The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Deborah Revell-Nicholson ""Nicholson"), was discriminated against by termination from her employment on the basis of her sex (female/pregnancy), in violation of the Human Rights Act of 1977, as amended, specifically Section 760.10, Florida Statutes (1989).
Findings Of Fact The Petitioner, at times pertinent hereto, was employed as an emergency medical technician (EMT) with the Franklin County Emergency Medical Service. The Respondent, now known as Emerald Coast Hospital ("Hospital") operated the Franklin County Emergency Medical Service, including its ambulances ("EMS"). The Petitioner was hired in September of 1989 by Mr. George Potter, then the director of the Franklin County EMS. The Petitioner was terminated by Mr. Shiver, the Assistant Administrator of the Hospital in November of 1989. When the Petitioner was hired by Mr. Potter, she was pregnant and informed Mr. Potter of that fact. She had a report or statement from her physician attesting to the fact that her pregnancy should not interfere with her duties as an emergency medical technician ("EMT"). Mr. Potter discussed the matter with her and told her that he would approve her hiring in her pregnant condition so long as she agreed not to hold the EMS liable for any injury which might occur to her baby through the performance of her duties with the EMS, and she agreed to this arrangement; and Mr. Potter thereupon hired her. Mr. Potter left the employ of the EMS and the Hospital at some point during the Petitioner's tenure with EMS. Mr. Robbie Poe took his place as the Petitioner's supervisor. Both the Petitioner and the Petitioner's witness, Kurt Valle, indicated in their testimony that Mr. Poe had made a comment to Mr. Valle on some occasion that the Petitioner's pregnancy might be a "possible liability". The testimony of record does not reflect in what context Mr. Poe might have made such a statement. It cannot, thus, be determined whether he merely meant that her pregnant condition might prevent her from effectively performing her duties or whether he meant that he might consider it a reason to terminate her. In any event, there were a number of instances during the brief tenure of her employment when the Petitioner engaged in unprofessional conduct by expressing her attitudes and opinions concerning EMS policies and practices loudly and angrily to co-workers or to her supervisor within the hearing of patients and their families, which was contrary to hospital and EMS policy. This is because the Hospital and the EMS of the Hospital wishes to insure that the public has confidence in its EMS because of the sensitivity of the duties performed by the EMS employees in terms of their responsibility for patients who are often in life-threatening situations and because of the sensitivity they should show for the feelings of the families of those patients, as well as the patients themselves. Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS of the Hospital, which employed the Petitioner, became aware of a number of these instances where the Petitioner had public, verbal altercations with Mr. Poe or her co-workers. The Petitioner, for instance, had "had words" with Mr. Poe about her being required to drive an advanced-life-support-equipped vehicle on a true emergency, when she maintained that she had never done it before. This upset her, and she complained to Mr. Poe, although he never reprimanded her concerning that verbal altercation or her performance in that situation. These incidents led Mr. Poe and Mr. Shiver to have a concern about the Petitioner's capabilities as a member of the EMS in terms of her temperament or emotional stability under stressful situations involving patient emergencies. The problem culminated in an episode where the Petitioner's ambulance and witness, Kurt Valle's ambulance, which itself was equipped with advanced life support equipment, answered a call concerning a patient with a cardiac emergency. The Petitioner's vehicle arrived on the scene of the emergency, where the stricken patient was located, where immediately thereafter or at about the same time, Mr. Valle's vehicle arrived. The patient was apparently loaded into the Petitioner's vehicle, which she had been driving or at least in which she arrived, on duty, at the scene. Because of this and the need for advanced life support equipment for this patient, the equipment on Mr. Valle's vehicle was transferred to the Petitioner's vehicle. Mr. Valle was assigned to drive the Petitioner's vehicle to the Hospital with the patient, who was undergoing advanced-life-support assistance. The Petitioner was then ordered to drive Mr. Valle's vehicle to the Hospital. Upon arriving at the Hospital, where the patient was delivered to the emergency room in very critical condition, the Petitioner was observed to be in a very agitated state, leaving her vehicle and neglecting to turn off the lights and siren. She immediately thereafter engaged in a verbal altercation with Mr. Poe, her supervisor, concerning his decision that she should not drive the vehicle containing the patient and the advanced- life-support equipment and his relegation of her to drive the unused vehicle back to the Hospital. She initiated a hostile, heated argument with Mr. Poe inside the emergency room concerning this grievance; and at Mr. Poe's direction, they continued their