of higher education, as provided in subsed;ion 443.03(5).

Benefits paid to any individual whose base

period wages include wages for previously uncovered services, as defined in subsection (6), shall not be charged to the employer or the employer's experience rating account, to the extent that such individual would not have been eligible to receive such compensation had the state not provided for payment of compensation on the basis of such previously uncovered services, and provided benefits shall be paid for such previously uncovered service only to the extent that the division determines the unemployment compensation fund may be reimbursed for such benefits pursuant to s. 121 of P. L. 94-566.

History.-<!. 5, ch. 18402, 1937; s. 3, ch. 19637, 1939; CGL 1940 Supp. 4151(492); s. 5, ch. 20685, 1941; s. 3, ch. 21983, 1943; s. 3, ch. 26879, 1951; s. 3, ch. 29771, 1955; s. 2, ch. 57-247; s. 3, ch. 59-55; s. 2, ch. 61-132; ss. 17, 35, ch. 69-106; s. 5, ch. 71-225; s. 2, ch. 75-39; s. 3, ch. 77-262; s. 3, ch. 77-399; s. 1, ch. 77-420.

'Note.-Subsection (3), as amended, and subsections (5)-(7), as created by ch. 77-262, effective January 1, 1978. 'Note.-See note 1 following s. 443.03.

443.06 Disqualification for benefits.-An individual shall be disqualified for benefits:

(1) For the week in which he has voluntarily left his employment without good cause attributable to his employer or in which he has been discharged by his employing unit for misconduct connected with his work, if so found by the division.

(a) Disqualification for voluntarily quitting shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without good cause and until such individual has become reemployed and has earned wages equal to or in excess of 10 times his weekly benefit amount; good cause as used in this subsection shall include only such cause as is attributable to the employer or consists of illness or disability of the individual requiring separation from his employment. An individual shall not be disqualified under this subsection for voluntarily leaving temporary employment to return immediately when called to employment by the permanent employer who temporarily terminated his employment within the previous 6 calendar months.

(b) Disqualification for being discharged for misconduct connected with his work shall continue for the full period of unemployment next ensuing after having been discharged and until such individual has become reemployed and has earned wages not less than 10 times his weekly benefit amount and for not more than 52 weeks which immediately follow such week, as determined by the division in each case according to the circumstances in each case or the seriousness of the misconduct, pursuant to rules of the division enacted for determinations of disqualification '[for] benefits for misconduct.

(2) If the division finds that the individual has failed without good cause either to apply for available suitable work with the division or to accept suitable work when offered to him by an employment office, the division, or an employing unit or to return to his customary self-employment when so directed by the division, such disqualification shall continue for the week in which such failure occurred and for not more than 5 weeks immediately following such week, or a reduction by not more than 3 weeks from the duration of benefits, as determined by the division in each case. However, disqualification under this subsection shall continue for the full period of

127


unemployment next ensuing after he has failed without good cause either to apply for available suitable work, or to accept suitable work, or to return to his customary self-employment, pursuant to this subsection, and until such individual has become reemployed and has earned wages equal to or in excess of 10 times his weekly benefit amount. The division shall by rule provide criteria for determining the suitability of work, as used in this section; however, the duration of a claimant's unemployment shall be considered in determining the suitability of work, including the suitability of proposed rates of compensation for available work. Further, suitable work shall be a job which pays the minimum wage and is 120 percent or more of the weekly benefit amount the individual is drawing after the individual has exhausted his regular benefits.

(a) In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.

(b) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

1. Ifthe position offered is vacant due directly to a strike, lockout, or other labor dispute;

2. If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;

3. If as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

(3) For any week with respect to which he is receiving or has received remuneration in the form of:

(a) Wages in lieu of notice; (b)l. Compensation for temporary partial disa

bility, temporary total disability or permanent total disability under the workmen's compensation law of any state or under a similar law of the United States.

2. Provided, that if the remuneration referred to in paragraphs (a) and (b) of this subsection is less than the benefits which would otherwise be due under this chapter, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.

(4) For any week with respect to which the division finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satisfaction of the division that:

(a) He is not participating in or financing, or directly interested in the labor dispute which is in active progress; provided, however, that the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this section; and

(b) He does not belong to a grade or class of workers of which immediately before the commencement of the labor dispute there were members employed at the premises at which the labor dispute occurs any of whom are participating in, or financing, or directly interested in the dispute; provided, that if in any case separate branches of work which are commonly conducted as separate businesses in separate premises, or are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection be deemed to be a separate factory, establishment or other premises.

(5) For any week with respect to which or a part of which he has received or is seeking unemployment benefits under an unemployment compensation law of another state or ofthe United States; for the purposes of this subsection, an unemployment compensation law of the United States is any law of the United States which provides for payment of any type and in any amounts for periods of unemployment due to lack of work; provided, that if the appropriate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, this disqualification shall not apply.

(6) For a period of not to exceed 1 year from the date of the discovery by the division of the making of any false or fraudulent representation for the purpose of obtaining benefits contrary to the provisions of this chapter, constituting a violation within the intent of s. 443.22 hereof; provided, that any such disqualification may be appealed from in the same manner as from any other disqualification imposed hereunder; and provided further that a conviction by any court of competent jurisdiction in this state of the offense prohibited or punished by s. 443.22 herein shall be conclusive upon the appeals referee and the 2[board] of the making of such false or fraudulent representation for which disqualification is imposed hereunder. .

"(7) If the division finds that the individual is an alien, unless such alien is an individual who has been lawfully admitted for permanent residence or otherwise is permanently residing in the United States under color of law (including an alien who is lawfully present in the United States as a result of the application of the provisions of s. 203(a)(7) or s. 212(d)(5) of the Immigration and Nationality Act), provided that any modifications to the provisions of s. 3304(a)(14) of the Federal Unemployment Tax Act, as provided by Public Law 94-566, which specify other conditions or other effective dates than those stated herein for the denial of benefits based on services performed by aliens, and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be deemed applicable under the provisions of this sec-tion, provided: .

(a) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits; and

(b) In the case of an individual whose application for benefits would otherwise be approved, no deter-

128


mination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.

(c) If the division finds that said individual has refused without good cause an offer of resettlement or relocation, which offer provides for suitable employment for such individual notwithstanding the distance of such relocation, resettlement, or employment from the current location of such individual in this state, such disqualification shall continue for the week in which such failure occurred and for not more than 10 weeks immediately following such week, or a reduction by not more than 5 weeks from the duration of benefits, as determined by the division in each case.

(8) For any week with respect to which he has received, or is eligible to receive, from a base period employing unit, benefits from a retirement, pension, or annuity program embodied in a union contract or either a public or private employee benefit program, notwithstanding that the source of the contribution of any moneys to the respective program was the employer or employee or both. However, for any week in which benefits from a retirement, pension, or annuity program as referred to in this subsection are less than the weekly benefits which would otherwise be due under this chapter, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by _the benefits from the retirement, pension, or annuity program, prorated to a weekly basis. For the purpose of this subsection, benefits from the United States Social Security Act, a disability benefit program, a supplemental unemployment benefit program, or any other program not specifically designated either in the union contract or a company benefit program as being retirement, pension, or annuity benefits shall not be disqualifying. For the purposes of this subsection, the term base period employing unit shall not include any branch of the United States Armed Forces.

(9) For purposes of this section, misconduct includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards ofbehavior which the employer has the right to expect of his employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

History.-s. 6, ch. 18402, 1937; s. 4, ch. 19637, 1939; CGL 1940 Supp. 4151(493); s. 6, ch. 20685, 1941; s. 4, ch. 21983, 1943; s. 1, ch. 24083, 1947; s. 3, ch. 28242, 1953; s. 1, ch. 63-327;s. 1, ch. 63-157; s. 1, ch. 65-45; s. 1, ch. 65-114; s. 1, ch. 65-115; s. 1, ch. 65-244; s. 1, ch. 65-411; ss. 17; 35, ch. 69-106; s. 1, ch. 72-190; s. 4, ch. 77-262; s. 4, ch. 77-399; s. 1, ch. 77-424.

'Note.-Bracketed word substituted for "of' by the editors. 2 Note.-Bracketed word substituted by the editors for the word ~~commis

sion. " See ch. 77.399 creating a board of review and vesting it with the appellate duties relating to unemployment compensation.

3 Note.-As amended, effective J anuary 1, 1978.

443.07 Procedure concerning claims.-(1) POSTING OF INFORMATION.-Each em

ployer shall post and maintain in places readily accessible to individuals in his employ printed state-

ments concerning benefit rights, claims for benefits and such other matters relating to the administration of this chapter as the '[division] may by regulation prescribe. Each employer shall supply to such individuals copies of such printed statements or other materials relating to claims for benefits when and as the '[division] may by regulations prescribe. Such printed statements and other materials shall be supplied by the division to each employer without cost to the employer.

(2) FILING OF CLAIM.-Claims for benefits shall be made in accordance with such regulations as the '[division] may prescribe.

(3) DETERMINATION.-(a) In general.-An initial determination upon a

claim filed pursuant to subsection (2) shall be made promptly by an examiner designated by the division and shall include a statement as to whether and in what amount claimant is entitled to benefits and, in the event of a denial, shall state the reasons therefor. A determination with respect to the first week of a benefit year shall also include a statement as to whether the claimant has been paid the wages required under s. 443.05(1)(e), and if so, the first day of the benefit year, his weekly benefit amount, and the maximum total amount of benefits payable to him with respect to a benefit year. The claimant, his most recent employing unit, and all employers whose accounts would be charged with benefits pursuant to such determination, shall be promptly notified of such initial determination, and such determination shall be final unless within 10 days after the mailing of such notices to the parties' last known addresses, or in the absence of such mailing, within 10 days after the delivery of such notice, appeal or written request for reconsideration is filed by the claimant or other party entitled to such notice.

(b) Determinations in labor dispute cases.Whenever any claim involves the application of the provisions ofs. 443.06(4), the examiner handling the claim shall, ifso directed by the division, promptly transmit such claim to a special examiner designated by the division to make a determination upon the issues involved under that subsection or upon such claims. Such special examiner shall make the determination thereon after such investigation as he deems necessary, and after affording the parties entitled to notice an opportunity for a fair hearing in accordance with the provisions of this section with respect to hearings and determinations of appeals referees. The parties shall be promptly notified of the determination, together with the reason therefor, and such determination shall be deemed to be the final decision on the claim, unless within 10 days after the mailing of notices to the parties' last known addresses, or, in the absence of such mailing, within 10 days after the delivery of such notice, appeal is filed with the 2[board] or notice of review is entered by that body.

(c) Redeterminations.-!. The division may reconsider a determination

whenever it finds that an error has occurred in connection therewith, or whenever new evidence or information pertinent to such determination has been discovered subsequent to any previous determination or redetermination. No such redetermination

129


shall be made after 1 year from the date the claim was filed, unless it appears that the disqualification imposed by s. 443.06(6) is applicable, in which case the redetermination may be made at any time within 2 years from the date of the making of such false or fraudulent representation. Notice of redetermination shall be promptly given to the claimant and to any employers entitled to notice thereof in the manner prescribed in this section with respect to notice of an initial determination. If the amount of benefits is increased upon such redetermination an appeal therefrom solely with respect to the matters involved in such increase may be filed in the manner and subject to the limitations provided in subsection (4) of this section. If the amount of benefits is decreased upon such redetermination, the matters involved in such decrease shall be subject to review in connection with an appeal by claimant from any determination upon a subsequent claim for benefits which may be affected in amount or duration by such redetermination. Subject to the same limitations and for the same reasons, the division may reconsider its determination in any case in which the final decision has been rendered by an appeals referee, the 2[board], or a court, and may apply to the body or court which rendered such final decision to issue a revised decision.

2. In the event that an appeal involving an original determination is pending as of the date a redetermination thereof is issued, such appeal unless withdrawn, shall be treated as an appeal from such redetermination.

(d ) Notice of determination or redetermination pursuant to s. 443.06.-Notice of any determination or redetermination which involves the application of the provisions ofs. 443.06, together with the reasons therefor, shall be promptly given to the claimant and to any employer entitled to notice thereof, such notice to be given in the manner provided in subsection (3) hereof, provided that the 1[division] shall by regulation prescribe the manner and procedure pursuant to which employers within the base period of a claimant may become entitled to such notice.

(4) APPEALS.(a) Appeals referees.-The division shall appoint

one or more impartial salaried appeals referees selected in accordance with s. 443.12(4) to hear and decide appealed or disputed claims. Such appeals referees shall have such qualifications as may be established by the merit system council upon the advice and consent of the division. No person shall participate on behalf of the division as an appeals referee in any case in which he is an interested party. The division may designate alternates to serve in the absence or disqualification of any appeals referee upon a temporary basis and pro hac vice which alternate shall be possessed of the same qualifications required of appeals referees. The division shall provide the 2[board] and the appeals referees with proper facilities and assistance for the execution of their functions.

(b) Filing and hearing.-1. The claimant or any other party entitled to

notice of a determination as herein provided, may file an appeal from such determination with an appeals referee within 10 days after the date of mailing

of the notice to his last known address or if such notice is not mailed, within 10 days after the date of delivery of such notice.

2. Unless the appeal is withdrawn with his permission or is removed to the 2[board], the appeals referee, after affording the parties reasonable opportunity for a fair hearing, shall make findings and conclusions and on the basis thereof affirm, modify, or reverse such determination; provided, however, that whenever an appeal involves a question as to whether services were performed by claimant in employment or for an employer, the referee shall give special notice of such issue and of the pendency of the appeal to the employing unit and to the division, both of whom shall thenceforth be parties to the proceeding and be afforded reasonable opportunity to adduce evidence bearing on such question. .

3. The parties shall be promptly notified of such referee's decision and shall be furnished with a copy of the decision and the findings and conclusions in support thereof and such decisions shall be final unless, within 10 days after the date of mailing of notice thereof to the party's last known address, or in the absence of such mailing, within 10 days after the delivery of such notice, further review is initiated pursuant to paragraph (c).

