F.L. Enterprises, Inc. v. Unemployment Appeals Commission, 515 So. 2d 1340

UPCHURCH, Chief Judge.

F.L. Enterprises appeals an order of the Unemployment Appeals Commission affirming a referee’s decision in favor of Marsha Jouben. The crucial question in determining Jouben’s eligibility for unemployment benefits concerns whether she was an employee or an independent contractor of F.L. Enterprises. We conclude that the evidence clearly establishes that Jouben was an indеpendent contractor rather than an employee and reverse.

Pursuant to an Independent Contractors Agreement with F.L. Entеrprises, Jouben undertook the solicitation of time share prospects. F.L. Enterprises is a company which arranges for time share prospects to visit time share resorts. It does not sell time share interests. It contracts with solicitors such as Jouben to approach tourists at central Florida hotels, shopping malls and the like to arrange for them to tour particular resorts. The solicitor is paid a commission of $25.00 for each qualified¹ prospect that is referred to a resort. This is the solicitor’s only compensation, regardless of the time involved. The resort, not F.L. Enterprises, determines whether the prospect is qualified. Each prospеct is informed they will receive a gift from the particular resort in exchange for visiting the facility and sitting through a presentation. In the event a prospect is determined to be unqualified, the procuring solicitor may be charged for the cost of the gift.

Solicitors arе informed when they are hired that they are independent contractors. They may work either a day or evening shift at a particular location. F.L. Enterprises attempts to accommodate solicitors, and makes the final decision as to hours when, and locations where they are to work. The solicitor is required to be present at a particular location during the particular shift. Sоlicitors receive no benefits such as vacation or insurance and neither Social Security ‍​​​‌‌​​​​‌​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​​​‌‍nor income tax is deducted frоm their weekly pay checks. The solicitors have no quotas and work without direct supervision. There is no formal training program for solicitors. Solicitors attend a weekly meeting where paychecks are distributed along with brochures provided by the time share resоrts. Finally, solicitors are permitted to engage in outside employment so long as it is not in the same field and Jouben worked several days a week for a department store.

The referee concluded that Jouben was an employee because F.L. Enterрrises exercised control over her by expecting her to attend the weekly meetings, by scheduling the time and place of her wоrk, by making periodic visits to her locations and because F.L. Enterprises controlled the final product.

In considering the issue of employee vs independent contractor, we reiterate the test found in the Restatement (Second) of Agency § 220, which is routinely used in this state:

In determining whether one acting for аnother is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) thе extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one еmployed is engaged ‍​​​‌‌​​​​‌​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​​​‌‍in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the loсality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whеther by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties beliеve they are creating ‍​​​‌‌​​​​‌​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​​​‌‍the relationship of master and servant; and

(j) whether the principal is or is not in business.

See, e.g., Cantor v. Cochran, 184 So.2d 173 (Fla.1966); Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941); Messer v. Department of Labor & Employment, 500 So.2d 1372 (Fla. 5th DCA 1987).

Of all the factors, the right of control as to the mode of doing the work is the principal consideration. VIP Tours v. State, Department of Labor & Employment Security, 449 So.2d 1307 (Fla. 5th DCA 1984). The evidence here clearly shows that F.L. Enterprises exercised no contrоl over the details of the work and left Jouben to solicit prospects entirely as she wished. There was simply no requirement that the work be done in a particular manner,² and there is no evidence that Jou-ben’s presentations were monitored or reviewed. While Jouben was expected to work particular times and locations, she notified F.L. Enterprises what periods she would be available for work. Furthermore, merely expecting that a worker be present at a particular location during a particular time doеs not, without more, transform the worker from an independent contractor to an employee. See, e.g., VIP Tours v. State, Department of Labor & Employment Security, 449 So.2d 1307 (Fla. 5th DCA 1984).

As to the weekly meetings, the evidеnce showed that while valuable information was imparted and ‍​​​‌‌​​​​‌​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​​​‌‍attendance obviously encouraged, Jouben would not have been discharged if she failed to attend.

There were additional indicia of an independent contractor status such as lack of fringe benefits and the absence of withholding for taxes and Social Security from the solicitor’s pay, see, e.g., Messer, 500 So.2d at 1373, payment by way of commissions, Florida Industrial Commission v. State ex rеl. Orange State Oil Co., 155 Fla. 772, 21 So.2d 599 (1945); Cosmo Personnel v. State, Department of Labor & Employment, 407 So.2d 249 (Fla. 4th DCA 1981), the existence of the agreement which indicates F.L. Enterprises and Jou-ben considered the solicitors tо be independent contractors, VIP Tours v. State, Department of Labor & Employment, 449 So.2d 1307 (Fla. 5th DCA 1984); F & G Distributors v. Department of Labor & Employment Security, 478 So.2d 891 (Fla. 3d DCA 1985) and the fact that Jouben could hold other employment (though not in the same field). See Unique Construction Co., Inc. v. Department of Labor & Employment, 472 So.2d 1349 (Fla. 2d DCA 1985).

The refеree’s determination that F.L. Enterprises controlled the final product, which here was a qualified prospect, ‍​​​‌‌​​​​‌​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​​‌‌‌​‌‌​​​‌‍is erroneous. The evidence clearly shows that the time share resorts controlled this determination.

We conclude that there was a lack оf substantial evidence to support the referee’s conclusion that Jouben was an employee.

REVERSED.

SHARP and COWART, JJ., concur.

Notes

1 . In order to qualify, the prоspect must be a U.S. citizen between the ages of twenty-three and sixty-three, married and earn over $20,000 a year.

2 . Jouben points out that when a prospect was obtained, she was required to telephone F.L. Enterprises as to when and at what resort the particular prospect could be expected and she maintains that this was a form of control over her and her work. However, F.L. Enterprises showed that rather than being designed as a control mechanism, this requirement merely re-fleets a valid business need, i.e., to avоid overbooking and time conflicts at the particular resorts. See Hilldrup Transfer v. State, Department of Labor & Employment, 447 So.2d 414, 417 (Fla. 5th DCA 1984) (truck operators not employees where they were required to notify company daily of their whereabouts since this was done to facilitate use of trucks and trailers).

Case Details

Case Name: F.L. Enterprises, Inc. v. Unemployment Appeals Commission

Court Name: District Court of Appeal of Florida

Date Published: Nov 19, 1987

Citations: 515 So. 2d 1340; 12 Fla. L. Weekly 2650; 1987 Fla. App. LEXIS 11093; 1987 WL 1616; No. 86-1839

Docket Number: No. 86-1839

Court Abbreviation: Fla. Dist. Ct. App.