discussion outside the emergency room. Much of this argument was conducted in front of the patient's family, contemporaneously with the patient's death, all of which understandably could be quite upsetting to the patient's family and constituted unprofessional conduct for an EMT. This last incident was duly reported to Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS, with the result that he decided to terminate the Petitioner. Mr. Poe played no part in the decision to terminate the Petitioner. He merely informed the Petitioner of the termination decision, which was made by Mr. Shiver. When Mr. Shiver made the decision to terminate the Petitioner, he did not know that the Petitioner was pregnant and had never actually had any contact with the Petitioner before her termination. He did, however, offer to discuss and review the termination decision with the Petitioner when she later called him about it. Mr. Poe, when he informed her of her discharge, indicated to the Petitioner that she had been a good worker and that she was being terminated because of budget problems and a necessary layoff of certain personnel. He made a statement to the effect that she was being laid off first because she had been the last hired. In fact, Mr. Poe played no part in that decision and that was not the reason for the decision. Thus, whether, as the Petitioner maintains, she was not actually the last hired, but that a Mr. Scott Simmons and one or two other personnel had been hired after her, is immaterial to the relevant facts and ultimate conclusion in this case because the Petitioner was actually terminated for her unprofessional conduct and attitude and not because of budgetary constraints. In fact, a budgetary cutback and the necessity for layoffs had been announced by the County Commission, which could have resulted in layoffs in the EMS, including the Petitioner's position. However, on the same day that decision had been announced, the County government officials responsible countermanded it because it would have left insufficient emergency medical personnel on duty on both sides of the barrier of the Apalachicola River, which divides Franklin County. It was deemed to be an unwise decision and, therefore, rescinded. Budgetary constraints and resulting layoffs being putatively necessitated thereby actually played no part in the decision to terminate the Petitioner. Rather, her less-than-professional conduct was the cause of the decision to terminate her by Mr. Shiver, in which decision Mr. Poe had no role. Consequently, the Petitioner's testimony that she had known Mr. Poe ever since they had been in fire fighting school together, that he had tried to date her, which she refused; and her testimony that he had therefore made hostile comments concerning her being a liability because of her pregnancy, (even if Mr. Poe made the statements, which he denied), are immaterial in the context of the evidence and law pertaining to this proceeding, because Mr. Poe played no part in the termination decision. It was Mr. Shiver's decision, and he merely directed Mr. Poe to convey the decision to the Petitioner. Moreover, the Petitioner was employed by the Hospital and by its Assistant Administrator, Mr. Shiver. The Hospital, in fact, has approximately 75% female employees. Many have been pregnant before and after employment. The Hospital has never had a policy or a practice of terminating female employees on account of pregnancy. The EMS is part of, and a department of the Hospital, under the direction and supervision of Mr. Shiver. Moreover, the male EMT, Mr. Simmons, whom the Petitioner maintains was hired immediately after her termination to replace her was not actually hired to replace her because he was hired only on a "PRN" or "as-needed" basis approximately a month after the decision was made to terminate the Petitioner. Further, a female employee, Alisa Alexander, was hired after the termination of the Petitioner, and Mr. Shiver currently had, at the time of hearing, two female employees in-the EMS who are currently driving ambulances. In summary, because of the concerns about the above- mentioned incidents of unprofessional conduct, including the Petitioner's angry outbursts culminating in the incident in which the Petitioner berated her supervisor in the presence of the deceased patient's family concerning his decision not to let her drive the emergency vehicle and because of concerns expressed by her supervisor about her driving skills generally, Mr. Shiver elected to terminate the Petitioner. He did not do so because of the Petitioner's sex nor her pregnancy and, in fact, was not even aware of her pregnancy at the time he discharged her. Further, at the time of her termination and at the time of the incidents in question, the Petitioner was in a 90-day probationary status. All employees undergo such a probation immediately after hiring, during which an employee can be terminated without cause, provided in the employee's handbook of employment and job performance practices and policies. Mr. Shiver established that the Petitioner had signed a statement to the effect that she had read the handbook, including the terms concerning the three-month probationary period, upon being employed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of Deborah RevellNicholson be dismissed in its entirety. DONE AND ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1992. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Deborah Revell-Nicholson Route 3, Box 5626-2 Crawfordville, FL 32327 Henry D. Shiver Assistant Administrator Provident Medical Corporation of Apalachicola Washington Square Apalachicola, FL 32320
