Unemployment Insurance Law Summaries
10-1700Florida, Unemployment Insurance Law SummariesFlorida's unemployment insurance law is located in Chapter 443, Florida Statutes, 1981, as amended, Secs. 443.01 to 443.1715; and in the Regulations and Rules Under the Florida Unemployment Compensation Law, Regulations 38B-2.021 to 38E-5.027. The full text of the law is available at Unemployment Insurance Reports UI-FL 4001 .
DEFINITIONS
"Employer" means one who employs at least one individual for some portion of a day in each of 20 different calendar weeks in either the current or the preceding calendar year, or payment of $1,500 or more in any calendar quarter in either the current or preceding calendar year. Generally, an employer subject to the FUTA is automatically an employer under the Florida law.
"Employment:" Service, including service in interstate commerce and as a corporation officer, performed as an employee for the employer, with exceptions listed below. Note that members of a limited liability company, which is classified as a corporation for federal income tax purposes, who perform services for the corporation, are considered its employees.
Services by certain agent-drivers or commission drivers and traveling or city salespersons are covered.
Generally, services are employment if federal unemployment tax is payable thereon.
Agricultural and domestic employers. --Agricultural labor is covered if performed for an employer who employed five or more workers in such labor in each of 20 different weeks in the current or preceding calendar year or who paid cash remuneration of $10,000 or more for such service in any quarter of the current or preceding calendar year. When agricultural labor is supplied by a crew leader, the employing unit for which the services are performed is the employer of the crew members unless the crew leader is registered under the Migrant and Seasonal Agricultural Worker Protection Act of 1983, or substantially all of the crew members operate or maintain mechanized equipment that is provided by the crew leader. In either of these instances, the crew leader is the employer. Services performed prior to 1/1/95 by certain aliens are excluded; note that if services performed in agricultural labor by aliens are excluded by federal law, they will also be excluded by Florida law (Sec. 443.036(19)).
Domestic service. --Domestic service in a private home, local college club or local chapter of a college fraternity or sorority is covered if performed for an employing unit that paid wages of $1,000 or more for such services in any quarter of the current or preceding calendar year.
Government and nonprofit employers. --Services for tax-exempt nonprofit organizations employing four or more individuals for some portion of a day in each of 20 different weeks within either the current or preceding calendar year are covered.
Services for state hospitals and institutions of higher education, services for the state or any of its wholly owned instrumentalities and services for political subdivisions of the state, are covered.
Services in the employment of Indian tribes, tribal units and their subsidiaries are also covered.
"Wages:" Remuneration paid for services from whatever source, including commissions, bonuses, back pay, and cash value of all remuneration paid in any medium other than cash, except in the case of meals and lodging provided to employees for the employer's convenience. "Wages" includes tips or gratuities that are received while performing services that constitute employment and are included in a written statement furnished to the employer pursuant to IRC Sec. 6053(a). Sickness and accident disability payments are generally considered wages unless paid under a workers' compensation law. Vacation pay is taxable at the time it is received. Exceptions from wages are listed below.
COVERAGE
Generally, an employer subject to the FUTA is automatically an employer under the Florida law.
Service, including service in interstate commerce and as a corporation officer, performed as an employee for the person employing him, with exceptions listed below.
Services by certain agent-drivers or commission drivers and traveling or city salesmen are covered.
Generally, services are employment if federal unemployment tax is payable thereon.
Agricultural and domestic employers. --Agricultural labor is covered if performed for an employer who employed five or more workers in such labor in each of 20 different weeks in the current or preceding calendar year or who paid cash remuneration of $10,000 or more for such service in any quarter of the current or preceding calendar year. When agricultural labor is supplied by a crew leader, the employing unit for which the services are performed is the employer of the crew members unless the crew leader is registered under the Migrant and Seasonal Agricultural Worker Protection Act of 1983, or substantially all of the crew members operate or maintain mechanized equipment that is provided by the crew leader. In either of these instances, the crew leader is the employer. Services performed prior to 1/1/95 by certain aliens are excluded.