(c) Review by 2{boardj-The 2[board] may, on its own motion, within the time specified in paragraph (b), initiate a review of the decision of an appeals referee or determination of a special examiner or may allow an appeal from such decision on application filed within such time by any party entitled to notice of such decision. An appeal filed by any such party shall be allowed as of right if the examiner's determination was not affirmed by the appeals referee. Upon review on its own motion or upon appeal, the 2[board] may on the basis of the ·evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeals referee. The 2[board] may remove to itself or transfer to another appeals referee the proceedings on any claim pending before an appeals referee. Any proceeding so removed to the 2[board] prior to the completion of a fair hearing shall be heard by the 2[board] in accordance with the requirement of this subsection with respect to proceedings before an appeals referee. The 2[board] shall promptly notify the parties to any proceeding before it of its decision, including its findings and conclusions in support thereof, and such decision shall be final unless within the time prescribed by Florida Appellate Rules a proceeding for judicial review is initiated pursuant to paragraph (e); provided, however, that upon denial by the 2[board] of an application for appeal from the decision of an appeals referee, the decision of the appeals referee shall be deemed to be a decision of the 2[board] within the meaning of this paragraph for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decisions of the 2[board], except that the time for initiating such review shall run from the date of notice of the order of the 2[board] denying the application for appeal.

(d) Procedure.-The manner in which appealed

130


claims shall be presented, and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the 2 [board] for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence or other technical rules of procedure. When the same or substantially similar evidence is relevant and material to the matters in issue in claims by more than one individual or in claims by a single individual with respect to 2 or more weeks of unemployment, the same time and place for considering each such claim may be fixed, hearing thereon jointly conducted, a single record of the proceedings made, and evidence introduced with respect to one proceeding considered as introduced in the others, provided that in the judgment of the examiner or referee having jurisdiction of the proceeding, such consolidation would not be prejudicial to any party. No person shall participate on behalf of the division or 2[board] in any case in which he has a direct or indirect interest. A record shall be kept of all testimony and proceedings before special examiners or in connection with an appeal, but the testimony need not be transcribed unless further review is initiated. Witnesses subpoenaed pursuant to this section shall be allowed fees at a rate fixed by the division, and fees of witnesses subpoenaed on behalf of the division, or any claimant shall be deemed part of the expense of administering this chapter.

(e) Judicial reuiew.-Orders of the 2 [board] entered pursuant to paragraph (c) of this subsection shall be subject to review only by petition for writ of certiorari to the district court of appeal in the appellate district in which the issues involved were decided by an appeals referee and the division shall be made a party respondent to every such proceeding.

(5) PAYMENT OF BENEFITS.-(a) Benefits shall be promptly paid in accordance

with a determination or redetermination regardless of any appeal or pending appeal.

(b) The commencement of a proceeding for judicial review pursuant to subsection (4)(e) of this section shall not operate as a supersedeas or stay unless the 2[board] shall so order, and the filing of a petition for judicial review by the division from a decision of the 2[board] which awarded benefits shall not authorize the 2 [board] or any court to direct the denial of any benefits which would have been payable under the 2[board's] decision. If a determination allowing benefits is affirmed in any amount by an appeals referee, or is so affirmed by the 2[board] or if a decision of an appeals referee, allowing benefits is affirmed in any amount by the 2[board], such benefits shall be promptly paid regardless of any further appeal, and no injunction, supersedeas, stay, or other writ or process suspending the payment of such benefits shall be issued by any court but if such decision is finally reversed, no employer's account shall be charged with benefits so paid pursuant to the erroneous determination and benefits shall not be paid for any subsequent weeks of unemployment involved in such reversal.

(6) RECOVERY AND RECOUPMENT.-(a) Any person who, by reason of his fraud has

received any sum as benefits under this chapter to which he was not entitled shall be liable to repay

such sum to the division for and on behalf of the trust fund, or, in the discretion of the division, to have such sum deducted from future benefits payable to him under this chapter, provided a finding of the existence of such fraud has been made by a redetermination or decision pursuant to this section within 2 years from the commission of such fraud, and provided no such recovery or recoupment of such sum may be effected after 5 years from the date of such redetermination or decision.

(b) If any person, other than by reason of his fraud, has received any sum as benefits under this chapter to which, under a redetermination or decision pursuant to this section, he has been found not entitled, he shall be liable to repay such sum to the division for and on behalfofthe trust fund or, in the discretion of the division, shall have such sum deducted from any future benefits payable to him under this chapter. No such recovery or recoupment of such sum may be effected after 2 years from the date of such redetermination or decision.

(c) No recoupment from future benefits shall be had if such sum was received by such person without fault on his part and such recoupment would defeat the purpose of this chapter or would be against equity and good conscience.

(d) In any case in which under this section a claimant is liable to repay to the division any sum for the fund, such sum shall be collectible without interest by a deduction from benefits pursuant to a redetermination as above provided, or by civil action in the name of the division.

History.- s. 7, ch . 18402, 1937; CGL 1940 Supp. 4151(494); s. 7, ch. 20685, 1941; s. 1, ch. 21982, 1943; s. 2, ch . 24083, 1947; s. 10, ch. 26484, 1951; s. 4, ch. 26879, 1951; s. 4, ch. 28242, 1953; ss. 1-4, ch. 29769, 1955; s. 1, ch. 57-268; s. 3, ch. 61-132; ss. 17, 35, ch. 69-106; s. 1, ch. 70-87; s. 1, ch. 72-154.

'Note.--See note 1 following s. 443.03. ' Note.--See note 2 following s. 443.06.

cf.-s. 1.01 Defines registered mail to include certified mail with return receipt requested.

443.08 Contributions.-(!) WHEN PAY ABLE.-Contributions shall ac

crue and become payable by each employer for each calendar quarter in which he is subject to this chapter, with respect to wages paid during such calendar quarter for employment. Such contributions shall become due and be paid by each employer to the division for the fund, in accordance with such regulations as the '[division] may prescribe. Contributions shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ. In the payment of any contributions, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to 1 cent.

(2) RATES.-Each employer is required to pay contributions equal to the following percentages of wages paid by him with respect to employment:

(a) Each employer whose employment record has been chargeable with benefit payments for less than 12 calendar quarters shall pay contributions at the rate of 2. 7 percent with respect to wages paid on or before December 31, 1971, and at the rate of 1 percent with respect to wages paid on or after January 1, 1972, and at the rate of 2.7 percent with respect to wages paid on or after January 1, 1978, except that no employer whose tax rate is the 1 percent initial rate shall have such ra te increased without

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having the tax rate computed as provided in paragraph 2[(3)(b)].

(b) Each employer whose employment record has been chargeable with benefit payments for at least 12 calendar quarters shall pay contributions at the rate of2.7 percent with respect to employment after December 31, 1937, except as otherwise determined by experience rating provisions of this chapter. For the purposes of this section the total wages on which contributions have been paid by a single employer or his predecessor to an individual in any state within a single calendar year shall be counted to determine whether more remuneration than constitutes "wages" as defined by s. 443.03(13)(b)l. has been paid to such individual by such employer or his predecessor in 1 calendar year.

(c)l. Should the Congress either amend or repeal the Wagner-Peyser Act, the Federal Unemployment Tax Act, the Social Security Act or subtitle C of the Internal Revenue Code, or any act or acts supplemental to or in lieu thereof, or any part or parts of either or all of said laws, or should either or all of said laws, or any part or parts thereof, be held invalid, to the end and with such effect that appropriations offunds by the said Congress and grants thereof to Florida for the payment of costs of administration of the division become no longer available for such purposes, or should employers in Florida subject to the payment of tax under the Federal Unemployment Tax Act be granted full credit upon such a tax for contributions or taxes paid to the unemployment compensation trust fund, then in such case, beginning with the effective date of such change in liability for payment of such federal tax, and for each year thereafter, the standard contribution rate under this chapter shall be 3 percent per annum of each such employer's payroll subject to contributions. With respect to each such employer having a reduced rate of contribution for such year pursuant to terms of subsection (3) hereof, to the rate of contribution, as determined for such year in which such change occurs, shall be added three-tenths of 1 percent.

2. The amount of the excess of tax for which such employer is or may become liable, by reason of this subsection, over the amount which such employer would pay or become liable for except for the provisions of this subsection, shall be paid and transferred into the Employment Security Administration Trust Fund to be disbursed and paid out under the same conditions and for the same purposes as are other moneys provided to be paid into such fund; provided, that if the division shall determine that as of January 1 of any year, there is an excess in said fund over the moneys and funds required to be disbursed therefrom for the purposes thereof for such year, then, and in such cases an amount equal to such excess, as determined by the division, shall be transferred to and become a part of the Unemployment Compensation Trust Fund, and such funds shall be deemed to be and are hereby appropriated for the purposes set out in this chapter.

(d) In the event that the Federal Unemployment Tax Act is amended to permit credit against such tax in excess of2.7 percent with respect to any calendar year, payment ofthe amount of contributions neces-

sary to qualify an employer for such additional credit shall be deemed to be required under this chapter.

(3) CONTRIBUTION RATES BASED ON BENEFIT EXPERIENCE.-

(a) The benefit payments made to any eligible individual shall be charged to the employment record of each employer who paid such individual wages equal to $40 or more within the base period of said individual in the proportion to which wages paid by each such employer to such individual within the base period bears to total wages paid by all such employers to such individual within the base period. Provided, that no benefit charges shall be made to the employment record of any employer who has furnished part-time work to an individual who, because ofloss of employment with one or more other employers, becomes eligible for partial benefits while still being furnished part-time work by such employer on substantially the same basis and in substantially the same amount as has been made available to such worker during his base period, whether the employments were simultaneous or successive. Provided, further, that benefit payments will not be charged to the accounts of employers when such employers have furnished the division with such notices regarding separations of individuals from work and the refusal of individuals to accept offers of suitable work as are required by the provisions of this chapter and the regulations of the 1[division], if one or more ofthe following conditions are found to be applicable:

1. When an individual has left his job without good cause attributable to his employer or has been discharged by his employer for misconduct connected with his work, no benefits subsequently paid to him on the basis of wages paid to such individual by such employer prior to such separation shall be charged to such employer's account.

2. Benefits which are paid to any individual subsequent to the refusal without good cause by such individual of an offer of suitable employment from an employer will not be charged to the account of such employer when all or any part of such benefits are upon the basis of wages paid to such individual by such employer prior to the refusal by such individual to accept such offer of suitable work. (The division shall determine with respect to the payment of all benefits whether this proviso shall be applied without regard to whether a disqualification pursuant to the provisions of s. 443.06 has or may be invoked against a claimant or claimants for benefits.)

(b)l. On and after January 1, 1958, the division shall, notwithstanding the provisions of paragraph (d) of this subsection, compute a benefit ratio for each employer not previously eligible therefor whose unemployment record has been chargeable with benefit payments for at least 12 calendar quarters immediately preceding the calendar quarter for which the benefit ratio is computed. Such employer's benefit ratio shall be the quotient obtained by dividing the total benefit payments chargeable to his employment record during the 12 completed calendar quarters immediately preceding the calendar quarter for which the benefit ratio is computed by the total of his annual payrolls (as defined in paragraph (f) of this subsection) for the first 12 of the 13 com-

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pleted calendar quarters immediately preceding the dar year to employers eligible therefor. In determincalendar quarter for which the benefit ratio is coming the contribution rate, varying from the standard puted. Such benefit ratio shall be computed to the rate to be assigned each employer, adjustment facfifth decimal place, and rounded to the fourth deci- tors provided for in sub-subparagraphs a.-c. will be mal place, and shall be applicable only for the re- added to the benefit ratio. This addition will be acmainder of the calendar year in which it becomes complished in two steps by adding a variable adjusteffective, after which the benefit ratio of such em- ment factor and a final adjustment factor as defined ployer shall be computed as provided in subpara- below. The sum of these adjustment factors provided graph 2. hereof. Variation from the standard rate of for in sub-subparagraphs a.-c. will first be algebraicontribution shall be assigned on a quarterly basis to cally summed. The sum of these adjustment factors such employers eligible therefor in like manner as will then be divided by a gross benefit ratio to be assignments made for a calendar year under para- determined as follows: Total benefit payments for graph (e) of this subsection. the previous 3 calendar years charged to employers

2. The division shall, for each calendar year, eligible to be assigned a contribution rate different compute a benefit ratio for each employer whose from the standard rate minus excess payments for employment record has been chargeable with bene- the same period divided by taxable payroll entering fit payments for at least 3 calendar years immediate- into the computation of individual benefit ratios for ly preceding the calendar year for which the benefit the current calendar year. The ratio of the sum of ratio is computed. An employer's benefit ratio shall the adjustment factors provided for in sub-subparabe the quotient obtained by dividing the total benefit graphs a.-c. to the gross benefit ratio will be multipayments chargeable to his employment record dur- plied by each individual benefit ratio below the maxing the 3-year period ending December 31 of the imum tax rate to obtain variable adjustment factors; preceding calendar year by the total of his annual except that in any instance in which the sum of an payrolls (as defined in paragraph (f) of this subsec- . employer's individual benefit ratio and variable adtion) for the 3-year period ending September 30 of justment factor exceeds the maximum tax rate, the the preceding calendar year. Such benefit ratio shall variable adjustment factor will be reduced so that be computed to the fifth decimal place and rounded the sum equals the maximum tax rate. The variable to the fourth decimal place. adjustment factor of each such employer will be mul-