The Issue The issue is whether Mclendon Builders, Inc. (“Mclendon Builders”), had insufficient workers’ compensation insurance during the time period in question; and, if so, the amount of the resulting penalty.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2018),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. If a construction business utilizes subcontractors and a subcontractor does not have workers’ compensation coverage, then the employing entity is responsible for having the subcontractor covered. The Department fulfills its enforcement duty by conducting compliance investigations, and a compliance investigation can begin with a Department investigator visiting a worksite. Mclendon Builders has been doing business in Florida since 2006. It renovates and builds homes. At all times relevant to the instant case, Lawrence Eaton was employed by the Department as a compliance investigator. Mr. Eaton monitored construction, non-construction, and agricultural entities to ensure that they have obtained workers’ compensation coverage. On August 29, 2016, Mr. Eaton was in Destin, Florida, and drove past a house that was being renovated. After stopping at the house, he noticed two men, Jeff Ladue and Joe Martin, installing tile inside the house. Mr. Ladue and Mr. Martin reported that they were working for Andrew Mclendon, the owner of Mclendon Builders. After finishing his conversation with Mr. Ladue and Mr. Martin, Mr. Eaton looked for any records pertaining to Mclendon Builders within the Coverage and Compliance Automated System (“CCAS”) and the Division of Corporations. CCAS is a database maintained by the Department, and it enables Department investigators, such as Mr. Eaton, to ascertain if any construction company operating in Florida has workers’ compensation coverage or if an owner has an exemption. CCAS indicated that Mr. Mclendon had an exemption but that there was no coverage for Mclendon Builders. After reporting this information to his supervisor, Mr. Eaton received authorization to issue a Stop-Work Order to Mclendon Builders on August 29, 2016, requiring Mclendon Builders to “cease all business operations for all worksites” in Florida.2/ Mr. Eaton also served, on August 29, 2016, an Order of Penalty Assessment stating that Mclendon Builders would be penalized in an amount “[e]qual to 2 times the amount [Mclendon Builders] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it has failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order and the Order of Penalty Assessment, Mr. Eaton served a “Request for Production of Business Records for Penalty Assessment Calculation.” The aforementioned document required Mclendon Builders to provide the Department with time sheets, check stubs, federal income tax documents, and other business records reflecting Mclendon Builders’ payroll from August 30, 2014, through August 29, 2016 (“the audit period”). Sarah Beal is a penalty auditor for the Department, and she was responsible for calculating the penalty owed by Mclendon Builders. Using the business records provided by Mclendon Builders, Ms. Beal determined who was on Mclendon Builders’ payroll during the audit period and how much compensation each person with no workers’ compensation coverage received. The gross payroll amount for each person was divided by 100 in order to create a percentage, and the percentage associated with each person was then multiplied by an “approved manual rate.” An approved manual rate is associated with a particular class code. A class code describes an employee’s scope of work based on the type of work he or she performs on a daily basis. The National Council on Compensation Insurance publishes the Scopes Manual, and the Scopes Manual sets forth class codes for numerous types of work. Multiplying the gross payroll percentage by an approved manual rate results in a workers’ compensation insurance premium for a particular employee. As required by section 440.107(7)(d)1., each premium amount is multiplied by two in order to calculate a penalty associated with each employee for whom workers’ compensation insurance was not obtained. Ms. Beal then added the individual penalties associated with each person who received compensation from Mclendon Builders during the audit period in order to calculate the total penalty of $31,244.80. During the final hearing, Mr. Mclendon did not dispute that Mclendon Builders lacked workers’ compensation coverage. Instead, he argued that the penalty should be reduced because some of the people employed by Mclendon Builders during the audit period performed work outside Florida. Specifically, Mr. Mclendon testified that Mclendon Builders had large projects outside Florida in 2015, 2016, and 2017, involving the construction of restaurants. However, Mr. Mclendon provided no documentation to corroborate his testimony. Without such corroboration, Mr. Mclendon’s testimony is unpersuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order imposing a penalty of $31,244.80 on Mclendon Builders, Inc. DONE AND ENTERED this 28th day of November, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2018.