Domestic service. --Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority is covered if performed for an employing unit that paid wages of $1,000 or more for such services in any quarter of the current or preceding calendar year.
Government and nonprofit employers. --Services for tax-exempt nonprofit organizations employing four or more individuals for some portion of a day in each of 20 different weeks within either the current or preceding calendar year are covered.
Services for state hospitals and institutions of higher education, services for the state or any of its wholly owned instrumentalities and services for political subdivisions of the state, are covered.
Services in the employment of Indian tribes, tribal units and their subsidiaries are also covered.
EXCEPTIONS
Wages. --The term "wages" does not include the following:
(1) Remuneration over $7,000 paid by employer to individual during any calendar year. Wages for services in another state and wages paid by predecessor may be included in first $7,000. Amount will be increased if federal taxable wage base is increased to an amount over Florida's limit.
(2) Payments by employer to, or on behalf of, individuals in its employ under plan or system established on account of medical and hospitalization expenses, or death.
(3) Payment of employees' FICA tax without deduction from wages.
(4) Sickness or accident disability payment or medical or hospitalization expenses in connection with sickness or accident disability made by an employer to an individual performing services for it after the expiration of six calendar months following the last month in which the individual worked.
(5) Any payment made to or on behalf of an individual or the individual's beneficiary from or to a trust described in IRC Sec. 401(a), unless such payment is made to an employee of the trust as remuneration for services rendered and not as a beneficiary of the trust.
(6) Payments under or to an annuity plan that at the time of payment is a plan described in IRC Sec. 403(a).
(7) Payments under a simplified employee pension if, at the time of payment, it is reasonable to believe that the employee will be entitled to a deduction under IRC Sec. 219(b)(2) for such payment.
(8) Payment or benefit that it is reasonable to believe that the individual will be able to exclude under IRC Sec. 127.
(9) Payments under or to an annuity contract described in IRC Sec. 403(b), other than a payment for the purchase of such contract that is made by reason of a salary reduction agreement.
(10) Payments under or to an exempt governmental deferred compensation plan as described in IRC Sec. 3121(v)(3).
(11) Payments made under a cafeteria plan if the payments would not be treated as wages without regard to the plan and it is reasonable to believe that, if Sec. 125 of the Internal Revenue Code applied for purposes of this provision, that section would not treat any wages as constructively received (Sec. 443.036(33)).
(12) If two or more related corporations concurrently employ the same individual and compensate the individual through a common paymaster, each related corporation is considered to have paid as wages to the individual only the amounts actually disbursed by it to the individual and is not considered to have paid as wages any amounts actually disbursed to the individual by another of the corporations (Sec. 443.036(19)).
Employment. --The term "employment" does not include the following:
(1) Aircraft employees on non-American aircraft outside the U.S.
(2) Barbers employed solely on commission basis.
(3) Service not in the course of employer's trade or business and which does not exceed 200 man-hours in duration.
(4) Fishing and farming of fish, crustacea, sponges, seaweeds and other forms of aquatic animal and vegetable life, except (a) salmon and halibut fishing for commercial purposes, and (b) service on vessels of more than 10 net tons engaged in such activities.
(5) Insurance agents wholly on commission.
(6) Interns in employ of hospital who have completed four-year course in state-chartered or approved medical school.
(7) Maritime employees on other than American vessels.
(8) Newspaper and shopping news carriers under 18 years of age.
(9) Nonresident alien for the period that he or she is temporarily present in the U.S. as a nonimmigrant under the Immigration and Nationality Act or an alien admitted to the U.S. to perform service in agricultural labor.
(10) Organizations exempt from income tax, with respect to service performed in calendar quarter if remuneration does not exceed $50.
(11) Real estate salespersons on commission.
(12) Relatives, i.e., service performed by individual in employ of son, daughter, or spouse, or by child under 18 in employ of parent.
(13) Service covered by federal unemployment compensation system.
