Lead Opinion
In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) that denies compensability of his motor vehicle accident and resulting injuries on the basis that Claimant was not an employee at the time of the motor vehicle accident. Because we conclude that Claimant was an “employee” as the term is defined in section 440.02(15)(a), Florida Statutes (2010), we reverse.
Background
On May 21, 2011, Claimant, a licensed truck driver, was contacted by Walt Ring-dahl, a recruiter for the Employer
On June 21, 2011, Claimant and his family traveled from Claimant’s home in Mims, Florida, to Auburndale, Florida, to attend orientation. The Employer provided lodging, lunch, and transportation during the two-day orientation. On June 22, 2011, Claimant underwent a physical examination, which he successfully completed, and a drug test, the results of which were expected by the end of orientation. After Claimant signed for his picture identification badge, Mr. Ringdahl transported the recruits to and from lunch.
The same day, Claimant completed the Employer’s checklist, titled “Prospective Bynum Drivers,” which states, “This is not an offer of employment and should not be viewed as such”; Mr. Ringdahl instructed Claimant to date the checklist for the following day, June 23, 2011, the “official” date of hire. Claimant also signed a document titled “Orientation Pay” which stated that “all new drivers would receive $50 per day upon successful completion of orientation.”
On June 28, 2011, Claimant received his picture identification badge. Because recruits were expected to depart from the Employer’s facility for the first trip immediately following the second day of orientation, Claimant’s wife delivered his provisions for the trip to the Employer’s facility. Claimant got into his automobile with his wife to follow Mr. Ringdahl to the restaurant for lunch. On the way to lunch, Claimant was involved in a motor vehicle accident.
Thereafter, Claimant underwent a truck driving test, which he successfully completed. At the end of the second day of orientation, Claimant received the keys to his assigned truck and set out on his first trip. Although Claimant completed one trip for the Employer, he did not thereafter perform work.
On July 8, 2011, Claimant received a “Bynum Transport, Inc. Settlement Detail Sheet” which indicated that Claimant was paid “Orientation Pay” in the amount of $100 for Claimant’s participation and completion of orientation. Under “Additional Wages,” the document classified Claimant’s orientation pay as “SAL.” The settlement sheet further listed Claimant’s reimbursements for expenses, cash advances, deductions for supplies, and taxes withheld by the Employer.
On July 22, 2011, Claimant filed a petition for benefits (PFB) seeking compensa-bility of the injuries sustained in the motor vehicle accident which occurred on the second day of orientation. The Employer/Carrier (E/C) denied the claim on the basis that Claimant was not an employee at the time of the accident. At the merits hearing, Claimant testified that it was his understanding that he was hired before he left for Auburndale because the Employer had completed the background investigation, knew who Claimant was, invited Claimant to travel to orientation, and covered his lodging expenses. Claimant also testified that he would not have left his previous employment of six years on a “maybe.” Claimant further testified that he requested his trip “essentials” from his wife before the accident because he knew he was going to leave for his first trip following orientation. Claimant argued the $50 per-day orientation pay constituted wages and is evidence that Claimant’s employment began June 22, 2011.
At trial, the E/C maintained that a contract for employment had not been formed with Claimant and offered testimony from
Regarding the hiring process, Mr. Brinkley testified that prospective drivers cannot become employees until orientation is completed. He stated the Employer uses the orientation process to complete any unfinished background investigations. He testified that Claimant would not have been hired if he had not passed the background investigation, physical examination, drug test, and driving test. He further testified that prospective drivers receive an identification badge when they have been officially hired and that Claimant was officially hired at the time he received his identification badge between 4:30 p.m. and 5:00 p.m. on June 23, 2011 — approximately four hours after the automobile accident.
Mr. Brinkley testified that he handles all of the Employer’s workers’ compensation claims, and that workers’ compensation benefits had been provided to other prospective drivers who had been injured during orientation.