The Issue The issue for consideration herein is whether the Respondent, Department of Labor and Employment Security, erred in awarding the contract in response to its Proposal No. 91-064-AS to some firm other than the Petitioner. By Petition And Notice Of Protest dated July 10, 1991, the Petitioner herein, Toplis & Harding, Inc., (Toplis), formally notified the Respondent, Department of Labor and Employment Security, (Department), that it was protesting the bid tabulation in this procurement as scored by the Department, and the following day, July 11, 1991, filed its Formal Notice of Protest regarding the same matter. Thereafter, by letter dated July 17, 1991, the Department forwarded the file to the Division of Administrative Hearings for appointment of a Hearing Officer, and by Notice of Hearing dated July 19, 1991, the undersigned set the case for hearing in Tallahassee on July 29, 1991, at which time it was heard as scheduled. At the hearing, Petitioner presented the testimony of Robert L. Russell, its head of risk management, and introduced Petitioner's Exhibits 1 through 4. Petitioner's Exhibits 5 - 7 for Identification were offered but not received into evidence. Respondent presented the testimony of Ann Lee Clayton, Director of the Department's Division of Worker's Compensation but introduced no exhibits. No transcript was presented. Only the Department submitted Proposed Findings of Fact which have been incorporated in this Recommended Order. Petitioner submitted a written summation and final argument which has been carefully considered in the preparation of this Recommended Order.
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, Department, was the state agency responsible for the administration of the Florida Worker's Compensation Act. One division of the Department deals with the regulation of worker's compensation self insurers and self insurance funds. Petitioner is a 75 year old insurance adjusting and service company consisting of nearly 400 employees and 31 offices in the United States. For the purpose of this procurement, Toplis is the head of a joint venture also utilizing the services of the Fred R. White companies of Dallas, a subcontractor, and Florida agent Lee A. Black. In January, 1991, Toplis broadened its service base to include risk management consulting which is the primary function of Mr. Fred White, head of the Fred R. White companies, mentioned above as one of the partners in the joint venture. The other party, L. A. Black & Associates, is an agency for Travelers, Hartford, and Lloyds of London in Florida and is a certified minority business enterprise in this state. On April 15, 1991, Ann Clayton became the Director of the Respondent's Division of Worker's Compensation and after reviewing the administrative function of that division, determined there was a need for a study of the solvency and liquidity of self insurers and self insurance funds under the jurisdiction of the Division as well as the different ways in which those funds are regulated by the Division. In furtherance of this decision, she appointed Joe Mastrovito, Chief of the Bureau of Self Insurance, to prepare a request for proposals for such a study. The RFP in issue here, developed as a result of those directions, was distributed on June 5, 1991, and required proposals in response thereto by July 3, 1991. At paragraph 2.8 of the RFP, the proposer was required to show evidence: ... that the contract team includes individuals or firms which, by virtue of education, experience, certification and/or licensure, provides expertise in the areas of law, actuarial science, government, accounting, business management, and insurance (including claims, underwriting, and risk management). The provision went on to require that the contractor designate in the technical proposal at least one individual within the contract team with expertise in each of the above areas. The contractor was required to provide resumes for each designated team member which was to include information concerning education, experience, and current employment. This requirement for a recitation of contractor qualifications was also contained in paragraph 3.3, PROPOSAL FORMAT, of the RFP, where the foregoing request for a recitation of qualifications was repeated almost verbatim. Six firms, including Petitioner, submitted timely proposals in response to the RFP. The responses were evaluated by a team composed of Ms. Clayton and Mr. Mastrovito, as well as an actuary and an attorney, both of whom were also from the Department. This committee determined that Petitioner's proposal was nonresponsive in that the resumes of Joyce Armstrong, Fred White, and Lee Black did not support the qualifications listed for them in the RFP in the areas of economics, actuarial science, and government, respectively. Specifically, with regard to Ms. Armstrong, designated by Petitioner as its expert in the area of economics, her resume included with the RFP reflects that she "studied" economics at Southern Illinois University in 1976, but no employment in the field of economics, either before or after that date, was listed. Mr. White's expertise in actuarial science, was claimed on the basis of his resume statement that he is currently completing requirements for membership in his accrediting societies, but the resume reflects no prior work experience in that field. A similar situation pertains in the case of Mr. Black, designated by Petitioner as its expert in the area of government. Here, Petitioner's narrative indicates that Mr. Black held a "senior position" with the United States Department of Housing and Urban Development, yet his resume makes no reference to any government service or experience. At the hearing, Petitioner attempted to introduce affidavits from Mr. Black, Mr. White, and Ms. Armstrong in an effort to bolster their credentials. However, these affidavits, which were objected to by Respondent, were not received into evidence and were not considered by the undersigned. The evaluation committee also failed two of the other five offerors as being unresponsive to the RFP and a second two of the five as having a conflict of interest which disqualified them from award. Only Sterling Partners, Inc. was considered both responsive to the RFP and without a conflict of interest. Both of these