3. On and after January 1, 1978, the division tiplied by his taxable payroll entering into the comshall compute a benefit ratio for each employer not putation of his benefit ratio. The sum of these prodpreviously eligible therefor whose initial tax rate is ucts will be divided by the taxable payroll of such 2. 7 percent and whose unemployment has been employers that entered into the computation of their chargeable with benefit payments for at least 8 cal- benefit ratios. The resulting ratio will be subtracted endar quarters immediately preceding the calendar from the sum of the adjustment factors provided for quarter for which the benefit ratio is computed. Such in sub-subparagraphs a.-c. to obtain the final adjustemployer's benefit ratio shall be the quotient ob- ment factor. The variable adjustment factors and tained by dividing the total benefit payments the final adjustment factor will be computed to five chargeable to his employment record during the 8 decimal places and rounded to the fourth decimal completed calendar quarters immediately preceding place. This final adjustment factor will be added to the calendar quarter for which the benefit ratio is the variable adjustment factor and benefit ratio of computed by the total of his annual payrolls (as de- each employer and the sum rounded to 3 decimal fined in paragraph (f) of this subsection) for the first places to obtain each employer's contribution rate; 8 of the 9 completed calendar quarters immediately provided that in years when the adjustment factor preceding the calendar quarter for which the benefit provided for in sub-subparagraph c. is negative the ratio is computed. Such benefit ratio shall be com- sum shall not be rounded to 3 decimal places for puted to the fifth decimal place and rounded to the those employers whose sum is less than one-tenth of fourth decimal place and shall be applicable only for 1 percent; provided further that no employer's consuch time as is required to meet the requirements of tribution rate shall be less than one-tenth of 1 persubparagraphs 1. and 2., after which the benefit ra- cent except in years when the adjustment factor protio of such employer shall be computed as provided vided for in sub-subparagraph c. is negative the minin subparagraphs 1. and 2. Variation from the stand- imum rate of one-tenth of 1 percent shall be reduced ard rate of contribution shall be assigned on a quar- to the extent of the negative adjustment factor proterly basis to such employers eligible therefor in like vided for in sub-subparagraph c. manner as assignments made for a calendar year a. An adjustment factor for noncharge benefits under paragraph (e) of this subsection. will be computed to the fifth decimal place, and

(c) The standard rate of contributions payable by rounded to the fourth decimal place, by dividing the each employer shall be 2.7 percent. amount of benefit payments noncharged in the 3

(d) Employers shall be eligible for rate variations preceding calendar years by the taxable payroll of from the standard rate of contributions, as herein- employers eligible to be considered for assignment of after described, in any calendar year, only if their a contribution rate different from the standard rate employment records have been chargeable with ben- that have a benefit ratio for the current year less efit payments throughout the 3 consecutive calendar than the maximum contribution rate, except that in years ending on December 31, ofthe preceding calen- computing the adjustment factor for 1964 the 2 predar year. ceding calendar years ofnoncharged benefits will be

(e)l. Variations from the standard rate of contri- used. The taxable payroll of such employers will be butions shall be assigned with respect to each calen- the taxable payrolls for the 3 years ending Septem-

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ber 30 of the preceding calendar year that had been reported to the division by December 31 of the same calendar year except that in computing the adjustment factor for 1964 the 2 preceding years of taxable payrolls will be used. Noncharge benefits for the purpose of this section shall be defined as benefit payments to an individual which were paid from the Unemployment Compensation Trust Fund but which were not charged to the unemployment record of any employer.

b. An excess payments adjustment factor will be computed to the fifth decimal place, and rounded to the fourth decimal place, by dividing the total excess payments during the 3 preceding calendar years by the taxable payroll of employers eligible to be considered for assignment of a contribution rate different from the standard rate that have a benefit ratio for the current year less than the maximum contribution rate, except that in computing the adjustment factor for 1964 the 2 preceding years' excess payments will be used. The taxable payroll of such employers will be the same as used in computing the noncharge adjustment factor as described in subsection (3)(e)l.a. Excess payments for the purpose of this section shall be defined as the amount of benefit payments charged to the employment record of an employer during the 3 preceding calendar years less the product of the maximum contribution rate and his taxable payroll for the 3 years ending September 30 of the preceding calendar year that had been reported to the division by December 31 of the same calendar year, except that in computing excess payments for use in 1964 contribution rate determination the 2 preceding years will be used. Total excess payments shall be defined as the sum of the individual employer excess payments for those employers that were eligible to be considered for assignment of a contribution rate different from the standard rate.

c. If the balance in the Unemployment Compensation Trust Fund as of December 31 of the calendar year immediately preceding the calendar year for which the contribution rate is being computed is less than 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year, a positive adjustment factor will be computed. Such adjustment factor shall be computed annually to the fifth decimal place, and rounded to the fourth decimal place, by dividing the sum of the total taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of such calendar year into a sum equal to one-fourth of the difference between the amount in the fund as of December 31 of such preceding calendar year and the sum of 5 percent of the total taxable payrolls for that year. Such adjustment factor will remain in effect in subsequent years until a balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately preceding the effective date of such contribution rate equals or exceeds 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year. If the balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately

preceding the calendar year for which the contribution rate is being computed exceeds 5 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year, a negative adjustment factor will be computed. Such adjustment factor shall be computed annually to the fifth decimal place, and rounded to the fourth decimal place, by dividing the sum of the total taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of such calendar year into a sum equal to one-fourth of the difference between the amount in the fund as of December 31 of such preceding calendar year and 5 percent of the total taxable payrolls of such year. Such adjustment factor will remain in effect in subsequent years until the balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately preceding the effective date of such contribution rate is less than 5 percent but more than 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year. In determining if a positive or a negative adjustment factor shall be applicable to contributions payable for the calendar quarters in the years 1973, 1974, and 1975, the taxable payrolls for the year ending September 30, 1972, shall be reduced by 30 percent prior to any computation applicable to contributions payable for calendar quarters in 1973; the taxable payrolls for the year ending September 30, 1973, shall be reduced by 20 percent prior to any computation applicable to contributions payable for calendar quarters in 1974; and the taxable payrolls for the year ending September 30, 1974, shall be reduced by 10 percent prior to any computat ion applicable to contributions payable for calendar quarters in .1975.

d. The maximum contribution rate that can be assigned to any employer shall be 2.9 percent with respect to the calendar year 1963, 3.5 percent with respect to the calendar year 1964, 4 percent with respect to the calendar year 1965, and 4.5 percent with respect to the calendar year 1966 and subsequent calendar years.

2. In the event of the transfer of employment records to an employing unit pursuant to paragraph (g) which, prior to such transfer, was an "employer" the division shall recompute a ·benefit ratio for the successor employer on the basis of the combined employment records, and reassign an appropriate contribution rate to such successor employer as of the beginning of the calendar quarter immediately following the effective date of such transfer of employment records.

(f) As used in paragraph (b)2., the term "annual payroll" means the total amount of wages for insured employment paid by an employer during the 12-month period ending on September 30 of any calendar year with respect to which contributions have been paid on or before the date on which they became due and payable; and as used in paragraph (b)l., the term "annual payroll" means the total amount of wages for insured employment paid by an employer during a period of 4 consecutive calendar quarters with respect to which contributions have

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been paid on or before the date on which they become due and payable. Provided, that where ·no contributions are payable for a calendar quarter, the term "annual payroll" as used in paragraph (b) shall include only wages paid during such quarter with respect to which contribution and wage reports have been submitted to the division on or before the date on which they became due.

(g)l. For the purposes of this subsection, two or more employers who are parties to a transfer ofbusiness or the subject of a merger, consolidation, or other form of reorganization, effecting a change in legal identity or form, shall be deemed to be a single employer and shall be considered as one employer with a continuous employment record if the division finds that the successor employer continues to carry on the employing enterprises of the predecessor employer or employers.

2. Each predecessor shall in the event he again employs persons be treated as an employer without previous employment record, or, if his coverage has been terminated as provided in s. 443.09, as a new employing unit.

3. The 1[division] may provide by regulation for partial transfer of experience rating where an em~ player has transferred at any time an identifiable and segregable portion of his payrolls and business to a successor employing unit. As a condition of such partial transfer of experience, the regulations shall require an application by the successor, agreement by predecessor, and such evidence as the division may prescribe of the experience and payrolls attributable to the transferred portion up to the date of transfer. The regulations shall provide that the successor employing unit, if not already an employer, shall become an employer as of the date of the transfer and that the experience of the transferred portion of the predecessor's account shall be removed from the experience-rating record of the predecessor and for each calendar year following the date of the transfer of the employment record on the books of the division, the division shall compute the rate of contribution payable by the successor on the basis of his experience, if any, combined with the experience of the portion of the record transferred. The regulation may also provide what rates shall be payable by the predecessor and successor employers for the period between the date of the transfer of the employment record of the transferred unit on the books of the division and the first day of the next calendar year.

(h) No reduction below the standard contribution rate shall be allowed an employer under the provisions of this section unless:

1. All contributions, interest, and penalties incurred by such employer with respect to wages paid by him in all previous calendar quarters, except the 4 calendar quarters immediately preceding the calendar quarter or calendar year for which the benefit ratio is computed, have been paid; and

2. The employer entitled thereto shall have at least one "annual payroll" as defined in paragraph (f) and unless such employer is eligible for additional credit under the provisions of the Federal Unemployment Tax Act; and in the event the Federal Unemployment Tax Act shall be revised, amended, or

repealed, this section shall be applicable only to the extent that additional credit may be allowed against the payment of the tax imposed by said Federal Unemployment Tax Act.

(i) The division: 1. Shall promptly notify each employer of his

rate of contributions as determined for any calendar year pursuant to this section. Such determination shall become conclusive and binding upon the employer unless within 15 days after the mailing of notice thereof to his last known address, or, in the absence of mailing, within 15 days after the delivery of such notice, the employer files an application for review and redetermination setting forth his reasons therefor. If the division grants such review, the employer shall be promptly notified thereof and shall be afforded an opportunity for a fair hearing, but no employer shall be allowed, in any proceeding involving his rate of contributions or contribution liability, to contest the chargeability to his account of any benefits paid in accordance with a determination, redetermination or decision pursuant to s. 443.07, except upon the ground that the services on the basis of which such benefits w·ere found to be chargeable did not constitute services performed in employment for him and then only in the event that he was not a party to such determination, redetermination or decision or to any other proceedings provided for in this chapter in which the character of such services was determined. The employer shall be promptly notified of the division's denial of this application, or of the division's redetermination, both of which shall become final unless within the time prescribed by Florida Appellate Rules a petition for writ of certiorari is filed in the district court of appeal of the district in which the petitioner resides or in the District Court of Appeal for the First District of Florida.

2. Shall, upon the discovery of an error in computation, reconsider any prior determination or redetermination of contribution rate after the 15-day period has expired, and issue a revised notice of contribution rate as so redetermined. Such redetermination shall be subject to review, and become conclusive and binding in absence thereof, in the same manner as the determination provided in subparagraph 1. No such reconsideration shall be made after the March 31 immediately following the calendar year with respect to which the contribution rate is applicable, nor shall interest accrue on any additional contributions found to be due until 30 days after the employer is mailed notice of his revised contribution rate.

3. The 1[division] may provide by regulation for periodic notification to employers of benefits paid and chargeable to their accounts or of the status of such accounts, and any such notification, in the absence of an application for redetermination filed in such manner and within such period as the division may prescribe, shall become conclusive and binding upon the employer for all purposes of this chapter. Such redetermination, made after notice and opportunity for hearing, and the division's finding of fact in connection therewith, may be introduced in any subsequent administrative or judicial proceedings involving the determination of the rate of contributions of any employer for any calendar year and

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shall be entitled to the same finality as is provided the date on which such subjectivity begins and endin this subsection with respect to the findings of fact ing at the end of the next calendar year by filing a made by the division in proceedings to redetermine written notice of its election with the division not the contribution rate of an employer. later than 30 days immediately following the date of

(j)l. If the division finds that an employer's busi- the determination of such subjectivity. ness is closed solely because ofthe entrance of one or 3. Any nonprofit organization which makes an more of the owners, officers, partners, or tl~e majori- election in accordance with subparagraphs 1. or 2. of ty stockholder into the Armed Forces of the United this paragraph will continue to be liable for payStates, or any of its allies, or of the United Nations ments in lieu of contributions until it files with the after June 30, 1950, such employer's experience-rat- division a written notice terminating its election not ing record shall not be terminated; and, if the busi- later than 30 days prior to the beginning of the calness is resumed within 2 years after the discharge or endar year for which such termination shall first be release from active duty in the Armed Forces of such effective. person or persons, the employer's experience shall 4. Any nonprofit organization which has been be deemed to have been continuous throughout such paying contributions under this chapter for a period period. The benefit ratio of any such employer for subsequent to January 1, 1972, may change to a rethe calendar year in which he resumed business and imbursable basis by filing with the division not later the 3 calendar years immediately following shall be than 30 days prior to the beginning of any calendar a percentage equal to the total of his benefit charges year a written notice of election to become liable for (including charges of benefits paid to any individual payments in lieu of contributions. Such election during the period the employer was in the Armed shall not be terminable by the organization for that Forces based upon wages paid by him prior to his and the next calendar year. entrance into such forces) for the 3 most recently 5. The division, in accordance with such regulacompleted calendar years divided by that part of his tions as the '[division] may prescribe, shall notify total payroll, with respect to which contributions each nonprofit organization of any determination of have been paid to the division, for the 3 most recent its status as an employer and of the effective date of calendar years during the whole of which, respec- any election which it makes and of any termination tively, such employer has been in business. of such election. Such determinations shall be sub-

2. Provided, that no cash refund shall be made ject ·to reconsideration, appeal, and review in accordwith respect to any adjustment required hereunder, ance with the provisions of s. 443.15(2)(b). but such refund shall be made by credit memoran- (b) Reimbursement payments.- Payments in lieu dum only. of contributions shall be made in accordance with

(4) FINANCING BENEFITS PAID TO EM- the provisions ofthis paragraph. PLOYEES OF NONPROFIT ORGANIZATIONS.- 1. At the end of each calendar quarter or at the Benefits paid to employees of nonprofit organiza- end of any other period as determined by the divitions shall be financed in accordance with the provi- sian, the division shall bill each nonprofit organizasions of this subsection. For the purpose of this sub- tion, or group of such organizations, which has electsection, a nonprofit organization is an organization ed to make payments in lieu of contributions for an or group of organizations described ins. 501(c)(3) of amount equal to the full amount of regular benefits the United States Internal Revenue Code which is plus one-halfofthe amount of extended benefits paid exempt from income tax under s. 501(a) of such code. during such quarter or other prescribed period that