(14) Service performed in employ of school, college, or university if performed by student enrolled in and regularly attending classes at such institutions. Service by a student enrolled at a nonprofit or public educational institution in a full-time work-study program. This exemption is not applicable to a program established for an employer or a group of employers.
(15) Student nurses in employ of hospital or training school who are attending state-chartered or approved training school.
(16) Service for a hospital by a patient of the hospital.
(17) Speech, occupational and physical therapists who are nonsalaried and working pursuant to a written contract with a home health agency.
(18) Direct sellers engaged in the trade or business of selling or soliciting the sale of consumer products to buyers on a buy-sell, deposit-commission or similar basis for resale in the home or any place other than a permanent retail establishment, if the remuneration for the services is directly related to sales or other output and not to number of hours worked and there is a contract providing that such individuals will not be treated as employees for federal tax purposes.
(19) Services performed by an individual for remuneration for a private, for-profit delivery or messenger service if the individual (1) is free to accept or reject jobs from the service, which has no control over when the individual works; (2) is remunerated for each delivery or the remuneration is based on factors that relate to the work, including receipt of a percentage of any rate schedule; (3) pays all expenses and the opportunity for profit or loss rests solely with the individual; (4) is responsible for operating costs, including fuel, repairs, supplies, and motor vehicle insurance; (5) determines the method of performing the service, including selection of routes and order of deliveries; (6) is responsible for the completion of a job and is liable for any failure to complete it; (7) enters into a contract with the service that specifies that the individual is an independent contractor; and (8) provides the vehicle used to perform the service.
Notwithstanding above provisions, generally, services are employment if federal unemployment tax is payable thereon.
Agricultural and domestic employers. --Services performed prior to 1/1/95 by certain aliens are excluded. Note that if services performed in agricultural labor by aliens are excluded by federal law, they will also be excluded by Florida law.
Government and nonprofit employers. --The following services for the state or its political subdivisions are excluded:
(1) elected officials;
(2) members of a legislative body or the judiciary;
(3) temporary employees serving in case of fire, storm, snow, earthquake, flood or similar emergency;
(4) individuals in certain major nontenured policymaking or advisory positions; and
(5) election officials or election workers if the remuneration paid in the calendar year is less than $1,000.
Services for nonprofit organizations and the state also do not include the following:
(1) Church or organization operated primarily for religious purposes and which is controlled by a church.
(2) Religious duties of a minister or member of a religious order.
(3) Patients performing services in a rehabilitation facility or sheltered workshop.
(4) Individual receiving unemployment work-relief or work-training under program financed by federal agency, or an agency of a state or political subdivision.
(5) Inmate of a custodial or penal institution.
(6) Services performed for the federal government or a foreign government are not covered.
Nonprofit organizations, state governmental entities, and Indian tribes have the option of financing the payment of benefits by either the regular contributions or the reimbursement methods. Under reimbursement financing, employers make payments equal to the full amount of regular benefits plus one-half the extended benefits paid to claimants.
PROCEDURES
Base period. --First four of the last five completed calendar quarters immediately preceding individual's benefit year.
Benefit year. --One-year period beginning with first day of first week for which individual first files valid benefit claim. A special uniform benefit year applies to cigar workers.
Weekly benefit amount. --$32 to $275, equal to 1/26 of the total wages paid for insured work in the high quarter of the base period, less any earned during week in excess of an amount equal to eight times the federal minimum hourly wage, computed to next lower multiple of $1 (Sec. 443.111(3)).
Maximum total benefits. --Benefit duration equal to 25% of the total wages in the base period, but not to exceed $7,150 (Sec. 443.111(5)). In addition, during periods of high unemployment, payment of extended benefits at claimant's regular weekly benefit rate.
There is also a short-time (shared work) system whereby reduced benefits may be paid to an individual who remains employed, but whose normal weekly hours of work are reduced by at least 10%, but not by more than 40%, with a corresponding reduction in wages.
