Read on to learn more about stop work orders and how they can affect you business.
Who Issues Them?
The Florida Department of Financial Services
Florida State Agency under direction of Chief Financial Officer
Authority granted under Florida Statute 440.107;
Florida Statute 440.107 Pertinent Provisions
The Legislature finds that the failure of an employer to comply with the workers’ compensation coverage requirements under this chapter poses an immediate danger to public health, safety, and welfare.
The department shall enforce workers’ compensation coverage requirements, including the requirement that the employer secure the payment of workers’ compensation, and the requirement that the employer provide the carrier with information to accurately determine payroll and correctly assign classification codes.
The department shall have the power to:
1. Conduct investigations for the purpose of ensuring employer compliance
2. Enter and inspect any place of business at any reasonable time for the purpose of investigating employer compliance
3. Examine and copy business records
4. Issue and serve subpoenas for attendance of witnesses or production of business records, books, papers, correspondence, memoranda, and other records
5. Issue stop-work orders, penalty assessment orders, and any other orders necessary for the administration of this section
6. Enforce the terms of a stop-work order
7. Levy and pursue actions to recover penalties
8. Seek injunctions and other appropriate relief
9. Specify by rule the business records that employers must maintain and produce to comply with this section
10. Adopt rules to administer this section
Worksite for purposes of this rule means a place in Florida where an employer conducts business operations. Upon service of a stop work order on an employer, the stop work order shall be effective upon all employer worksites in the state for which the employer is not in compliance.
The worksites for which an employer is not in compliance shall be determined as follows:
1. If the employer failed to meet the coverage requirements of Chapter 440, F.S., all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for all the employers worksites requiring the cessation of all business operations for such employer in the state.
2. If an out-of-state employer that is required to provide workers compensation coverage for employees engaged in work in Florida failed to obtain or maintain a Florida policy or endorsement that utilizes Florida class codes, rates, rules, and manuals all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for all the employers worksites requiring the cessation of all business operations for such employer in the state.
3. If the employer failed to produce the required business records within five business days after receipt of the written request of the department, all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for all the employers worksites requiring the cessation of all business operations for such employer in the state.
4. If the employer has materially understated or concealed payroll, all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for all the employers worksites requiring the cessation of all business operations for such employer in the state.
5. If the employer materially misrepresented or concealed employee duties so as to avoid proper classification for premium calculations, all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for all the employers worksites requiring the cessation of all business operations for such employer in the state.
6. If the employer materially misrepresented or concealed information pertinent to the computation and application of an experience modification factor, all worksites of the employer in the state are not in compliance and the stop work order shall be in effect for the employers worksites requiring the cessation of all business operations for such employer in the state.
7. If the employer is a contractor that sublets any work at a particular worksite to a subcontractor and the contractor and subcontractor each failed to secure the payment of compensation for the subcontractor or the employees of the subcontractor engaged in work at the particular worksite, then a stop-work order issued to the contractor shall require the cessation of all business operations of the contractor at that particular worksite.
What Records Will be Requested?
Every employer shall maintain employment records pertaining to every person to whom the employer paid or owes remuneration for the performance of any work or service in connection with any employment (Where remuneration is paid or owed on an hourly basis, the record shall indicate the day, month, and year of work or service and the number of hours worked by the person during each pay period. Where remuneration is paid or owed on any basis other than hourly, the record shall specify the basis, such as competitive bid, piece rate, or task, and indicate the day, month, and year, when remuneration was earned).
In addition, every employer shall maintain the following records for each such person:
1. All checks or other records provided to the person for salary, wage, or earned income
2. All Form 1099 Miscellaneous Income and Form W-2 Wage and Tax Statements issued to the person
3. All written contracts or agreements between the employer and the person that describe the terms of employment
4. All employment and unemployment reports filed pursuant to Florida law
• Tax records. Every employer shall maintain all forms, together with supporting records and schedules, filed with the Internal Revenue Service
• Account records. Every employer shall maintain monthly, quarterly, or annual statements for all open or closed business accounts established by the employer or on its behalf with any credit card company or any financial institution, such as bank, savings bank, savings and loan association, credit union, or trust company
• Disbursements. Every employer shall maintain a journal of its check and cash disbursements as well as a copy of each cashiers check, bank check, and money order, indicating chronologically the disbursement date, to whom the money was paid, the payment amount, and the purpose
• Subcontractor invoices. Every employer shall maintain all invoices received from a subcontractor for work or service performed by the subcontractor for the employer
• Every employer shall maintain all workers compensation insurance policies obtained by the employer and all endorsements, declaration pages, certificates of workers compensation insurance, notices of cancellation, notices of non-renewal, or notices of reinstatement of such policies.