(a) Liability for contributions and election of re- is attributable to service in the employ of such organimbursement.-Any nonprofit organization which, ization. pursuant to s. 443.03(7)(c) or s. 443.09(3)(a) is, or be- 2. Payment of any bill rendered under subparacomes, subject to this chapter on or after January 1, graph 1. shall be made not later than 30 days after 1972, shall pay contributions under the provisions of such bill was mailed to the last known address of the subsection (1), unless it elects, in accordance with nonprofit organization or was otherwise delivered to this paragraph, to pay to the division for the unem- it, unless there has been an application for review ployment compensation trust fund an amount equal and redetermination in accordance with subparato the amount of regular benefits and of one-half of graph 4. the extended benefits paid, that is attributable to 3. Payments made by any nonprofit organization service in the employ of such nonprofit organization, under the provisions of this subsection shall not be to individuals for weeks of unemployment which be- deducted or deductible, in whole or in part, from the gin during the effective period of such election. remuneration of individuals in the employ of the

1. Any nonprofit organization which is, or be- organization. comes, subject to this chapter on January 1, 1972, 4. The amount due specified in any bill from the may elect to become liable for payments in lieu of division shall be conclusive on the organization uncontributions for a period of not less than 2 calendar less, not late.r than 15 days after the bill was mailed years beginning with January 1, 1972, provided it to its last known address or otherwise delivered to it, files with the division a written notice of its election the organization files an application for redetermiwithin the 30-day period immediately following such nation by the division, setting forth the grounds for date. such application. The division shall promptly review

2. Any nonprofit organization which becQmes and reconsider the amount due specified in the bill subject to this chapter after January 1, 1972, may and shall thereafter issue a redetermination in any elect to become liable for payments in lieu of contri- case in which such application for redetermination butions for not less than the period beginning with has been filed. Any such redetermination shall be

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conclusive on the organization unless, not later than 15 days after the redetermination was mailed to its last known address or otherwise delivered to it, the organization files its protest thereof, setting forth the grounds for the appeal. Proceedings on such protest shall be in accordance with the provisions of s. 443.15(2), relating to protests of assessments.

5. Past due payments of amounts in lieu of contributions shall be subject to the same interest and penalties that, pursuant to s. 443.15(1), apply to past due contributions.

(c) Authority to terminate elections.-If any nonprofit organization is delinquent in making payments in lieu of contributions as required under paragraph (b) of this subsection, the division .may terminate such organization's election to make payments in lieu of contributions as of the beginning of the next calendar year, and such termination shall be effective for that and the next calendar year.

(d) Allocations of benefit costs.-Each employer that is liable for payments in lieu of contributions shall pay to the division for the fund the amount of regular benefits plus the amount of one-half of extended benefits paid that are attributable to service in the employ of such employer. Ifbenefits paid to an individual are based on wages paid by more than one employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of subparagraph 1. or subparagraph 2.

1. Proportionate allocation when fewer than all base-period employers are liable for reimbursement. -If benefits paid to an individual are based on wages paid by one or more employers that are liable for payments in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer that is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.

2. Proportionate allocation when all base-period employers are liable for reimbursement.-Ifbenefits paid to an individual are based on wages paid by two or more employers that are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the individual by such employer bear to the total baseperiod wages paid to the individual by all ofhis baseperiod employers.

(e) Group accounts.-Two or more employers that have become liable for payments in lieu of contributions, in accordance with the provisions of paragraph (a) and s. 443.09(3), may file a joint application to the division for the establishment of a group account for the purpose of sharing the cost ofbenefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the

group's agent for the purposes of this paragraph. Upon its approval of the application, the division shall establish a group account for such employers effective as ofthe beginning of the calendar year in which it receives the application and shall notify the group's representative of the effective date of the account. Such account shall remain in effect for not less than 2 calendar years and thereafter until terminated at the discretion of the division or upon application by the group. Upon establishment of the account, each member of the group shall be liable for payments in lieu of contributions with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in such quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by such member in such quarter bear to the total wages paid during such quarter for service performed in the employ of all members of the group. The '[division] shall prescribe such regulations as it deems necessary with respect to applications for establishment, maintenance, and termination of group accounts that are authorized by this paragraph, for addition of new members to, and withdrawal of active members from, such accounts, and for the determination of the amounts that are payable under this paragraph by members of the group and the time and manner of such payments.

3(5) FINANCING BENEFITS PAID TO EMPLOYEES OF THE STATE AND POLITICAL SUBDIVISIONS OF THE STATE.-Benefits paid to employees of this state or any instrumentality of this state, or to employees of any political subdivision of this state, or. any instrumentality thereof, based upon service defined in s. 443.03(5)(b), shall be financed in accordance with this subsection.

(a) Unless an election is made as provided in paragraph (c), the state or any political subdivision of the state shall pay into the Unemployment Compensation Trust Fund an amount equivalent to the amount of regular and extended benefits paid to individuals, based on wages paid by the state or the political subdivision for service defined in s. 443.03(5)(b).

(b) The provisions of paragraphs (b), (d), and (e) of subsection (4), relating to reimbursement payments, allocation of benefit costs, and group accounts with respect to nonprofit organizations, shall be applicable also, to the extent allowed by federal law, with respect to the duties of this state or any political subdivision of this state as an "employer" by reason of s. 443.03(7)(b).

(c) Any employer subject to the provisions of this subsection may elect the contribution financing method as provided by law in lieu of the reimbursement financing method provided in paragraphs (a) and (b) of this subsection.

(d) Upon establishing a financing method as provided by this subsection, such financing method shall be applicable for not less than 2 calendar years. Nothing herein shall be construed to prevent an employer subject to the provisions of this subsection from electing to change its method of financing after completing 2 years under another financing method, so long as such new election is timely filed.

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Ch. 443 UNEMPLOYMENT COMPEN:SATION LAW Ch. 443

(6) PUBLIC EMPLOYERS UNEMPLOYMENT COMPENSATION BENEFIT ACCOUNT.-

(a) There is established a Public Employers Unemployment Compensation Benefit Account which will be maintained with separate accounting as a part of the Florida Unemployment Compensation Trust Fund. All benefits paid to public employees shall be charged to the Public Employers Unemployment Compensation Benefit Account.

(b) Governmental entities subject to the Florida Unemployment Compensation Law under s. 443.03(5)(b) who exercise the option to elect the contributory system of financing unemployment compensation benefits shall have their accounts maintained and shall be subject to the provisions of s. 443.08(1), (2), and (3), except that:

1. The term "taxable wages" shall mean total gross wages.

2. The initial contribution rate shall be 0.25 percent.

3. Any election by an employer to be taxed under this subsection shall be effective January 1 and shall be taxed at the initial rate. Effective January 1 of the following year, the rate shall be computed based on 2 calendar quarters of chargeability and payroll; effective January 1 of the second year after such election, based on 6 quarters of chargeability and payroll; and January 1 of the third year after such election, on 10 quarters of chargeability and payrolls. Each January 1 thereafter, the tax rates shall be computed based on 12 quarters of chargeability and payroll.

4. An employer electing to be taxed under the provisions of this subsection shall make such election not later than 30 days prior to January 1 of the year for which the election is to be effective. Upon electing this financing method, such method shall be applicable for not less than 2 years.

5. Any election under this subsection may be terminated by filing with the division, not later than 30 days prior to January 1, a written notice of termination.

History.-<!. 8, ch. 18402, 1937; s. 5, ch. 19637, 1939; CGL 1940 Supp. 4151(495); s. 8, ch. 20685, 1941; s. 1, ch. 21981, 1943; s. 1, ch. 22946, 1945; s. 1, ch. 23918, 1947; s. 11, ch. 25035, 1949; ss. 5, 6, ch. 26879, 1951; s. 1, ch . 26958, 1951; ss. 2-4, ch. 26878, 1951; ss. 5-9, ch . 28242, 1953; s. 4, ch. 29771, 1955; ss. 1-3, ch. 29817, 1955; s. 3, ch . 57-247; s. 2, ch. 57-268; ss. 1, 2, ch. 59-98; s. 2, ch. 61-119; s. 4, ch. 61-132; s. 1, ch. 63-154; s. 1, ch. 63-137; s. 1, ch. 65-243; s. 1, ch. 65-25; s. 1, ch. 67-225; s. 1, ch. 67-244; ss. 17, 35, ch. 69-106; s. 1, ch. 70-296; s. 1, ch. 70-439; s. 6, ch. 71-225; ss. 1-3, ch. 71-227; s. 2, ch. 72-155; s. 118, ch. 73-333; s. 3, ch. 74-198; ss. 5, 7, ch. 77-262; s. 2, ch. 77-393; s. 5, ch. 77-399.

'Note.-See note 1 followings. 443.03. 1Note.-Bracketed reference substituted by editors to correct an apparent

drafting error. 'Note.-As amended by ch. 77-262, effective January 1, 1978.

chapter only with respect to employment occurring subsequent to the date of such acquisition.

(2) TERMINATION OF COVERAGE.-(a) General.-Except as otherwise provided in

this section, an employing unit shall cease to be an employer subject to this chapter as of January 1 of any calendar year only if it files with the division, by April30 of the year for which termination is requested, a written application for termination of coverage and the division finds that there were no 20 different days, each day being in a different week within the preceding calendar year, within which such employing unit employed at least one individual in employment subject to this chapter, and further finds that there was no calendar quarter within such preceding calendar year in which such employing unit paid wages for service in employment of $1500 or more. However, the above prescribed time limitation for the filing of such written application may be waived by the division in cases where such time limitation had expired prior to the establishment in the records of the division of the liability of such employing unit. For the purposes of this subsection the two or more employing units mentioned in s. 443.03(7)(d), (e) and (g) shall be treated as a single employing unit.

(b) Nonprofit organizations.-Except as otherwise provided i.D. subsection (4), an employing unit subject to this chapter by reason of s. 443.03(5)(c) shall cease to be an employer so subject as of January 1 of any calendar year only if it files with the division, by April 30 of the year for which termination is requested, a written application for termination of coverage and the division finds that there were no 20 different days, each day being in a different week within the preceding calendar year, within which such employing unit employed four or more individuals in employment subject to this chapter. The timely filing of application may be waived as provided in (a).

1(c) State and political subdivisions.-The state and any political subdivision of the state shall remain an employer subject to this chapter for the duration of · any employment defined in s. 443.03(5)(b), and shall cease being so subject only pursuant to subsection (4) of this section.

(3) ELECTIVE COVERAGE.-(a) General.-An employing unit, not otherwise

subject to this chapter, which files with the division its written election to become an employer subject hereto for not less than 1 calendar year, shall, with written approval of such election by the division,

443.09 Employing units affected.- become an employer subject hereto to the same ex-(1) PERIODS OF LIABILITY.- tent as all other employers as of the date stated in (a) Any employing unit which is or becomes an such approval, and shall cease to be subject hereto as

employer subject to this chapter as defined in s. of January 1 of any calendar year subsequent to the 443.03(7)(a), (b), or (c) within any calendar year shall first calendar year of its election only if, by April30 be subject to this chapter during the whole of such of such subsequent year, such employing unit has calendar year. filed with the division a written notice to that effect.

(b) Any employing unit which is or becomes an However, at the expiration of the calendar year of employer subject to this chapter solely by reason of such eleCtion the division may reconsider such valthe provisions of s. 443.03(7)(d) shall be subject to this untary election of coverage and may in its discretion chapter only during its operation of the business ac- notify such employer that such employer will not be quired. carried upon the records of the division as an em-

(c) Any employing unit which is or becomes an ployer, and thereupon such employer shall cease to employer subject to this chapter solely by reason of be an employer under the provisions of this chapter the provisions ofs. 443.03(7)(e) shall be subject to this as of January 1 of the year next succeeding the last

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calendar year during which it was an employer under this chapter.

(b) State and political subdivision.-Any employing unit, including this state or any political subdivision thereof, or any instrumentality of any one or more of the foregoing which is wholly owned by this state or by one or more of its political subdivisions, for which services that do not constitute employment as defined in this chapter are performed may file with the division a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all the purposes of this chapter for not less than one calendar year. Upon written approval of such election by the division, such services shall be deemed to constitute employment subject to this chapter from and after the date stated in such approval. Such services shall cease to be deemed employment subject hereto as of January 1 of any calendar year subsequent to such calendar year only if, by April 30 of such subsequent year, such employing unit has filed with the division a written notice to that effect.

(c) Certain services for political subdivisions.!. Any political subdivision of this state may

elect to cover under this chapter, for not less than one calendar year, service performed by employees in all of the hospitals and institutions of higher education, as defined in s. 443.03(5)(b), operated by such political subdivision. Election is to be made by filing with the division a notice of such election at least 30 days prior to the effective date of such election. The election may exclude any services described in s. 443.03(5)(d). Any political subdivision electing coverage under this paragraph shall make payments in lieu of contributions with respect to benefits attributable to such employment as provided with respect to nonprofit organizations in s. 443.08(4)(b) and (d).

2. The provisions in s. 443.05(4) with respect to benefit rights based on service for nonprofit organizations and state hospitals and institutions of higher education shall be applicable also to service covered

such employer shall cease to be an employer subject to the provisions of this chapter.

History.- s. 9, ch. 18402, 1937; CGL 1940 Supp. 4151(496); s. 9, ch. 20685, 1941; s. 2, ch. 21982, 1943; ss. 7, 8, ch. 26879, 1951; s. 10, ch. 28242, 1953; s. 5, ch. 29771, 1955; s. 5, ch. 61-132; ss. 2, 3, ch. 65-114; ss. 17, 35, ch. 69-106; s. 7, ch. 71-225; s. 6, ch. 77-262.