Benefit eligibility: Requirements --
(1) base-period earnings of at least 1.5 times high quarter wages, except that an individual is not eligible for benefits if the base period wages are less than $3,400 (Sec. 443.091(1)(f));
(2) be able to work and available for work (Sec. 443.091(1)(c)); and
(3) serve one-week waiting period (Sec. 443.091(1)(e)).
To be eligible for benefits in a current benefit year, a claimant must have earned, after the beginning of the previous benefit year during which he or she received benefits, three times his or her weekly benefit amount in the current benefit year.
An otherwise eligible individual in approved training may not be considered ineligible for benefits on grounds of nonavailability for work, or failure to apply for or refusal to accept suitable work.
Benefits based on service in employment for Indian tribes, tribal units and their subsidiaries will 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 the Act.
No inmate is eligible for benefits, whether employed by a corporation or other private enterprise operating on the grounds of a correctional institution or elsewhere, where such employment is part of a correctional work program or work release program of either the corporation or the Department.
An otherwise eligible individual will not be denied benefits because of unavailability for work due to a lawfully issued summons to appear for jury duty.
An individual must participate in reemployment services, such as job search assistance services, whenever he or she has been determined to be likely to exhaust regular benefits and to be in need of reemployment services.
Disqualifications --Period. --
(1) Discharge for misconduct connected with work --full period of unemployment and until individual is reemployed and has earned income equal to at least 17 times individual's weekly benefit amount. Disqualification may not exceed 52 weeks immediately following week of discharge.
(2) Voluntary leaving without good cause attributable to the employer ("good cause" includes illness or disability of the individual) --until full period of unemployment and until individual has earned income equal to at least 17 times the individual's weekly benefit amount. Under certain circumstances, voluntary leaving to accept recall is not disqualifying. A temporary or leased employee is deemed to have voluntarily quit employment if, upon conclusion of the employee's latest assignment, the employee, without good cause, failed to contact the temporary help firm or employee leasing firm for reassignment, provided the firm advised the employee at the time of hire, and a leased employee is notified at the time of separation as well, that the employee must report for reassignment and that unemployment benefits may be denied for failure to do so (Sec. 443.101(10)).
(3) Suspension for misconduct connected with work --for any week of unemployment due to such suspension.
(4) Discharge for misconduct connected with work consisting of drug use, as evidenced by a positive, confirmed drug test or rejection for offered work as the direct result of a positive, confirmed drug test required as a condition of employment --for any week of unemployment due to such discharge or rejection.
(5) Leave of absence, if such leave was voluntarily initiated by the individual --for any week of unemployment due to such leave.
(6) Refusal of suitable work without good cause --one to six weeks and/or reduction of duration of benefits by three weeks and until worker has earned income equal to at least 17 times his or her weekly benefit amount.
(7) Labor dispute --duration of unemployment due to dispute. No disqualification during lockout.
(8) Termination after violation of criminal law punishable by imprisonment or for a dishonest act in connection with work --up to 52 weeks and until claimant has earned income equal to at least 17 times his or her weekly benefit amount.
(9) False or fraudulent representation to obtain benefit --up to 52 weeks and until he or she earns 10 times his or her weekly benefit amount.
(10) Receipt of wages in lieu of notice or temporary total or permanent total disability payments under any workers' compensation law --benefits reduced by the amount of such payments (Sec. 443.101(3)).
(11) Receipt of benefits under another unemployment compensation law --period of receipt.
(12) Benefits are not payable to an alien unless he or she has been lawfully admitted for permanent residence or is otherwise permanently residing in the United States under color of law.
(13) Receipt of retirement, pension, or annuity income from a base period employer under a program embodied in a union contract or either a public or private employee benefit program --benefits reduced by amount of retirement benefit or by one-half of such retirement benefits if the individual paid at least one-half of the contributions to the retirement program. No reduction for any week in which an individual has received benefits from a retirement, pension, or annuity program under the U.S. Social Security Act, if the individual made contributions to such program.