In the final order, the JCC found that Claimant was not an employee at the time of his accident, and therefore the accident was not compensable. The JCC explained:
The claimant was aware that he had to pass a drug test in order to be hired. He was told by Walt [Ringdahl] that he should not date the check list for the first day as he would not be hired until the second day. The claimant testified that he knew he could leave at any time and that several of the recruits did leave during or after the first day. He testified that he considered himself to be hired because he knew he could pass the drug test, physical examination and driver test. However, the employer did not know that claimant could pass these tests and did advise the claimant that he would not be hired until he successfully completed the orientation process. The claimant argues that the payment of the $50.00 per day was wages and is evidence that he had been hired. However, the paperwork he signed clearly indicates that these payments would not be made unless the orientation was successfully completed. Wages are defined as the money rate at which the service rendered is recompensed. It is undisputed that the monies paid for the first two days were a flat rate, different from the wage ultimately offered to and accepted by claimant. In addition the claimant would only receive this flat rate if he successfully completed the orientation. If he did not successfully complete the orientation he would not be given the flat rate. However, had he been working for those two days he would have been entitled to his wages for the time he was there, whether or not he successfully completed the orientation period.
Analysis
The status of an employment relationship can be determined as a matter of law. Phillips v. Unicare Amelia Island, Inc.,
Section 440.02(15)(a), Florida Statutes (2010), defines “employee” as:
... any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written ...
This broad language reflects the intent of the Legislature to afford expansive coverage under the Florida workers’ compensation scheme, subject only to narrow exceptions. Hazealeferiou v. Labor Ready,
The general rule is that there is no entitlement to workers’ compensation benefits before hiring. 1A Arthur Larson, The Law of Workmen’s Compensation § 26.02 (2012). Florida law requires that for a person to be considered an employee for workers’ compensation purposes, a contract of employment, either express or implied, must exist. Jurisdictions that permit a conclusion that injuries sustained during a period of pre-employment are compensable base such a conclusion on the fact that in such jurisdictions, a formal employment contract is not necessary to establish an employment relationship covered by workers’ compensation. Dodson v. Workers’ Comp. Div.,
Here, it is undisputed that a formal, written contract of employment had not been created at the time of Claimant’s motor vehicle accident. Notwithstanding, under the rationale employed by the Hubble court, Claimant would be deemed an “employee” retroactively to the first day of orientation, such that Claimant is subject to the Workers’ Compensation Law, considering the following: Claimant was required to attend orientation prior to starting the first assignment as a truck driver; the Employer provided travel pay for lodging expenses incurred during the two-day orientation period; the Employer exerted control during the two-day orientation period, evidenced by its commandeering of Claimant’s transportation throughout the orientation period (the Employer’s representative transported Claimant to and from the Employer’s facility throughout the orientation period); the orientation was not part of the application process and took place upon completion of the application process; and significantly, according to the E/C’s payroll records, Claimant was paid a salary for attending orientation. Additionally, evidence established that this Employer had covered injuries of those individuals who were undergoing the same type of orientation that occasioned Claimant’s injuries — meaning the Employer was not of the mindset that absolutely no employer/employee relationship was being forged through the compensated activities of orientation. That the Employer — after the fact — characterized the salary Claimant received for orientation time as an advance and not really wages, is of no import; the Employer could have issued Claimant a different form of payment for his orientation time, but elected to pay Claimant wages for attending orientation instead — further indicating that the Employer was of the mindset that some form of employer/employee relationship was being forged through the activities of orientation.
Because the written documentation created by the Employer indicates that — consistent with Claimant’s own understanding of his relationship with the Employer— Claimant was hired as of the first day of orientation by operation of salary paid for attending orientation, Claimant was an “employee” for workers’ compensation purposes at the time of the motor vehicle accident. Accordingly, the order on appeal should be REVERSED and REMANDED for entry of an order consistent with this opinion.
Notes
. Claimant had previously submitted an online application for employment to the Employer.