1Note.-As amended, effective January 1, 1978. cf.-s. 1.01 Defines registered mail to include certi fied mail with return receipt

requested.

443.10 Unemployment Compensation Trust Fund; establishment and control.-

(1) There is hereby established as a special fund separate and apart from all public moneys or funds of this state, an Unemployment Compensation Trust Fund, which shall be administered by the division exclusively for the purposes ·of this chapter. This fund shall consist of:

(a) All contributions collected under this chap-ter

d:>) Interest earned upon any moneys in the fund; (c) Any property or securities acquired through

the use of moneys belonging to the fund; (d) All earnings of such property or securities;

and (e) All money credited to this state's account in

the Unemployment Compensation Trust Fund pursuant to s. 903 of the Social Security Act as amended.

All moneys in the fund shall be mingled and undivided.

(2) The State Treasurer shall be the ex officio treasurer and custodian of the fund and shall administer such fund in accordance with the directions of the division. All payments from the fund shall be approved by the division or by a duly authorized agent and shall be made by the Treasurer upon warrants issued by the Comptroller and countersigned by the Governor except as hereinafter provided. The Treasurer shall maintain within the fund three separate accounts:

(a) A clearing account; (b) An Unemployment Compensation Trust

Fund account; and (c) A benefit account.

by an election under this section. All moneys payable to the fund, including moneys 3. The amounts required to be paid in lieu of received from the United States as reimbursement

contributions by any political subdivision under this for extended benefits paid by the division, upon reparagraph shall be billed and payment made as pro- ceipt thereof by the division, shall be forwarded to vided in s. 443.08(4)(b) with respect to similar pay- the Treasurer who shall immediately deposit them ments by nonprofit organizations. in the clearing account. Refunds payable pursuant

4. An election under this paragraph may be ter- to s. 443.15 may be paid from the clearing account minated after not less than 1 calendar year of cover- upon warrants issued by the Comptroller as above age by filing with the division written notice not set forth . After clearance thereof, all other moneys later than 30 days preceding the last day of the cal- in the clearing account shall be immediately depositen dar year in which the termination is to be effec- ed with the Secretary of the Treasury ofthe United tive. Such termination becomes effective as of Janu- States to the credit of the account of this state in the ary 1 of the next ensuing calendar year with respect Unemployment Compensation Trust Fund estabto services performed after that date. lished and maintained pursuant to s. 904 ·of the So-

(4) INACTIVE EMPLOYERS.-Notwith- cial Security Act, as amended, any provisions of the standing the other provisions of this section, if the law in this state relating to the deposit, administradivision finds that an employer has become inactive tion, release, or disbursement of moneys in the posand has ceased to be an employing unit as defined by session or custody of this state to the contrary notthis chapter for a complete calendar year the divi- withstanding. The benefit account shall consist of all sian may automatically terminate the account of moneys requisitioned from this state's account in the such employer as of January 1 of any year following Unemployment Compensation Trust Fund. Except a complete calendar year in which such employer as herein otherwise provided, moneys in the clearing has ceased to be an employing unit, and thereupon and benefit accounts may be deposited by the Trea-

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surer, under the direction of the division, in any bank or public depository in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund. If any warrant issued against the clearing account or the benefit account is not presented for payment within 1 year after issuance thereof, the Comptroller shall cancel the same and credit without restriction the amount of such warrant to the account upon which it is drawn. When the payee or person entitled to any warrant so canceled requests payment thereof, the Comptroller, upon direction of the division, shall issue a new warrant therefor, to be paid out of the account against which the canceled warrant had been drawn. The Treasurer shall be liable on his official bond for the faithful performance of his duties as custodian of the fund.

(3) Moneys shall be requisitioned from the state's account in the Unemployment Compensation Trust Fund solely for the payment of benefits and extended benefits and in accordance with regulations prescribed by the '[division], except that money credited to this state's account pursuant to s. 903 of the Social Security Act as amended shall be used exclusively as provided in subsection (5). The division, through the Treasurer, shall from time to time requisition from the Unemployment Compensation Trust Fund such amounts, not exceeding the amounts standing to this state's account therein, as it deems necessary for the payment of benefits and extended benefits for a reasonable future period. Upon receipt thereof the Treasurer shall deposit such moneys in the benefit account in the State Treasury and warrants for the payment of benefits and extended benefits shall be drawn by the Comptroller upon the order of the division against such benefit account. All warrants for benefits and extended benefits shall be payable directly to the ultimate beneficiary. Expenditures of such moneys in the benefit account and refunds from the clearing account shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of money in their custody. All warrants issued for the payment of benefits and refunds shall bear the signature of the Comptroller and the countersignature of the Governor as above set forth. Any balance of moneys requisitioned from the Unemployment Compensation Trust Fund which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned shall either be deducted from estimates for, and may be utilized for the payment of, benefits and extended benefits during succeeding periods, or, in the discretion of the division, shall be redeposited with the Secretary of the Treasury ofthe United States, to the credit of this state's account in the Unemployment Compensation Trust Fund, as provided in subsection (2) of this section.

(4) The provisions of subsections (1), (2), and (3), to the extent that they relate to the Unemployment Compensation Trust Fund, shall be operative only so long as such unemployment trust fund continues to exist and so long as the Secretary of the Treasury of the United States continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together

with this state's proportionate share of the earnings of such Unemployment Compensation Trust Fund, from which no other state is permitted to make withdrawals. If and when such Unemployment Compensation Trust Fund ceases to exist, or such separate book account is no longer maintained, all moneys, properties, or securities therein, belonging to the Unemployment Compensation Trust Fund of this state shall be transferred to the Treasurer of the Unemployment Compensation Trust Fund, who shall hold, invest, transfer, sell, deposit, and release such moneys, properties, or securities in a manner approved by the division in accordance with the provisions of this chapter; provided that such moneys shall be invested in the following readily marketable classes of securities: Bonds or other interest-bearing obligations ofthe United States or of the state. Provided further, that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The Treasurer shall dispose of securities or other properties belonging to the Unemployment Compensation Trust Fund only under the direction of the division.

(5) MONEY CREDITED UNDER SECTION 903 OF THE SOCIAL SECURITY ACT.-

(a) Money credited to the account of this state in the Unemployment Compensation Trust Fund by the Secretary of the Treasury of the United States pursuant to s. 903 of the Social Security Act may not be requisitioned from this state's account or used except for the payment of benefits and for the payment of expenses incurred for the administration of this law. Such money may be requisitioned pursuant to subsection (3) for the payment of benefits. Such money may also be requisitioned and used for the payment of expenses incurred for the administration of this law but only pursuant to a specific appropriation by the Legislature and only if the expenses are incurred and the money is requisitioned after the enactment of an appropriation law which:

1. Specifies the purposes for which such money is appropriated and the amounts appropriated therefor

2. Limits the period within which such money may be obligated to a period ending not more than 2 years after the date of the enactment of the appropriation law; and

3. Limits the amount which may be obligated during any 12-month period beginning on July 1 and ending on the next June 30 to an amount which does not exceed the amount by which the aggregate of the amounts credited to the account of this state pursuant to s. 903 of the Social Security Act during the same 12-month period and the 14 preceding 12-month periods, exceeds the aggregate of the amounts obligated for administration and paid out for benefits and charged against the amounts credited to the account of this state during such 15 12-month periods.

(b) Amounts credited to this state's account in the Unemployment Compensation Trust Fund under s. 903 of the Social Security Act which are obligated for administration or paid out for benefits shall be charged against equivalent amounts which were first credited and which are not already so

140


charged; except that no amount obligated for administration during a 12-month period specified herein may be charged against any amount credited during such a 12-month period earlier than the fourteenth preceding such period. Any amount credited to the state's account under s. 903 which has been appropriated for expenses of administration, whether or not withdrawn from the Unemployment Compensation Trust Fund, shall be excluded from the Unemployment Compensation Trust Fund balance for the purposes of s. 443.08(3).

(c) Money appropriated as provided herein for the payment of expenses of administration shall be requisitioned as needed for the payment of obligations incurred under such appropriation and, upon requisition, shall be deposited in the Employment Security Administration Trust Fund from which such payments shall be made. Money so deposited shall, until expended, remain a part of the Unemployment Compensation Trust Fund and, if it will not be expended, shall be returned promptly to the account of this state in the Unemployment Compensation Trust Fund.

(6) APPROPRIATIONS.-(a) There is appropriated out of funds made

available to the state under s. 903 of the Social Security Act, as amended, the sum of $800,000, or so much thereof as may be necessary, to be used, under the direction of the Division of Employment Security of the Florida Department of Commerce and in accordance with the applicable standards prescribed by, and subject to the approval of the manpower administration of the United States Department of Labor, for construction of an addition to the Caldwell Building at Tallahassee, and for the provision of such improvements, facilities, paving, landscaping, and fixed equipment as may be required for its proper use and operation.

(b) The sums herein appropriated are to be expended solely for the construction of an addition to the Caldwell Building to be used exclusively for the employment security activities of th,e division and for all necessary expenses incidental thereto, and said sums shall be obligated for the purposes herein appropriated not later than the 2-year period following the date of the enactment hereof. Of the amount hereinabove appropriated, the division may not obligate of said appropriations during the fiscal year ending June 30, 1971, an amount to exceed the total of the sums credited to Florida under the provisions ofs. 903 of the Social Security Act for such fiscal year and the 14 preceding fiscal years, less the aggregate of the amounts which have been obligated for administration and paid out for benefits and charged against said sums during such 15 fiscal years. Nor shall the amount which may be obligated by said division under the appropriation during the fiscal year ending June 30, 1972, exceed the total of the sums credited to this state under provisions of said s. 903 of the Social Security Act for such fiscal year and the 14 preceding fiscal years, less the aggregate of the amounts which have been obligated for administration and paid out for benefits and charged against said sum during such 15 fiscal years.

(c) The division is authorized to withdraw from this state's account in the unemployment trust fund

referred to in said Employment Security Administrative Financing Act of 1954 as amended, such sums as are from time to time needed for payment of obligations incurred under the provisions hereof, but not to exceed at any time either the amount· in said fund made available by said Employment Security Administrative Financing Act of 1954, as amended, or the specific appropriation made for a particular location.

(d) Any moneys requisitioned and withdrawn by the division under the provisions of paragraph (c) shall be deposited in a separate account of this state's Employment Security Administration Trust Fund, but such moneys until expended shall remain a part of the Unemployment Compensation Trust Fund. The division shall maintain a separate record of the deposit, obligation, and expenditure of such funds.

(e) The division shall have complete authority to carry out the purposes of this section and is expressly authorized and empowered to employ necessary appraisers, architects, engineers, and contractors, and to execute all contracts necessary to effectuate the declared purposes of this section, including the acquisition of the necessary real estate for said offices, which real property shall be acquired in the name of the division and shall be used exclusively thereafter for providing facilities for the employment security activities of the division.

(f) Money so withdrawn from the Unemployment Compensation Trust Fund shall be repaid from federal funds periodically allocated to the division for rental of local employment office space in the named municipalities. Such money as may be used for the purposes of this subsection, including any unrepaid portion thereof, shall continue to be deemed part of the Unemployment Compensation Trust Fund for the purposes ofs. 443.08(3)(e)l.c., and such temporary use shall not be construed to have reduced the total of such fund for tax rate computation purposes, including interest which would have been added to such total if none of such fund had been used as authorized by this subsection.

History.-s. 10, ch. 18402, 1937; s. 6, ch. 19637, 1939; CGL 1940 Supp. 4151(497); s. 1, ch. 24084, 1947; s. 11, ch. 25035, 1949; s. 6, ch. 29771, 1955; ss. 1·3, ch. 59-99; s. 2, ch. 61-119; s. 6, ch. 61-132; s. 1, ch. 61-172; ss. 1, 2, ch. 63-276; ss. 1-3, ch. 65-114; ss. 17, 35, ch. 69-106; ss. 1-3, ch. 70-265; s. 1, ch. 70-315; ss. 8, 9, ch. 71-225; s. 1, ch. 73-283; s. 1, ch. 77-174.

'Note.-See note 1 followings. 443.03.

443.11 Administrative organization.(!) BUREAUS.-(a) There are hereby created· and established in

the Division of Employment Security two coordinate bureaus, the Bureau of Employment Services, established pursuant to s. 443.13, and a Bureau of Unemployment Compensation. Each bureau shall be a separate administrative unit and shall be responsible for the discharge of its distinctive functions except insofar as the division may find that such division is impracticable. Each bureau shall pay its proportionate part of the administrative costs for the division.

(b) '[The director of the division and each of the members of the board shall receive their salaries from the trust fund created by s. 443.14(1).]

(2) OBSOLETE RECORDS.-The division is expressly authorized to provide by regulation for the destruction of obsolete records of the division.

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(3) ADVANCES.-The division is authorized and directed to apply for an advance to the State Unemployment Compensation Trust Fund and to accept responsibility for the repayment of such advance in accordance with the conditions specified in Title XII of the Social Security Act as amended, in order to secure to this state and its citizens the advantages available under the provisions of said Title XII of the Social Security Act.

History.-s. 11, ch. 18402, 1937; s. 7, ch. 19637, 1939; CGL 1940 Supp. 4151(498); s. 10, ch. 20685, 1941; s. 3, ch. 21982, 1943; s. 2, ch. 22946, 1945; s. 1, ch. 24094, s. 2, ch. 24084, 1947; s. 11, ch. 28242, 1953; s. 7, ch. 29771, 1955; s. 1, ch. 57-786; s. 1, ch. 61-139; s. 7, ch. 61-132; s. 2, ch. 61-119; s. 19, ch. 63-400; s. 166, ch. 71-377; s. 1, ch. 73-283; s. 1, ch. 77-174.