An individual in an instructional, research or principal administrative capacity for any educational institution is ineligible for benefits during school vacation periods and paid sabbatical leaves based on service with such an institution. A similar disqualification is applicable to service in any other capacity performed for an educational institution or an institution of higher education, except that retroactive payments of benefits may be claimed in certain circumstances. A similar disqualification applies to individuals performing services in an educational institution while in the employ of an educational service agency.
Benefits are not payable to a professional athlete during periods between two sport seasons if there is a reasonable assurance that the individual will perform services in both such seasons.
WHAT THE EMPLOYER MUST DO
Pay the standard rate. --5.4%. Newly liable employers pay 2.7% in 2007. Maximum possible rate is 5.4% (see exception for short-time compensation employers). No employee tax.
Experience rates. --The law provides "experience rates" that may vary considerably from the standard rate payable by an employer until it qualifies for experience rating. Experience rates range from 0.1% to 5.4%. A newly liable employer pays at the rate of 2.7% until its employment has been chargeable for eight quarters. The account is then rated by computation and assignment of a benefit ratio. The total benefits charged to the account for the first six of last eight quarters are divided by the taxable payrolls on which taxes were timely paid for the first seven of the last nine quarters immediately preceding the quarter for which the rate is effective. The employer is next rated on an annual basis using up to 12 calendar quarters of unemployment experience. The computation includes subsequent quarters through June 30th of the year preceding the year to which the ratio applies. Experience rates for such employers also include application of the adjustment factors described below (Sec. 443.131(3)(b)).
In the usual case, an experience rate is assigned for a full calendar year only. What an individual employer's rate will be depends on the ratio of the amount of benefits that have been charged to its account in a prescribed period to the amount of its payroll for a comparable period. For most employers (employers just becoming qualified by reason of eligibility for a benefit ratio are the exceptions --see the foregoing paragraph), this will be benefits charged in the 12 quarters ending June 30th of the year preceding the year for which rates are being set, divided by total wages paid for covered employment in the same period.
The resulting benefit ratio, which directly reflects individual employment experience, is then adjusted by certain amounts (called "factors" ) to reflect employment experience on a statewide basis: one such factor is added or subtracted when the fund has gone below 3.7% or above 4.7% of one year's taxable payroll; one is added to reflect benefits that have been paid out but not charged to any employer's account; and one is added to reflect benefit charges that exceeded the maximum contribution rate. The sum of these factors, when adjusted on the basis of the employment experience of all qualified employers, is then added to the individual qualified employer's benefit ratio, to produce its experience rate.
No employer's rate may be less than 0.1%.
Employers participating in the short-time compensation program will be subject to a maximum contribution rate that is 1% higher than otherwise required.
For 2007, the minimum rate is 0.12%, and the maximum rate is 5.4%, except that employers participating in the short-time compensation program will be subject to a maximum rate of 6.4%. New employers pay 2.7% in 2007. The noncharge adjustment ratio is .0026, the excess payment ratio is .0016, the fund size ratio is .0000%, the gross benefit ratio is .0115, the multiplier is .3652, and the final adjustment ratio is .0012.
SUTA dumping. --Upon transfer or acquisition of a business, the following conditions apply to the assignment of rates and to transfers of unemployment experience:
If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is any common ownership, management, or control of the two employers, the unemployment experience attributable to the transferred trade or business will be transferred to the employer to whom the business is so transferred. The rates of both employers will be recalculated and made effective as of the beginning of the calendar quarter immediately following the date of the transfer of the trade or business unless the transfer occurred on the first day of a calendar quarter, in which case the rate will be recalculated as of that date.
If, following a transfer of experience, the Agency for Workforce Innovation or the tax collection service provider determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability for contributions, the experience rating account of the employers involved will be combined into a single account and a single rate assigned to the account.