categories are "pass/fail" criteria. It was only after an offeror passed both of those that its response was scored on the basis of the other factors for evaluation. Since Petitioner and the other four disqualified submittors did not pass the first two qualifications, they were not scored on the technical proposals or price. Only Sterling Partners, Inc. was, receiving 83 out of a possible 100 points. Since Sterling Partners, Inc. was the only offeror to survive the evaluation process, the team recommended a contract be issued to it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying the protest of Petitioner herein, Toplis & Harding, Inc. as to Proposal # 91-064-AS. RECOMMENDED in Tallahassee, Florida this 12th day of September, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1991. COPIES FURNISHED: Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-0657 Robert L. Russell, Esquire ARM, Risk Management Consultant Toplis & Harding, Inc. 222 South Riverside Plaza Chicago, Illinois 60606 Thomas Jones, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Stephen Barron General Counsel DLES 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Petitioner, Rhonda K. Lenfest, was hired by respondent, Orange County Emergency Services, Inc., on June 13, 1979, in the position of emergency medical services communicator. Her employer is under the control and supervision of the Orange County oar of County Commissioners. Lenfest received a gunshot wound to the abdomen in late 1974 or early 1975. As a result, she is paraplegic and required to use a wheelchair. Lenfest was one of seven communicators employed by respondent. The duties of a communicator included communication by radio to emergency vehicles and hospitals from respondent's headquarters in the Orange County Courthouse. The communications center was staffed twenty-four hours per day, seven days per week. Those employees with the most seniority got the best shifts, and any last minute changes in shifts caused by illness or vacation were generally filled by those with the least seniority. The seniority basis was fully explained to Lenfest when she was initially hired. When first hired, Lenfest was under the impression that her supervisor would schedule her shift work so that twice a week therapy sessions could be continued, and arrangements made to provide care for her seven year old child. She was initially assigned to the 9:00 a.m. - 5:00 p.m. and 8:00 a.m. - 4:00 p.m. shifts. However, during the last four months of her employment she was frequently required to man the 1:00 a.m. - 7:00 a.m. shift when she was the only employee manning the communications center. This as due to a number of shift schedules caused by vacations, illnesses and schedule changes requested by other employees, and Lenfest having the lowest seniority. At various times, Lenfest was observed sleeping on the job. This was confirmed by several independent witnesses. She attributed this to bad shift hours, lack of sleep, and an "understanding" that napping at work was permissible. According to activity logs introduced by petitioner, she was late to work seventeen times between June 13 and November 10, 1979, which was more than any other employee in her section. She attributed this to a difficulty in finding a parking place around the courthouse. On each occasion that she was late, the on-duty employee could not leave his or her shift until Lenfest reported to her station, was briefed as to any existing problem areas, and actually assumed her duties. County personnel policy provides that "(e)xcessive, or habitual lateness will not be tolerated", and that "if such occurs, disciplinary measures . . . will be implemented." Lateness is defined as "not being able to start duty on time." On Saturday, November 10, 1979, Lenfest's immediate supervisor, John Spurlock, presented her with a supervisor counseling form dated October 30, 1979. It indicated she was being counseled for "sleeping on the job, security of building, not paying attention to records and logs, on county phones long periods of time for personal use, being late for work and attitude". At the bottom of the form, Spur lock noted that "(i)f these problems listed above can be solved Rhonda will be the same good worker that she was in the beginning." This was the sixth or seventh occasion on which Lenfest had been counseled. After being presented with the form, Lenfest called her supervisor "a damn liar, immature", "no good", and "lower than a snake's belly". The comments were loud enough for other persons in the area to hear. Spurlock attempted to calm Lenfest, but after these efforts were unsuccessful, he told her she could go home for the day. He then asked her to sign the counseling form. Lenfest said "you make me sick" and tore up the form into four pieces. Spurlock then told her "unless you can prove otherwise, you (can) consider yourself fired." On November 11, 1979, Lenfest was informed by telephone that she should contact her overall supervisor prior to returning to work. She failed to contact him the next working day (November 12) and did not report to work. On November 14, 1979, Lenfest was formally terminated by her manager with such termination to be effective on November 13. Under the Orange County personnel policy manual, a temporary employee is always on probation. Once an employee achieves permanent status he or she is on probation for the first six months. While on probation, an employee can be terminated without any notice or cause. Lenfest became a permanent employee on October 27, 1979, but still was on probation when she was terminated less than a month later. Therefore, Lenfest had no recourse to the grievance procedures afforded permanent status employees of the County. Her reclassification to permanent status had been made two days earlier than another employee so that she would have seniority over that employee. A non-handicapped employee, Ralph S. Bailey, was fired by respondent in 1979 for excessive tardiness. After talking with the personnel department and explaining what had occurred, he was rehired within a few days. Another non-handicapped employee, Brady Parsons, was counseled in 1979 for sleeping on the job. Respondent received no federal funds for the purpose of providing, aiding, assisting in or defraying the expenses of employment.