'Note.- Bracketed paragraph (b) substituted by the editors to conform to ch. 75-237, providing for commissioners' salaries and to ch. 77-399, creating the Board of Review and vesting in it all appellate functions relating to unemployment compensation formerly performed by the Industrial Relations Commission. Paragraph (b) formerly read as follows:

" (b) The director of the division and each of the other members of the commission shall receive one-half of his total salary from the trust fund created by s. 443.14(1) and one-half from the trust fund created by s. 440.50."

reasonable and proper for the effective administration of this chapter, and may in its discretion bond any person handling moneys or signing checks hereunder; the cost of such bonds shall be paid from the Employment Security Administration Trust Fund.

(5) ADVISORY COUNCILS.-(a) Employment Service Advisory Council.-The

division shall appoint a state Employment Service Advisory Council, composed of men and women, including an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment, or affiliations, and of such members representing the general public as the division may designate. Such council shall aid the division in reviewing employment service programs as to content, adequacy, and effectiveness, and make recommendations for improvement. Members of the Employment Service Advisory Council shall serve with-

443.12 Division and board; powers, duties, out compensation but shall be reimbursed for any etc.; rules and regulations; personnel; advisory travel and subsistence expense incurred, in accordcouncils; records and reports; cooperation, ance with the travel and subsistence regulations ap-etc.- l ' bl (1) DUTIES AND POWERS OF DIVISION.-It P 1ca e to the employees of the division. The adviso-shall be the duty of the division to administer this ry council shall meet as frequently as the division

deems necessary, but not less than twice each year. chapter; and it shall have power and authority to The advisory council shall make reports of its meet-employ such persons, make such expenditures, re- ings, which shall include a record of its discussions quire such reports, make such investigations, and and its recommendations. The division shall make take such other action as it deems necessary or suita-ble to that end. The division shall determine its own such reports available to any interested persons or organization and methods of procedure in accord- groups. ance with the provisions of this chapter. Not later (b) Unemployment Insurance Advisory Council. than March 15 of each year, the division, through -The division shall appoint a state Unemployment the Department of Commerce, shall submit to the Insurance Advisory Council, composed of men and Governor a report covering the administration and women, including an equal number of employer repoperation of this chapter during the preceding calen- resentatives and employee representatives who may dar year and shall make such recommendations for fairly be regarded as representative because of their amendment to this chapter as it deems proper. vocation, employment, or affiliations, and of such

(2) RULES AND REGULATIONS; 2[DIVISION], members representing the general public as the clivi-SEAL.- sion may designate. Such council shall aid the divi-

(a) The division shall have the power and author- sion in reviewing the unemployment insurance proity to adopt, amend, or rescind, pursuant to chapter gram as to its content, adequacy and effectiveness 120, such rules and regulations as are necessary for and make recommendations for its improvement. the administration of this chapter. Members of the Unemployment Insurance Advisory

3(b) The commission shall have an official seal, Council shall serve without compensation, but shall which shall be judicially noticed. be reimbursed for any travel and subsistence ex-

(3) PUBLICATION OF ACTS AND RULES AND pense incurred, in accordance with the travel and REGULATIONS.-The division shall cause to be subsistence regulations applicable to employees of printed and distributed to the public the text ofthis the division. The advisory council shall meet as frechapter, the regulations and rules adopted by the quently as the division deems necessary, but not less 2[division], the division's annual report to the Gover- than twice each year. The advisory council shall nor, and any other matter the division deems rele- make reports of its meetings, which shall include a vant and suitable, and shall furnish this information record of its discussions and its recommendations. to any person upon application therefor. However, The division shall make such reports available to no pamphlet, rules, circulars or reports required by any interested persons or groups. this chapter shall contain any matter except the ac- (6) EMPLOYMENT STABILIZATION.- The ditual data necessary to complete same or the actual vision with the advice and aid of advisory councils language of the said rule or regulation, together with shall take all appropriate steps to reduce and preproper notices thereof. vent unemployment; to encourage and assist in the

(4) PERSONNEL.-Subject to chapter 110 and adoption of practical methods ofvocational training, the other provisions of this chapter, the division is retraining and vocational guidance; to investigate, authorized to appoint, fix the compensation, and pre- recommend, advise, and assist in the establishment scribe the duties and powers of such employees, ac- and operation, by municipalities, counties, school countants, attorneys, experts, and other persons as districts and the state of reserves for public works to may be necessary in the performance of its duties be used in times of business depression and unemunder this chapter. The division may delegate to any ployment; to promote the reemployment of the unsuch person such power and authority as it deems employed workers throughout the state in every oth-

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er way that may be feasible; and to these ends to carry on and publish the results of investigations and research studies.

(7) RECORDS AND REPORTS.-Each employing unit shall keep true and accurate work records, containing such information as the 2[division] may prescribe. Such records shall be open to inspection and be subject to being copied by the division at any reasonable time and as often as may be necessary. The division or an appeals referee may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, deemed necessary for the effective administration of this chapter. Information thus obtained, or obtained from any individual pursuant to the administration of this chapter, shall, except to the extent necessary for the proper presentation of a claim, be held confidential and shall not be published or be open to public inspection (other than to public employees in the performance of their public duties), in any manner revealing the individual's or employing unit's identity, but any claimant (or his legal representative) at a hearing before an appeals referee or the 1[board] shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Any employee or member of the 1[board] or any employee of the division who violates any provision of this subsection shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Provided, however, the division may furnish to any employer copies of any report previously submitted by such employer, upon the request of such employer, and the division is authorized to charge therefor such reasonable fee as the 2[division] may by regulations prescribe not to exceed the actual reasonable cost of the preparation of such copies. Fees received by the division for copies as herein provided shall be deposited to the credit of the Employment Security Administration Trust Fund.

(8) OATHS AND WITNESSES.-In the discharge of the duties imposed by this chapter, the division, the appeals referees, the members of the 1[board] and any duly authorized representative of any of them shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this chapter.

(9) SUBPOENAS.-In case of contumacy by, or refusal to obey a subpoena issued to any person, any court of this state within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides, or transacts business, upon application by the division, the 1[board], an appeals referee, or any duly authorized representative of any ofthem shall have jurisdiction to issue to such person an order requiring such person to appear before the division, the 1[board], an appeals referee, or any duly authorized representative of any of them, there to produce evidence if so ordered or there to give testimony touching on the matter under investigation or in question; and any failure to

obey such order of the court may be punished by said court as a. contempt thereof. Any person who shall without just cause fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in his power to do so, in obedience to a subpoena of the division, the 1[board], an appeals referee, or any duly authorized representative of any of them, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and each day such violation continues shall be a separate offense.

(10) PROTECTION AGAINST SELF-INCRIMINATION.-No person shall be excused from attending and testifying, or from producing books, papers, correspondence, memoranda, and other records before the division, the 1[board], an appeals referee, or any duly authorized representative of any of them, or in obedience to the subpoena of any of them in any cause or proceeding before the division, the 1[board], or any appeals referee, on the ground that the testimony or evidence, documentary or otherwise, required ofhim may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.

(11) STATE-FEDERAL COOPERATION.-(a)l. In the administration of this chapter, the

division shall cooperate with the United States Department of Labor to the fullest extent consistent with the provisions of this chapter, and shall take such action, through the adoption of appropriate rules, regulations, administrative methods, and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation, the Federal Unemployment Tax Act, the Wagner-Peyser Act, and the Federal-State Extended Unemployment Compensation Act of 1970, or other federal manpower acts.

2. In the administration of the provisions in s. 443.04(5), which are enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970, the division shall take such action as may be necessary to ensure that the provisions are so interpreted and applied as to meet the requirements of such federal act as interpreted by the United States Department of Labor and to secure to this state the full reimbursement of the federal share of extended benefits paid under this chapter that are reimbursable under the Federal Act.

3. The division shall comply with the regulations of the United States Department ofLabor relating to the receipt or expenditure by this state of moneys granted under any of such acts and shall make such reports, in such form and containing such information, as the United States Department of Labor may from time to time require, and shall comply with such provisions as the United States Department of

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Labor may from time to time find necessary to assure the correctness and verification of such reports.

(b) The division may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.

(c) The division shall fully cooperate with the agencies of other states, and shall make every proper effort within its means, to oppose and prevent any further action which would in its judgment tend to effect complete or substantial federalization of state unemployment compensation funds or state employment security programs. The division may make, and may cooperate with other appropriate agencies in making, studies as to the practicability and probable cost of possible new state-administered social security programs, and the relative desirability of state, rather than federal, action in any such field.

(12) DISCLOSURE OF INFORMATION.-Subject to such restrictions as the 2[division] may by regulation prescribe, such information may be made available to any agency of this or any other state, or any federal agency, charged with the administration of any unemployment compensation law or the maintenance of a system of public employment offices, or the Bureau oflnternal Revenue of the United States Department of the Treasury, and information obtained in connection with the administration of the employment service may be made available to persons or agencies for purposes appropriate to the operation of a public employment service. Upon request therefor the division shall furnish any agency of the United States charged with the administration of public works or assistance through public employment, and may furnish to any state agency similarly charged, the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this chapter. The division may request the Comptroller of the Currency ofthe United States to cause an examination of the correctness of any return or report of any national banking association rendered pursuant to the provisions of this chapter, and may in connection with such request transmit any such report or return to the Comptroller of the Currency of the United States as provided in s. 3305(c) of the Federal Internal Revenue Code.

History.-s. 12, ch. 18402, 1937; CGL 1940 Supp. 4151(499), 8135(40), 8135(41); s. 11, ch. 20685, 1941; s. 4, ch. 21982, 1943; s. 1, ch. 22832, 1945; s. 3, ch. 24084, 1947; ss. 8, 9, ch. 29771, 1955; s. 1, ch. 57-269; s. 2, ch. 61-119; s. 19, ch. 63-400; ss. 10, 17, 35, ch. 69-106; s. 370, ch. 71-136; ss. 10, 11, ch. 71-225; s. 167, ch. 71-377; s. 4, ch. 74-198.

'Notc.-See note 2 following s. 443.06. 'Note.-See note 1 followings. 443.03. 'Note.-Paragraph (2)(b) is obsolete and will be deleted by a future reviser's

bill. Sections 20.17(6)(1) and 20.17(12)U) provide for official seals for the Industrial Relations Commission and the Board of Review, respectively. cf.-s. l13.07 Bonds of officials.

443.13 State Employment Service.-(1) The Florida State Employment Service is

hereby established in the division. The division shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this chapter and for the purposes of performing such duties as are within the purview of the Act of Congress entitled "An Act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system and

for other purposes," approved June 6, 1933 (48 Stat. 113; 29 U.S.C. s. 49(c)), as amended. It shall be the duty of the division to cooperate with any official or agency of the United States having power or duties under the provisions of the Act of Congress, as amended, and to do and perform all things necessary to secure to this state the benefits of said Act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The provisions of the said Act of Congress, as amended, are hereby accepted by this state, in conformity with s. 4 of said act, and this state will observe and comply with the requirements thereof. The Division of Employment Security of the Department of Commerce is hereby designated and constituted the agency of this state for the purpose of said act. The division is authorized and directed to appoint sufficient employees to carry out the purposes of this section. The division may cooperate with or enter into agreements with the Railroad Retirement Board with respect to the establishment, maintenance, and use of free employment service facilities.

(2) FINANCING.-All moneys received by this state under the said Act of Congress, as amended, shall be paid into the Employment Security Administration Trust Fund, and said moneys are hereby made available to the division to be expended as provided by this chapter and by said Act of Congress. For the purpose of establishing and maintaining free public employment offices, the division is authorized to enter into agreements with the Railroad Retirement Board or any other agency of the United States charged with the administration of an unemployment compensation law, with any political subdivision of this state, or with any private, nonprofit organization, and as a part of any such agreement the division may accept moneys, services, or quarters as a contribution to the Employment Security Administration Trust Fund.

History.-s. 13, ch. 18402, 1937; s. 8, ch. 19637, 1939; CGL 1940 Supp. 4151(500); s. 12, ch. 20685, 1941; s. 2, ch. 61-l19; ss. 17, 35, ch. 69-106; s. 1, ch. 73-283; s. 1, ch. 77-174.

443.14 Employment Security Administration Trust Fund; appropriation; reimbursement.-

(! ) EMPLOYMENT SECURITY ADMINISTRATION TRUST FUND.-There is hereby created in the State Treasury a special fund to be known as "the Employment Security Administration Trust Fund." All moneys which are deposited or paid into this fund shall be continuously available to the division for expenditure in accordance with the provisions of this chapter, and shall not lapse at any time or be transferred to any other fund. All moneys in this fund which are received from the federal government or any agency thereof or which are appropriated by this state for the purposes described in ss. 443.12 and 443.13 except money received pursuant to s. 443.10(5)(c) shall be expended solely for the purposes and in the amounts found necessary by the authorized cooperating federal agencies for the proper and efficient administration of this chapter. The fund shall consist of all moneys appropriated by this state, and all moneys received from the United States, or any agency thereof, and all moneys received from any other source for such purpose, and shall also include any moneys received from any

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agency of the United States or any other state as compensation for services or facilities supplied to such agency, any amounts received pursuant to any surety bond or insurance policy or from other sources for losses sustained by the Employment Security Administration Trust Fund or by reason of damage to equipment or supplies purchased from moneys in such fund, and any proceeds realized from the sale or disposition of any such equipment or supplies which may no longer be necessary for the proper administration of this chapter. Notwithstanding any provision of this section, all money requisitioned and deposited in this fund pursuant to s. 443.10(5)(c) shall remain part of the Unemployment Compensation Trust Fund and shall be used only in accordance with the conditions specified ins. 443.10(5). Allmoneys in this fund shall be deposited, administered, and disbursed, in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State Treasury. Such moneys shall be secured by the depositary in which they are held to the same extent and in the same manner as required by the general depositary law of the state and collateral pledged shall be maintained in a separate custody account. All payments from the employment Security Administration Trust Fund shall be approved by the division or by a duly authorized agent and shall be made by the Treasurer upon warrants issued by the Comptroller and countersigned by the Governor. Any balances in this fund shall not lapse at any time, but shall be continuously available to the division for expenditure consistent with this chapter. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Employment Security Administration Trust Fund provided for under this chapter. Such liability on the official bond shall be effective immediately upon the enactment of this provision, and such liability shall exist in addition to any liability upon any separate bond existent on the effective date of this provision, or which may be given in the future . All sums recovered on any surety bond for losses sustained by the Employment Security Administration Trust Fund shall be deposited in said fund.

