COSMO PERSONNEL AGENCY OF FORT LAUDERDALE, INC., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, APPELLEE
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Cosmo Personnel Agency appealed an administrative decision classifying its employment counselors as employees under Florida's Unemployment Compensation Act. The court reversed, holding that the counselors were independent contractors because Cosmo exercised no control over the details of their work, only the end result.
The counselors are independent contractors, not employees, under the Unemployment Compensation Act. The Director's reliance on Chapter 449's definition of such individuals as employees to establish employment status under Chapter 443 was improper and not supported by the facts, as Cosmo exercised no control over the details of the counselors' work.
[1] A determination of employment status for unemployment compensation purposes cannot be solely based on definitions found in a separate regulatory chapter governing employm…
[2] The degree of control exerted over the details of work, rather than the end result, is a key factor in determining whether an individual is an employee or an independent…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Use of the definition found in Chapter 449 to establish the individuals in question as employees under Chapter 443 was improper.”
The court's rejection of the Director's method of determining employment status by cross-referencing statutes.
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Join FLexlaw to unlock all legal intelligenceCosmo is a licensed employment agency that contracted with licensed employment clerks to work as employment counselors since 1974. The contract requir…
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BERANEK, Judge.
Cosmo Personnel Agency appeals from an order entered by the Director of the Division of Employment Security finding that Cosmo’s employment counselors are employees under Chapter 443, Florida Statutes (1979), the Unemployment Compensation Act, and that Cosmo is liable under that Act. We reverse.
Cosmo is a licensed employment agency which was previously governed and regulated by Chapter 449, Florida Statutes (1979)1. Since January 1, 1974, Cosmo has contracted with persons licensed as employment clerks under Chapter 449, for their services as employment counselors. The contract requires two weeks’ training without pay. Following this, each counselor is assigned a geographical area of primary responsibility. Cosmo provides secretarial help, office space, and phone service; however, the counselors pay for this. The counselors may also hire and fire their own employees. They are paid a monthly stipend which represents the amount of their commissions less operating expenses and a percentage paid to the Cosmo agency. No taxes or other deductions are withheld.
The president of Cosmo provides supervisory assistance to the counselors upon request. Counselors set their own work hours and submit weekly reports to Cosmo. Cos-mo sets all rates according to state regulation and handles billing. Cosmo’s trade name is used in conducting business. A non-competitive agreement is signed by each counselor prohibiting similar employment within 50 miles for two years after termination. Either party may cancel the contract without cause.
The Special Deputy, in his findings of law, and the Director, in her order, relied primarily on Chapter 449 in determining that the counselors are employees. They concluded that because Section 449.01(9) defines such individuals as employees, they must also be employees for purposes of unemployment compensation under Chapter 443.
Use of the definition found in Chapter 449 to establish the individuals in question as employees under Chapter 443 was improper. Under the view adopted by the Director herein, Chapter 449 would automatically preclude every employment agency from contracting with an independent contractor, and we are convinced that Chapter 449 was not so intended. Thus, the Director’s finding that the employment counselors performing services for Cosmo are employees as a matter of law is erroneous. Moreover, the determination that the counselors are employees is not supported by the facts in the record. All the evidence at the hearing held before the Special Deputy demonstrated that Cosmo exerted no control over the details of the counselors’ work, but rather, was concerned only with the end result, i.e., profits earned. As such, the counselors are properly categorized as independent contractors rather than as employees. See Florida Gulf Coast Symphony, Inc. v. Department of Labor and Employment Security, 386 So. 2d 259 (Fla.2d DCA 1980); Jean M. Light Interviewing Services, Inc. v. State, 254 So. 2d 411 (Fla.3d DCA 1971). Accordingly, the order appealed from is reversed.
REVERSED.
DOWNEY and MOORE, JJ., concur. . Chapter 449, governing employment agencies, was repealed in its entirety by Chapter 76-168, Laws of Florida, effective July 1, 1980.
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D.O. Creasman Elecs., Inc. v. State of Fla. Dep't of Labor & Emp. Sec., 458 So. 2d 894 (Fla. 2d DCA 1984)…without supervision held to be independent contractor even though telephone company furnished office space and clerical assistance without charge); Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State, Department of Labor & Employment Security, 407 So. 2d 249 (Fla. 4th DCA 1981) (employment counselors deemed not to be employees of employment agency despite the furnishing of secretarial help, office space, and phone service, the use of the employment agency’s trade name, and the fact that either party cou…
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VIP Tours OF Orlando, Inc. v. State, 449 So. 2d 1307 (Fla. 5th DCA 1984)…The court concluded that United States Telephone Company was concerned with profits and exerted no effective control over its salesmen. In Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State of Florida, Dept. of Labor and Employment Security, 407 So. 2d 249 (Fla. 4th DCA 1981), Cosmo was a licensed employment agency which contracted with persons licensed as employment clerks for their services as employment counselors. The employment contract required two weeks training without pay. Following this, eac…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jean M. Light Interviewing Servs., Inc. v. State, 254 So. 2d 411 (Fla. 3d DCA 1971)
- Fla. Gulf Coast Symphony, Inc. v. Dep't OF Labor & Emp. Sec., 386 So. 2d 259 (Fla. 2d DCA 1980)