Recommendation Wherefore, in consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Rhonda K. Lenfest be DENIED. DONE and ENTERED this 20th day of September, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Service, Inc. P. O. Box 1790 Orlando, Florida 32802 John A. Gehrig, Jr., Esquire P. O. Box 3068 Orlando, Florida 32802 Robert Woolfork, Executive Director The Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue is whether Petitioner is eligible to receive disability income payments under the State Group Disability Income Self-insurance Plan (DISP).
Findings Of Fact On or about February 1, 2005, James S. Purdy, Public Defender for the Seventh Judicial Circuit, State of Florida, hired Petitioner as a "part-time" appellate attorney. Petitioner's duties included representing indigent criminal defendants on appeal. As a "part-time" attorney, Petitioner worked the same number of hours as full-time attorneys. His workload was equivalent to the workload carried by all part-time and full- time appellate attorneys. However, except to attend weekly staff meetings, Petitioner did not perform his duties at the Public Defender's Office. Petitioner and other "part-time" attorneys were free to work from home and/or to maintain a private law office. During Petitioner's employment with the Public Defender's Office, Craig S. Dyer, Deputy Public Defender, was in charge of personnel. James Wulchak, Chief of the Appellate Division, was Petitioner's direct supervisor. Petitioner has been under the continuous care of a physician for Parkinson's disease since his diagnosis in 1997. Parkinson’s disease is a neurological degenerative movement disorder for which there is no known cure. The disease's symptoms initially are responsive to medication but become less responsive over time as the disease progresses. Despite the slow progressive nature of Parkinson’s, Petitioner always was able to compensate for his disability by typing his briefs during the periods of time that his medications were effective in relieving his symptoms. Sometimes he worked before dawn, during the evening hours, or on weekends. Petitioner never informed Mr. Purdy, Mr. Dyer, or Mr. Wulchak that he was unable to perform his duties due to a physical disability. Petitioner never requested or advised his employer of a need for special accommodation to perform his assigned tasks. Petitioner continued to perform the duties required of him as an appellate attorney up through the last day of his employment. Petitioner's employer never contemplated dismissing Petitioner due to his inability to perform satisfactory work. In a meeting on March 25, 2008, Mr. Purdy requested Petitioner's resignation due to an incident unrelated to his disability. Petitioner responded that he needed time to ascertain the status of his insurance benefits. Several days later, Mr. Dyer placed a telephone call to Petitioner. Petitioner again refused to resign. On April 15, 2008, Petitioner attended a routine weekly staff meeting. After the staff meeting, Mr. Dyer and Mr. Wulchak had a private meeting with Petitioner. When Petitioner refused to tender his resignation, Mr. Dyer terminated Petitioner's employment effective immediately. But for the incident unrelated to Petitioner's physical condition, Petitioner's employer would have allowed him to continue to work after April 15, 2008. The next day, Petitioner met with representatives of the Public Defender's Office to surrender files. The Public Defender's Office denied Petitioner's request to be paid for work performed on April 16, 2008. As of April 15, 2008, Petitioner had accumulated 228 hours of annual leave and 242.59 hours of sick leave. Respondent paid Petitioner for 120 hours of annual leave, the maximum allowed. Petitioner did not receive payment for accumulated sick leave because he had not worked six years for the state. At all times relevant here, Petitioner's employment was classified as Select Exempt Service (SES). The DISP is one of the employment benefits that Respondent provides to SES employees under Florida Administrative Code Rules 60P-6 and 60P- The purpose of DISP is to provide employees who are on leave with income once their accumulated leave is depleted. In April 2008, Petitioner filed a claim for disability benefits with the Social Security Administration. On May 5, 2008, Petitioner filed a Notice of Intent to file a claim for benefits under the DISP. In the notice, Petitioner asserted that he was disabled as of April 15, 2008, the last day he was a paid employee. Within 90 days thereafter, Petitioner filed his completed claim for disability income payments under DISP. In a letter dated July 1, 2008, Respondent advised Petitioner that he was not eligible to