(2) SPECIAL EMPLOYMENT SECURITY ADMINISTRATION TRUST FUND.-There is hereby created in the State Treasury a special fund, to be known as the "Special Employment Security Administration Trust Fund," into which shall be deposited or transferred all interest on contributions, penalties, and fines or fees collected under this chapter. Interest on contributions, penalties, and fines or fees deposited during any calendar quarter in the clearing account in the Unemployment Compensation Trust Fund shall, as soon as practicable after the close of such calendar quarter and upon certification of the division, be transferred to the Special Employment Security Administration Trust Fund; however, there shall be withheld from any such transfer the amount certified by the division to be required under this chapter to pay refunds of interest on contributions, penalties, and fines or fees collected after June 30, 1947, and erroneously deposited into the clearing account in the Unemployment Compensation Trust Fund. Such amounts of interest and penalties so cer-

tified for transfer shall be deemed to have been erroneously deposited in the clearing account and the transfer thereof to the Special Employment Security Administration Trust Fund shall be deemed to be a refund of such erroneous deposits. All moneys in this fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State Treasury. Said moneys shall not be expended or be available for expenditure in any manner which would permit their substitution for, or permit a corresponding reduction in, federal funds which would, in the absence of said moneys, be available to finance expenditures for the administration of the Unemployment Compensation Law. But nothing in this section shall prevent said moneys from being used as a revolving fund to cover expenditures, necessary and proper under the law, for which federal funds have been duly requested but not yet received, subject to the charging of such expenditures against such funds when received. The moneys in this fund, with the approval of the Department of Administration, shall be used by the division for the payment of costs of administration which are found not to have been properly and validly chargeable against funds obtained from federal sources. All moneys in the Special Employment Security Administration Trust Fund shall be continuously available to the division for expenditure in accordance with the provisions of this chapter and shall not lapse at any time. All payments from the Special Employment Security Administration Trust Fund shall be approved by the division or by a duly authorized agent thereof and shall be made by the Treasurer upon warrants issued by the Comptroller and countersigned by the Governor. The moneys in this fund are hereby specifically made available to replace, as contemplated by subsection (3), expenditures from the Employment Security Administration Trust Fund, established by subsection (1), which have been found by the . Bureau of Employment Security, or other authorized federal agency or authority, because of any action or contingency, to have been lost or improperly expended. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Special Employment Security Administration Trust Fund.

(3) REIMBURSEMENT OF FUND.-If any moneys received after June 30, 1941, from the Bureau of Employment Security under Title III of the Social Security Act, or any unencumbered balances in the Employment Security Administration Trust Fund as of that date, or any moneys granted after that date to this state pursuant to the provisions of the Wagner-Peyser Act, or any moneys made available by this state or its political subdivisions and matched by such moneys granted to this state pursuant to the provisions of the Wagner-Peyser Act, after reasonable notice and opportunity for hearing, are found by the Bureau of Employment Security, because of any action or contingency, to have been lost or been expended for purposes other than, or in amounts in excess of, those found necessary by the Bureau of Employment Security for the proper administration of this chapter, it is the policy of this state that such moneys shall be replaced by moneys appropriated

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for such purposes from the general funds of this state to the Employment Security Administration Trust Fund for expenditure as provided in subsection (1). Upon receipt of notice of such a finding by the Bureau of Employment Security, the division shall promptly report the amount required for such replacement to the Governor and the Governor shall at the earliest opportunity, submit to the Legislature a request for the appropriation of such amount. This subsection shall not be construed to relieve this state of its obligation with respect to funds received prior to July 1, 1941, pursuant to the provisions of Title III of the Social Security Act.

(4) EXEMPTION OF FUND FROM CERTAIN LAWS.-The Special Employment Security Administration Trust Fund provided for in subsection -(2) is hereby exempt from the application of any laws of the Legislature of 1949, other than this subsection, and specifically from the application or effect by the continuing appropriations law.

History.-s. 14. ch. 18402, 1937; s . 9, ch. 19637, 1939; CGL 1940 Supp. 4151 (501); s. 13, ch. 20685, 1941; s. 4, ch. 24084, 1947; s. 1, ch. 25206, 1949; s. 11, ch. 25035, 1949; ss. 10, 11, ch. 29771, 1955; s. 4, ch. 59-99; s. 2, ch. 61-119; ss. 17, 31, 35, ch. 69-106; s . 1, ch. 71-215.

443.15 Collection of contributions.(!) PAST DUE CONTRIBUTIONS.-(a) Interest.-Contributions unpaid on the date

on which they are due and payable shall bear interest at the rate of one-half percent per month from and after such date until payment plus accrued interest is received by the division. Interest collected pursuant to this subsection shall be paid into the Special Employment Security Administration Trust Fund.

(b) Penalty for delinquent reports.-1. Any employing unit which fails to file any re

ports required by the division in the administration of this chapter, in accordance with regulations adopted by the 1[division], shall pay to the division with respect to each such report the sum of $5 for each 30 days or fraction thereof that such employing unit is delinquent, unless the division finds that such employing unit has or had good reason for failure to file such report or reports.

2. Sums collected as penalties under the provisions of subparagraph 1. shall be deposited by the division in the Special Employment Security Administration Trust Fund.

(2) REPORTS, CONTRIBUTIONS, APPEALS.(a) Failure to make reports and pay contributions;

duty and power of division.-If any employing unit determined by the division to be an employer subject to the provisions of this chapter fails to make and file any report as and when required by the terms and provisions of this chapter or by any rule or regulation ofthe 1[division], for the purpose of determining the amount of contributions due by said employer under this chapter, or if any such report which has been filed is deemed by the division to be incorrect or insufficient, and such employer after having been given written notice, by registered or certified mail, by the division to file such report, or a corrected or sufficient report, as the case may be, shall fail to file such report within 15 days after the date of the mailing of such notice, the division may:

1. Determine the amount of contributions due from such employer on the basis of such information

as may be readily available to it, which said determination shall be deemed to be prima facie correct;

2. Assess such employer with the amount of contributions so determined; and

3. Immediately give written notice by registered or certified mail to such employer of such determination and assessment including penalties as provided in this chapter, if any, added and assessed, demanding payment of same together with interest as herein provided on the amount of contribution's from the date when same were due and payable.

Such determination and assessment shall be final at the expiration of 15 days from the date of the mailing of such written notice thereof demanding payment unless such employer shall have filed with the division a written protest and petition for hearing specifying the objections thereto. Upon receipt of such petition within the 15 days allowed the division shall fix the time and place for a hearing and shall notify the petitioner thereof. The division by regulation may appoint special deputies with full power to hold hearings hereunder, and to submit their findings together with a transcript of the proceedings before them and their recommendations to the division for its final decision and determination. At any hearing held before the division or its special deputy, as herein provided, evidence may be offered to support such determination and assessment or to prove that it is incorrect. Provided, however, that at such hearing the petitioner shall be required to show wherein that it is incorrect or else file full and complete corrected reports. Evidence may also be submitted at such hearing to rebut the determination by the division that the petitioner is an employer under the provisions of this chapter, and upon evidence taken before it or upon the transcript submitted to it with the findings and recommendation of its special deputy the division may set aside its determination that the petitioner is an employer under the provisions of this chapter or may reaffirm such determination. Any determination made by the division with reference to the status of an employer under the provisions of this subsection shall become final upon the mailing of notice of such determination by registered or certified mail to the last known address of such employer unless within the time prescribed by Florida Appellate Rules the employer shall have filed in the District Court of Appeal in the district in which the petitioner resides or in the District Court of Appeal for the First District of Florida a petition for writ of certiorari. Such review shall proceed in the same manner as provided for a review of decisions of the 2[board] under s. 443.07(4)(e). The amounts assessed pursuant to a final determination by the division hereunder together with interest and penalties shall be paid within 15 days after notice of such final decision and assessment and demand for payment thereof by the division shall have been mailed to such employer, unless judicial review is instituted under the provisions hereof in cases of status determinations. Amounts due when the status of the employer is in dispute shall be payable within 15 days of the entry of an order by the district appellate court affirming such determination. However, any determination by the division that an em-

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ploying unit is not an employer under the provisions edged before any notary or other public officer and of this chapter shall not affect the benefit rights of the seal of the division together with the signature any individual as determined by an appeals referee of the director shall be conclusive evidence of the or the 2[board], under the provisions of this chapter, satisfaction of said lien, which satisfaction shall be unless such individual shall have been made a party recorded by the Clerk of the Circuit Court who shall to the proceedings before the division by registered receive fees for such services as may be fixed by law or certified notice served upon him at least 10 days for the recording of instruments generally. before the holding of any hearing hereunder, or un- 2. The division may thereafter issue a warrant less such determination of the 2[board] or appeals directed to all and singular sheriffs in the State of referee shall not have become final or the employing Florida, commanding them to levy upon and sell any unit and the division shall not have been made par- real or personal property of the employer liable for ties to the proceedings before the appeals referee or any amount under this law within their respective the 2[board]. jurisdictions, for the payment of the amount thereof,

(b) Appeals.-Subject to the foregoing provisions with the added penalties, interest and the costs of of this subsection, the 1[division] shall by regulation executing the warrant, together with costs of the prescribe the manner pursuant to which an employ- Clerk of the Circuit Court in recording and docketing ing unit which has been determined to be an "em- the notice oflien, and to return such warrant to the ployer" may file an appeal and be afforded an oppor- division and to pay to it the money collected by vir-tunity for a hearing on such determination. tue thereof; such warrant shall issue and be enforced

(3) COLLECTION PROCEEDINGS.- for all amounts due the division as of the date of (a) Lien for payment of contributions.- issuance thereof, together with interest accruing on 1. There is hereby created a lien in favor of the the contribution amount due from said employer to

division upon all the property both real and personal the date of payment at the rate provided herein; of any employer who shall become liable for the pay- provided, that in the event of sale of any assets of the ment of any contribution levied and imposed upon it employer, priorities under said warrant shall be deby this law for the amount of the contributions due termined in accordance with the priority established and payable under the provisions hereof, together by the notice or notices of lien filed by the division with interest, costs and penalties; and if any contri- and recorded by the Clerk of the Circuit Court. The bution imposed by this chapter or any portion of sheriff shall proceed upon said warrant in all resuch contribution or interest or penalty be not paid spects with like effect and in the same manner prewithin 60 days after the same becomes delinquent scribed by law in respect to executions issued out of the division may thereafter issue a notice of lien the office ofthe Clerk ofthe Circuit Court uponjudgunder its official seal, which notice of lien may be ments of the circuit court and the sheriff shall be filed in the office of the Clerk of the Circuit Court of entitled to the same fees for his services in executing any county in which the delinquent employer owns the warrant as under a writ of execution out of the property or has conducted business, and which no- Circuit Court, said fees to be collected in the same tice of lien shall set forth the periods for which the manner. contributions, interest or penalties are demanded (b) Injunction-procedures to contest warrants and the amounts thereof, copy of which notice oflien after issuance.-No writ of injunction or restraining shall be mailed to the employer at his last known order to stay the execution of such warrant shall address by registered mail. Provided, that notice of issue until a bill praying therefor shall have been lien may be issued and recorded at the expiration of filed and reasonable notice of hearing of motion for 15 days from the date assessment becomes final unsuch injunction has previously been served on the der the provisions of subsection (2). Upon present'a- division, nor unless the party applying therefor shall tion of said notice of lien the Clerk of the Circuit have previously tendered and paid into the custody Court shall record same in a book maintained by him of the court the full amount of contributions, interfor that purpose, and thereupon the amount of said ests, costs and penalties claimed in such warrant or notice oflien, together with the cost of recording and entered into and filed in said court a bond with two interest accruing upon the contribution amount, or more good and sufficient sureties approved by the shall become a lien upon the title to and interest, court in a sum at least double the amount of such whether legal or equitable, in any real property, contributions, interests, costs and penalties, payable chattels real, or personal property of such employer to the division, and conditioned to pay the amount of against whom such notice of lien is issued, in the such warrant, interest thereon, and such damages as same manner as a judgment of the Circuit Court may be occasioned by the wrongful issuing of said duly docketed in the office of such Circuit Court injunction, if the said injunction shall be dissolved, clerk with execution duly issued thereon and in the or the bill upon which it may be granted be dishands of the sheriff for levy; and such lien shall be missed. Only one surety shall be required when such prior, preferred and superior to all mortgages or oth- bond is executed by a lawfully authorized surety er liens filed, recorded, or acquired subsequent to the company as surety thereon. time such notice oflien shall have been filed. Upon (c) Attachment and garnishment.-Upon the filthe payment of the amounts due thereunder, or upon ing of notice of lien as provided in subparagraph determination by the division that such notice oflien (a)l., the division shall be entitled to remedy by atwas erroneously issued, the same may be satisfied of tachment or garnishment as provided in chapters 76 record by the division by an acknowledgment under and 77, as for a debt due and upon application by the the seal of the division that such lien has been fully division such writs shall issue out of the office ofthe satisfied. Such satisfaction need not be acknowl- Clerk of the Circuit Court as upon a judgment of the

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Circuit Court duly docketed and recorded, and such writs shall be made returnable to the Circuit Court. Provided, however, that no bond shall be required of the division as a condition precedent to the issuance of said writs of attachment or garnishment. Issues raised under proceedings by attachment or garnishment shall be tried by the Circuit Court as upon a judgment thereof in the manner provided in chapters 76 and 77. Provided, further, that said notice of lien filed by the division shall be of full force and effect for the purposes of all remedies provided for in this chapter until satisfied as provided in this chapter, and no revival by scire facias or other proceedings shall be necessary prior to the pursuit of any remedy herein provided for, and proceedings authorized as upon a judgment of the Circuit Court shall not be construed as making of said lien a judgment of the Circuit Court upon a debt for any purpose except as herein specifically set forth as procedural remedies only.