• Every employer shall maintain all premium audit documents provided by the workers compensation carrier to the employer and all premium self-audits, together with supporting documentation.
• Every contractor shall maintain evidence of workers compensation insurance of every subcontractor and for every subcontractor that has an officer or a member who elects to be exempt from the coverage requirements of the workers compensation law the contractor shall maintain a valid certificate of election to be exempt.
Contracts: Each employer shall maintain complete executed written contracts between it and a general contractor, subcontractor, independent contractor, or employee leasing company and – any records that establish the statutory elements of independent contractor.
• An employer under the workers compensation law shall maintain the records specified in this rule for the current calendar year to date and for the preceding three calendar years.
• An employer shall maintain the records specified in this rule at the corporate registered office, principal place of business, or job site in Florida.
What is Considered Payroll?
• Wages or salaries paid to employees
• Payments, including cash payments, made to employees
• Payments, including cash payments, made to a third person
• Payments made to employees on any basis other than time worked, such as piecework, profit sharing, dividends, income distributions, or incentive plans
• Expense reimbursements to the extent that the employers business records do not confirm that the expense was incurred as a valid business expense
• Loans made to employees to the extent that such loans have not been repaid to the employer
• Payments or allowances made by or on behalf of the employer to employees for tools or equipment used by employees in their work or operations for the employer
• Total contract price of a service provided by the employer, excluding the cost for materials however, in the event the costs for materials cannot be separately identified in the total contract price, eighty percent of the total contract price shall be the employers payroll
• Income listed in Form 1099 Miscellaneous Income excluding the cost of materials however, if contract is not clear the entire amount of the income listed on the Form 1099 Miscellaneous Income shall be included in the employer’s payroll
How is the Penalty Calculated?
The department shall assess against any employer who has failed to secure the payment of compensation a penalty equal to 1.5 times the amount the employer would have paid when applying manual rates during periods for which it failed to secure the payment of workers’ compensation within the preceding 3 year period or $1,000, whichever is greater.
Formula – Payroll\100 x class code rate x 1.5 over the last three years.
In addition, when an employer fails to provide business records for penalty calculation purposes, the imputed weekly payroll for each employee shall be the statewide average weekly wage multiplied by 1.5.
Release of the Stop Work Order
The Stop Work Order shall remain in effect until the department issues an order releasing the stop-work order upon a finding that the employer has come into compliance with the coverage requirements and has paid any penalty assessed.
Employer may obtain an order of conditional release from a stop-work order upon a finding of compliance with coverage requirements and agreement to remit periodic payments of the penalty pursuant to a payment agreement schedule with the department.
To obtain a conditional release must make payment in the greater amount of $1,000 or 10% of the total payment and agree to pay the remainder in up to sixty consecutive monthly installments.
Any penalty due pursuant to the service of a stop-work order shall, until collected, constitute a lien upon the entire interest of the employer, legal or equitable, in any property, real or personal.
If the employer is a corporation, parties in actual control of the corporation, including, but not limited to, the president, officers who exercise broad corporate powers, directors, and all shareholders who directly or indirectly own a controlling interest in the corporation, are considered the employer.
Stop-work orders and penalty assessment orders shall be in effect against any successor corporation or business entity that has one or more of the same principals or officers as the corporation or partnership against which the stop-work order was issued and are engaged in the same or equivalent trade or activity.
Violate a Stop Work Order
The department shall assess a penalty of $1,000 per day against an employer for each day that the employer conducts business operations that are in violation of a stop-work order (unclear paying workers to sit at home, answer phones, etc.)
Any law enforcement agency in the state may render any assistance necessary to carry out the provisions of this section, including preventing any employee or other person from remaining at a place of employment or job site.
It shall be unlawful for any employer to:
• Knowingly fail to secure workers’ compensation insurance coverage if required to do so.
• Make any false, fraudulent, or misleading oral or written statement, or to omit or conceal material information for the purpose of avoiding, delaying, or diminishing the amount of payment of any workers’ compensation premiums.
• Misrepresent or conceal payroll, classification of workers, or information regarding an employer’s loss history for the purpose of avoiding or diminishing the amount of payment of any workers’ compensation premiums.
• Present or cause to be presented any false, fraudulent, or misleading oral or written statement as evidence of eligibility for a certificate of exemption.
• Violate a stop-work order issued by the department.
• Any subsequent violation within 5 years after the most recent violation shall be deemed a knowing act