Whenever a person who is not at the time an employer acquires the trade or business of an employer, the unemployment experience of the acquired business will not be transferred to the person if the Agency for Workforce Innovation or the tax collection service provider finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, the person will be assigned the new employer rate. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the tax collection service provider must consider: (1) Whether the person continued the business enterprise of the acquired business; (2) How long such business enterprise was continued; or (3) Whether a substantial number of new employees was hired for performance of duties unrelated to the business activity conducted before the acquisition.
If a person knowingly violates or attempts to violate these provisions or knowingly advises another person to violate the law, that individual will be subject to the following penalties:
If the person is an employer, the employer will be assigned the highest rate assignable for the rate year during which the violation or attempted violation occurred and for the three rate years immediately following that rate year. However, if the individual's business is already at the highest rate for any year, or if the amount of increase in the person's rate would be less than two percent, then a penalty rate of two percent of taxable wages will be imposed for the year and the following three rate years.
If the individual is not an employer, he or she will be subject to a civil penalty of not more than $5,000.
Voluntary payments. --In effect only from 1/1/97 --12/31/99. Currently no provision.
DEADLINES
Tax. --Contribution report, Form UCT-6, is due quarterly on or before last day of following month. If due date falls on Saturday or Sunday, report may be filed on next succeeding business day. Reports postmarked on due date are deemed timely filed. Reports may be allowed at other than quarterly intervals when to the advantage of the Division and the employer, but in no case may any report or contribution payment be less than quarterly, except for employers of domestic employees under certain circumstances.
An employer may choose to file any report and remit any taxes required by electronic means. The Agency for Workforce Innovation or its designee will prescribe by rule the format and instructions necessary for filing the reports and remitting taxes to ensure a full collection of contributions due. Note that any employer who employed 10 or more employees in any quarter during the preceding state fiscal year, or any person that prepared and reported for five or more employers in the preceding state fiscal year, must submit the Employers Quarterly Reports (UCT-6) for the current calendar year and remit the taxes due by electronic means approved by the agency or its designee.
Wages. --Report of weeks worked and wages paid to each worker, Form UCT-6W, is due quarterly, with contribution report.
Domestic employees. --The Division may grant requests by employers of domestic help to report wages and pay contributions on an annual rather than quarterly basis, with a due date of January 1 and delinquency date of February 1 (Sec. 443.131).
Reports for separated employees. --Within 10 days after mailing of notice of initial determination of claim (Forms UCB-4, UCB-12 or other written notice signed by employer), furnish Division with any information that would disqualify claimant. Upon request for additional information with respect to separation from work or refusal to accept suitable work, furnish Division written report within 10 days after mailing of such request.
No later than the day of an actual mass separation (25 or more workers), file mass separation notice in local office in lieu of individual separation notices. In case of a labor dispute, file Form UCB-14 with local office in lieu of mass or individual separation notices.
Failure to accept suitable work. --Send written notice within 72 hours to Division central office or to local office if individual fails or refuses to accept suitable work offered to individual direct without having contacted local employment office and where no referral of such individual to such employer was previously made by a local office.
Low earnings. --Upon customary payday, furnish each partially unemployed worker who earns less than his or her weekly benefit amount with Form UCB-8, Weekly Report of Low Earnings. Upon notification of weekly benefit amount and benefit year ending date, furnish worker, for each week of partial unemployment, with copy of Form UCB-8 or other evidence concerning the partial unemployment containing the prescribed information.
WHO TO CONTACT
The Florida Unemployment Compensation Law is administered by the Florida Agency of Workforce Innovation, 201 Caldwell Building, Tallahassee, FL 32399-0211. Telephone (904) 488-6093.
RECORDKEEPING
Every employing unit is required to keep true and accurate work records, containing such information as the Division may prescribe. Such records must be kept open to inspection by the Division or its representatives at any reasonable time and as often as may be necessary. Any employing unit that fails to keep records of employment as required under the Law and regulations of the Division shall be considered an employer liable for the payment of contributions, regardless of the number of individuals employed, provided the Division has made a written demand requesting such compliance six months prior to the actual day of assessing such