(d) Third party claims.-Upon any levy made by the sheriff under the authority of a writ of attachment or garnishment as provided in paragraph (c) third party claims to property involved shall be tried by the Circuit Court as upon a judgment thereof and all proceedings shall be authorized on such third party claims as provided in ss. 56.16, 56.20, 76.21 and 77.16.

(e) Proceedings supplementary to execution.-At any time after a warrant provided for in subparagraph (a)2. shall have been in the hands of any sheriff of this state and returned unsatisfied the division may make and file an affidavit in the Circuit Court affirming such fact and also that said warrant is valid and outstanding and also stating the residence of the party or parties against whom the warrant has been issued, and the division shall thereupon be entitled to have other and further proceedings in the Circuit Court as upon a judgment thereof as provided in s. 56.29.

(f) Photostats.-In any proceedings in any court under this chapter photostats of original records or microfilm copies of records of the Division of Employment Security or the 2[board] shall be primary evidence in lieu of the originals of said records or of the documents which have been transcribed into such records.

(g) Jeopardy assessment and warrant.-If the division has just cause to believe and does believe that the collection of contributions from an employer will be jeopardized by delay it may assess such contributions immediately, together with interest or penalties when due, whether or not contributions accrued have become due, and may immediately issue a notice of lien and jeopardy warrant upon which proceedings may be had as herein provided for notice of lien and warrant of the division. Within 15 days from the mailing of such notice of lien by registered mail the employer against whom such notice of lien and warrant is issued may protest the issuance thereof in the same manner provided in paragraph (a) and further proceedings shall be had upon said protest as therein provided. Such protest shall not operate as a supersedeas or stay of enforcement proceedings until and unless the employer shall have filed with the sheriff seeking to enforce the warrant

of the division a good and sufficient surety bond in twice the amount demanded by said notice of lien or warrant conditioned upon payment of the amount subsequently found to be due from the employer to the division by final determination of the division upon protest of assessment. Said jeopardy warrant and notice oflien shall be satisfied by the division in the manner heretofore provided upon payment of the amount finally determined to be due from said employer. In the event enforcement of said jeopardy warrant is not superseded as hereinabove provided the employer shall be entitled to a refund from the fund of all amounts paid as contributions in excess of the amount finally determined to be due by said employer upon application being made as provided in this chapter.

(4) MISCELLANEOUS PROVISIONS FOR ENFORCEMENT OF COLLECTION OF CONTRIDUTIONS.-

(a) Independently of all other remedies and proceedings authorized by this law for the enforcement of and the collection of contributions hereby levied, a right of action by suit in the name of the division is hereby created. Suit may be maintained and prosecuted, and all proceedings taken, to the same effect and extent as for the enforcement of a right of action for debt or assumpsit, and any and all remedies available in such actions including attachment and garnishment shall be available to the division for the collection of any contribution accruing hereunder; provided that the division shall not be required to post bond in any such action or proceedings; and providing further that nothing herein contained shall be construed as making of said contributions a debt or demand unenforceable against homestead property provided by Article X of the Constitution of the State, the above remedies being procedural only.

(b) Any employer failing to make return or to pay the contributions levied under this chapter, and who has not ceased to be an employer as provided in s. 443.09 hereof, may be enjoined from employing individuals in employment as defined in this chapter upon the complaint of the division in the Circuit Court of the county in which said employer may be doing business; and such employer so failing to make .return or to pay contributions levied hereunder shall be enjoined from employing individuals in employment until such return shall have been made and the contributions shown to be due thereunder paid to the division.

(c) The division or any agent or employee whom it may designate shall have the power to administer an oath to any person in respect to any return or report required by this law or by the rules and regulations of the 1[division] and such oath made before the division or any authorized agent or employee shall have the same efficacy as an oath made before any judicial officer or notary public of the state.

(d) Civil actions brought under this chapter to collect contributions and interest thereon, or any proceeding had herein for the collection of contributions from an employer shall be heard by the court having jurisdiction thereof at the earliest possible date, and shall be entitled to preference upon the calendar of said court over all other civil actions except petitions for judicial review of claims for ben-

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efits arising under this chapter and cases arising under the Workmen's Compensation Law of this state.

(e) The division is hereby authorized to commence action in any other state by and in the name of the division to collect unemployment compensation contributions, penalties and interest legally due this state. The officials of other states which extend a like comity to this state are authorized to sue for the collection of such contributions, interest and penalties in the courts of this state. The courts of this state shall recognize and enforce liability for such contributions, interest, and penalties imposed by other states which extend a like comity to this state.

(f) The collection of any contribution, interest and penalty otherwise due under this chapter shall not be enforceable by civil action, warrant, claim or other means unless within 5 years from the date upon which such contribution, interest and penalty became due and payable as provided by law and by regulations of the 1[division], a notice of lien with respect to such contribution, interest and penalty was filed for record with a clerk of a Circuit Court as provided in subsection (3).

(5) PRIORITIES UNDER LEGAL DISSOLUTION OR DISTRIBUTIONS.-In the event of any distribution of any employer's assets pursuant to an order of any court under the laws of this state, including any receiverships, assignment for benefit of creditors, adjudicated insolvency, composition, administration of estates of decedents, or any other similar proceeding, contributions then or thereafter due shall be paid in full prior to all other claims except claims for wages of not more than $250 to each claimant, earned within 6 months of the commencement of the proceeding, and on a parity with all other tax claims wherever such tax claims shall

the date of payment of any amount as contributions, interest or penalties, an employing unit who has paid such contributions, interest or penalties shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the division shall determine that such contributions or interest or penalties or any portion thereof was erroneously collected, the division shall allow such employer to make an adjustment thereof without interest in connection with subsequent contribution payment by him, or if such adjustment cannot be made, the division shall refund said amount, without interest, from the fund. For like cause, and within the same period, adjustment or refund may be made on the division's own initiative. Provided, however, that nothing in this chapter shall be construed to authorize a refund of contributions which were properly paid in accordance with the provisions of this chapter at the time of such payment, except as required by s. 443.03(5)(1)7.; provided further that refunds under this subsection and under s. 443.03(5)(1)7. may be paid from either the clearing account or the benefit account of the Unemployment Compensation Trust Fund and from the Special Employment Security Administration Trust Fund with respect to interest or penalties which have been previously paid into such fund, provisions ofs. 443.10(2) to the contrary notwithstanding.

History.-8. 15, ch. 18402, 1937; 8. 10, ch. 19637, 1939; CGL 1940 Supp. 4151(502); 8. 14, ch. 20685, 1941; 8. 5, ch. 21982, 1943; 8. 5, ch. 24084, 1947; 8. 11, ch. 25035, 1949; 8. 9, ch. 26879, 1951; s. 12, ch. 28242, 1953; s. 12, ch. 29771, 1955; s. 3, ch. 57-268; s. 24, ch. 57-1; s. 2, ch. 61-119; s. 3, ch. 61-228; s. 4, ch. 65-114; ss. 17, 35, ch. 69-106; s. 11, ch. 71-225; s. 1, ch. 73-283; 8. 26, ch. 73-334; s. 1, ch. 77-174.

'Note.-See note 1 followings. 443.03. 'Note.-'See note 2 following s. 443.06.

cf.-s. 1.01 Defines registered mail to include certified mail with return receipt requested.

have been given priority. In the administration of 443.16 Waiver of rights; fees; privileged com-the estate of any decedent the filing of notice of lien munications.-shall be deemed a proceeding required upon protest (1) WAIVER OF RIGHTS VOID.-Any agreeof the claim filed by the division for contributions ment by an individual to waive, release, or commute due under this chapter and such claim shall be al- his rights to benefits or any other rights under this lowed by the Circuit Judge. Provided, however, that chapter shall be void. Any agreement by an individuthe personal representative of the decedent may by al in the employ of any person or concern to pay all petition to the Circuit Court object to the validity of or any portion of any employer's contributions, rethe claim of the division and proceedings shall be quired under this chapter from such employer, shall had in the Circuit Court for the determination of the be void. No employer shall directly or indirectly validity of the claim of the division, and, provided make or require or accept any deduction from wages further, that the bond of the personal representative to finance the employer's contributions required shall not be discharged until such claim is finally from him, or require or accept any waiver of any determined by the Circuit Court, and where no bond right hereunder by any individual in his employ. has been given by the personal representative none Any employer or officer or agent of an employer who of the assets of said estate shall be distributed until violates any provision of this subsection shall be guilsuch final determination by the Circuit Court; and, ty of a misdemeanor of the second degree, punishaprovided, further, that upon distribution of the as- ble as provided in s. 775.082 or s. 775.083. sets of the estate of any decedent the claim of the (2) FEES.-division shall have priority established in subsection (a) No individual claiming benefits shall be (l)(e) class five of s. 733.20, subject to the above limi- charged fees of any kind in any proceeding under tations with reference to wages. In the event of any this chapter by .the 1[board] or division or their repreemployer's adjudication in bankruptcy, judicially sentatives, or by any court or any officer thereof, confirmed extension proposal, or composition, under except as hereinafter provided. Any_ individual the Federal Bankruptcy Act of 1898, as amended, claiming benefits in any proceeding before the contributions then or thereafter due shall be entitled 1[board] or division, or representatives of either, or a to such priority as is provided ins. 64B of that act (U. court may be represented by counsel or duly author-S. C. Title II, s. 104(b), as amended). ized agent, but no such counsel or agent shall either

(6) REFUNDS.-If not later than 4 years after charge or receive for such services more than an

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amount approved by the '[board] or division or by the court.

(b) An attorney at law representing a claimant for benefits in any district court of appeal of this state or in the Supreme Court of Florida shall be entitled to counsel fees payable by the division as fixed by the court in either of the following cases:

1. Where petition for review or appeal is initiated by any party to such proceeding other than the claimant, or

2. Where such petition for review or appeal is initiated by the claimant and results in a decision awarding more benefits than did the decision under review or from which appeal was taken.

(c) Attorneys' fees awarded under this section shall be paid by the division out of employment security administration funds as a part of the costs of administration of this chapter and may be paid directly to the attorney for the claimant in a lump sum.

(d) Any person, firm or corporation who or which seeks or receives any remuneration or gratuity for any services rendered on behalf of a claimant, except as allowed by this section and in an amount approved by the 2[division] or 3 [board] or by a court, shall be guilty of a misdemeanor. Any person, firm or corporation who or which shall solicit the business of appearing on behalf of a claimant, or shall make it a business to solicit employment for another in connection with any claim for benefits under this chapter, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) PRIVILEGED COMMUNICATIONS.-All letters, reports, communications, or any other matters, either oral or written, from the employer or employee to each other or to the division or any of its agents, representatives or employees which shall have been written, sent, delivered, or made in connection with the requirements and administration of this chapter, shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court of the state.

History.-s. 16, ch. 18402, 1937; s. 11, ch. 19637, 1939; CGL 1940 Supp. 4151(503), 8135(42)-(44); s. 15, ch . 20685, 1941; s. 10, ch. 26879, 1951; s. 4, ch. 57-268; ss. 17, 35, ch. 69-106; s. 371, ch. 71-136.

'Note.-See note 2 followings. 443.06. 'Note.-See note 1 following s. 443.03. 'Note.-Bracketed word inserted by the editors to conform to s. 443.16(2)(a).

443.17 Benefits not alienable.-Benefits due under this chapter shall not be assigned, pledged, encumbered, released, or commuted and shall, except as otherwise provided in this chapter, be exempt from all claims of creditors and from levy, execution or attachment, or other remedy for recovery or collection of a debt, which exemption may not be waived.


deemed to be services performed entirely within any one of the states:

1. In which any part of such individual's service is performed, or

2. In which such individual has his residence, or 3. In which the employing unit maintains a place

of business,

provided there is in effect as to such services an election, approved by the agency charged with the administration of such state's Unemployment Compensation Law, pursuant to which all the services performed by such individual for such employing unit are deemed to be performed entirely within such state;

(b) The division shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with his wages and employment covered under the unemployment compensation laws of other states, which are approved by the United States Secretary of Labor, in consultation with the state unemployment compensation agencies, as reasonably calculated to assure the prompt and full payment of compensation in such situations and which include provisions for:

1. Applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws, and

2. Avoiding the duplicate use of wages and employment by reason of such combining.

(c) Contributions due under this chapter with respect to wages for insured work shall for the purposes ofss. 443.08 and 443.15 be deemed to have been paid to the fund as of the date payment was made as contributions therefor under another state or federal unemployment compensation law, but no such arrangement shall be entered into unless it contains provisions for such reimbursement to the fund of such contributions and the actual earnings thereon as the division finds will be fair and reasonable as to all affected interests.

(2) The division is authorized to make to other state or federal agencies and to receive from such other state or federal agencies reimbursements from or to the fund, in accordance with arrangements entered into pursuant to subsection (1).

(3) The administration of this chapter and of other state and federal unemployment compensation and public employment service laws will be promoted by cooperation between this state and such other states and the appropriate federal agencies in exchanging services, and making available facilities and information. The division is therefore authorized to make such investigations, secure and transmit such information, make available such services and facilities and exercise such of the other powers

443.18 Reciprocal arrangements.- provided herein with respect to the administration (1)(a) The division is hereby authorized to enter of this chapter as it deems necessary or appropriate

into reciprocal arrangements with appropriate and to facilitate the administration of any such unemduly authorized agencies of other states or of the ployment compensation or public employment serFederal Government, or both, whereby services per- vice law, and in like manner, to accept and utilize formed by an individual for a single employing unit information, services and facilities made available to for which services are customarily performed by this state by the agency charged with the adminissuch individuals in more than one state shall be tration of any such other unemployment compensa-

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