Dissenting Opinion
dissenting.
I respectfully dissent.
Coverage under the Florida Workers’ Compensation Law is predicated on the existence of an employment contract, whether oral or written, express or implied. See § 440.02(15)(a), Fla. Stat. (2010) (defining employee as person who receives remuneration under employment contract, whether express or implied, oral or written); see also § 440.09(1), Fla. Stat. (2010) (providing that employer is required to secure compensation for employees). The Legislature has drawn the textual boundaries of coverage under the Workers’ Compensation Law and, under its plain language, the existence of an employment contract is required. Notwithstanding the innumerable factual circumstances that might give rise to an employment contract, it is fundamental that all con
The majority, having been presented with a case where it is conceivable that an employment contract was formed — had the evidence been accepted by the JCC — has incorrectly interpreted the legal elements necessary to prove the existence of a contract.
In so doing, the majority has overlooked the role of the JCC as the finder of fact, and this court’s limited role on appeal to review such findings for competent, substantial evidence. As explained below, in my view, the only conceivable employment contract that was entered into between Claimant and Employer before the accident in question was an implied-in-fact contract, because the existence of neither an express contract nor a contract implied in law can be established on this record. Here, the existence of an implied-in-fact contract, and its terms, is dependent on evidentiary proof and factual findings; however, the facts that might have established an implied-in-fact contract were resolved against Claimant. Accordingly, we should affirm the order on appeal.
No Express Contract
An express contract is an actual agreement between the parties, the terms of which are openly uttered or declared at the time of formation. See Rabon v. Inn of Lake City, Inc.,
Thus, I must assume that the employment contract upon which the majority bases its result is not a written or express contract based on the actual words or promises of the parties, but rather an implied contract.
Significantly, however, the majority does not identify whether the implied contract upon which it bases its decision is a contract implied in fact — a tacit promise made by Employer — or an implied contract imposed by law — a legal fiction that creates a contractual remedy where one party has been unjustly enriched by receiving something of value from the other party, in the absence of an express contract. See Rabon,
No Contract Implied by Law
“A contract implied by law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words and conduct.” Am. Safety Ins. Serv., Inc. v. Griggs,
At trial, Claimant did not establish, nor did he attempt to establish, that Employer was unjustly enriched by his attendance at the orientation, nor does Claimant aver as much in his briefs filed with this court. Importantly, the JCC did not find unjust enrichment, nor would the record support such a finding.
Accordingly, on this record, Claimant cannot establish an employment contract implied by law, and it is relatively clear that the majority’s ruling does not rest on the existence of a contract implied by law. Hence, it is apparent that the majority, rather than relying on the terms of an express contract, or a contract implied by law, is concluding that an employment relationship was formed based on a contract implied in fact. As discussed below, however, because the record supports the JCC’s finding that Employer never formed the intent to create any employment relationship with Claimant until after the orientation, we are required to affirm the appealed order. A contract implied in fact, just as an express contract, is dependent on a factual finding of mutual consent and agreement of the parties, which did not exist in this case.
No Contract Implied in Fact
A contract implied in fact requires the same elements as an express contract — for relevant purposes here, a mutual intent to contract — and differs only in the parties’ method of expressing mutual consent. The United States Supreme Court has explained:
An agreement implied in fact is “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.”
Hercules Inc. v. U.S.,
Further, even if the Employer here bore the burden of demonstrating that the JCC’s order should be affirmed, which it does not, the “standard of review in worker’s compensation cases is whether competent, substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below.” Wintz v. Goodwill,
Thus, assuming that Employer improperly classified its payments to Claimant as wages, this would be but one fact indicating an intent other than that testified to by Employer, to be weighed by the JCC. Such payments would not, however, create a de facto, retroactive employment contract as a matter of law, where no such contract was formed by the mutual assent of the parties in real time. Based on the foregoing, therefore, I would affirm.