BURNUP & SIMS COM TEC, INC., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, APPELLEE
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Burnup & Sims appeals a Department of Labor determination that cable splicers and installers performing services for it should be classified as employees under Florida's unemployment compensation law. The court reverses, holding that despite some factors suggesting employment, the lack of control over the means and method of work performance establishes the workers as independent contractors.
The cable splicers and installers are independent contractors, not employees, for purposes of the Unemployment Compensation Law. The lack of control by Burnup & Sims over the means and method by which the work is accomplished is the decisive factor, and inspection of work results does not constitute control over the means of performance.
[1] The determination of whether individuals are employees or independent contractors for unemployment compensation purposes hinges on the degree of control exercised over th…
[2] Inspection of the results of work does not, in itself, demonstrate control over the means by which the service is performed for the purpose of determining employee status…
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Join FLexlaw to unlock all legal intelligence“the all important aspect of control over the means by which the work is accomplished is so lacking that the cable splicers and installers in this case must be deemed to be independent contractors”
Establishes that lack of control over means and method of work is the dispositive factor in the employee vs. independent contractor analysis under Florida unemployment compensation law.
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Join FLexlaw to unlock all legal intelligenceBurnup & Sims engaged cable splicers and installers to perform cable splicing and installation work. The workers sometimes bid for contracts on a pric…
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PER CURIAM.
We originally entered a per curiam decision without opinion affirming the order entered below. Upon reflection, we grant rehearing, withdraw our original decision, and enter the opinion and decision which hereafter follow.
Burnup & Sims appeals from an order of the Department of Labor and Employment Security, Division of Unemployment Compensation, which adopted the special deputy’s recommendation that certain individuals performing services for it as cable splicers and installers are “employees” under section 443.036(17), Florida Statutes (1983).
Burnup & Sims is in essentially the same business as that of the appellant in D.O. Creasman Electronics, Inc. v. State of Florida Department of Labor & Employment Security, Division of Unemployment Compensation, 458 So. 2d 894 (Fla. 2d DCA 1984). In that case we reversed the department’s holding that certain cable splicers performing services under contract to Creasman were actually its employees. While the work done by the cable splicers and installers for Burnup & Sims seems to be the same as that performed by Creas-man’s cable splicers and the relationship between the respective parties is much the same, there are certain factors which make this a closer case.
Unlike Creasman, there are occasions when the cable splicers and installers bid for their contracts with Burnup & Sims on a price per hour basis. In addition, Burnup & Sims sometimes furnishes its own employee-helpers to assist the cable splicers and installers, and there is evidence that the contracts are terminable at will by either party without penalty. Nevertheless, we are convinced that the all important aspect of control over the means by which the work is accomplished is so lacking that the cable splicers and installers in this case must be deemed to be independent contractors. See A Nu Transfer, Inc. v. Department of Labor & Employment Security, 427 So. 2d 305 (Fla. 3d DCA 1983); United States Telephone Co. v. State, Department of Labor & Employment Security, 410 So. 2d 1002 (Fla. 3d DCA 1982). The special deputy misconstrued the telephone company’s inspection of results of the work as demonstrating control by Burnup & Sims over the means by which the service is performed.
We hold that the cable splicers and installers are not employees of Burnup & Sims for purposes of the Unemployment Compensation Law.
Reversed.
GRIMES and SCHOONOVER, JJ., concur. BOARDMAN, A.C.J., dissents with opinion.
BOARDMAN, Acting Chief Judge,
dissenting.
I would deny the motion for rehearing and follow our original decision.
Upon further review, I am still of the opinion there is sufficient evidence in the record to uphold the special deputy’s find ings; therefore, I cannot conclude that his findings are in error.
Cases With Similar Vibessemantic neighbors from the corpus
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Kane Furniture Corp. v. Romulo Miranda, 506 So. 2d 1061 (Fla. 2d DCA 1987)…ndependent contractors just as the news carrier and newspaper boys were in Miami Herald and just as the cable splicers were in D.O. Creasman, T & T Communications and Burnup & Sims Com Tec, Inc. v. State, Department of Labor and Employment Security, 459 So. 2d 447 (Fla. 2d DCA 1984). Appellee argues that we should not hold that Perrone and Kraus were independent contractors as a matter of law. Rather, appellee contends that it is a question of fact for the jury. Appellee, relying on Florida Rule of Civil Pro…
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T & T Commc'ns, Inc. v. State of Fla. Dep't OF Labor & Emp. Sec., 460 So. 2d 996 (Fla. 2d DCA 1984)…dings illustrates that this factual situation bears some strong resemblances to those in our recently decided cases of Burnup & Sims Com Tec, Inc. v. State of Florida, Department of Labor & Employment Security, Division of Unemployment Compensation, 459 So. 2d 447 (Fla. 2d DCA 1984) (on rehearing), and D. O. Creasman Electronics, Inc. v. State of Florida Department of Labor & Employment Security, Division of Unemployment Compensation, 458 So. 2d 894 (Fla. 2d DCA 1984). Although T & T Communications is not in…
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Dep't of Health & Rehabilitative Servs. v. Dep't OF Labor & Emp. Sec., 472 So. 2d 1284 (Fla. 1st DCA 1985)…as not being made, since the arrangement between claimant and HRS allowed both the claimant and the family freedom to accept or reject claimant’s assignment as a housekeeper. See Burnup and Sims v. State, Department of Labor and Employment Security, 459 So. 2d 447, 448 (Fla. 2d DCA 1984) (special deputy misconstrued tele [*1287] phone company’s inspection of results of cable splicer’s work as a demonstration of control over the means by which the work was performed); compare VIP Tours of Orlando, Inc. v. Stat…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States Tel. Co. v. State, 410 So. 2d 1002 (Fla. 3d DCA 1982)
- D.O. Creasman Elecs., Inc. v. State of Fla. Dep't of Labor & Emp. Sec., 458 So. 2d 894 (Fla. 2d DCA 1984)
- A NU Transfer, Inc. v. Dep't of Labor & Emp. Sec. Div. of Emp. Sec., 427 So. 2d 305 (Fla. 3d DCA 1983)