receive DISP payments because he was no longer a state employee. A letter dated July 5, 2008, advised Petitioner that he would receive Social Security disability income in the amount of $2,060 per month commencing October 2008. Petitioner offered the deposition testimony of Richard Boehme, M.D. in lieu of testimony at hearing. Dr. Boehme, a board-certified neurologist, treated Petitioner several times in 2003 and again in January 2004. Thereafter, Dr. Boehme did not see Petitioner professionally until August 2008. Dr. Boehme's medical opinion was that Petitioner was totally disabled and unable to perform the duties pertaining to his employment as of January 1, 2008. Dr. Boehme's testimony is not persuasive in light of Petitioner's continued productivity up through April 15, 2008. Dr. Boehme did not place any specific limitations on the physical activities of Petitioner. According to Dr. Boehme, there was no medical reason to keep Petitioner from continuing to perform the same duties he performed on his last day at work. The greater weight of the evidence indicates that Petitioner was performing satisfactorily on April 15, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to DISP benefits. DONE AND ENTERED this 13th day of November, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2008. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Henry T. Swann, III Henry Swann, III Post Office Box 4415 St. Augustine, Florida 32085 Dennis Robert Schutt, Esquire Schutt, Schmidt & Noey 2700-C University Boulevard West Jacksonville, Florida 32217 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues in this matter are whether Countrywide Siding and Windows, Inc., failed to secure workers compensation that meets the requirements of Chapter 440, Florida Statutes, and, if so was correctly assessed a penalty for violating, the workers’ compensation laws of Florida.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation for the benefit of their employees. § 440.107, Fla. Stat. (2009). Respondent is a corporation domiciled in Florida and engaged in the construction industry. On February 13, 2009, Petitioner’s investigator, Carl Woodall, stopped to spot check a house in the Cabrille Lane area of Panama City, Florida, where he saw workers installing siding. Petitioner’s investigator is the only employee for Petitioner who investigated and developed the substantive evidence in this case. Other employees, who have no direct knowledge of the underlying facts, calculated the amounts of the proposed penalties. Mr. Woodall inquired of the workers and ascertained that they worked for Respondent. The investigator then contacted the Respondent to determine whether Respondent had secured or obtained workers’ compensation insurance under Florida’s workers’ compensation law. Respondent’s representative indicated that it maintained workers’ compensation insurance through Employee Leasing Service (ELS), an employee-leasing company. There is no dispute that in February 2009, Respondent leased its workers from ELS and that under the lease agreement, ELS provided workers’ compensation coverage to Respondent and its leased workers. Other evidence suggested that in past years, Respondent had leased its workers from other employee-leasing companies. The evidence was not specific as to who those companies were. The evidence, while not specific, also suggested that Respondent paid its leased employees bonuses and sometimes loaned them money.1/ In general, employee-leasing agreements provide clerical duties to client companies including tax deduction and workers’ compensation, in exchange for a fee. Client companies’ workers who are registered with the leasing company are employees of the leasing company, not the client company. In this case, the specific contract between ELS and Respondent was not introduced into evidence. Likewise, neither the contract nor the proof of coverage between ELS and its workers’ compensation insurer was introduced into evidence and it is unknown who the actual workers’ compensation insurer was or is. Therefore, there is no credible evidence regarding the specific terms of the contract between ELS, Respondent or the workers’ compensation insurer. Importantly, there is no evidence regarding any fee arrangement between ELS and Respondent showing that workers’ compensation coverage was provided based on payroll or that direct payments to Respondent’s workers constituted payroll under the terms of the lease contract for which workers’ compensation had not been secured. Petitioner’s investigator telephoned ELS and learned from some person (purportedly Ellen Clark) that it did have an employee-leasing contract with Respondent and did maintain workers’ compensation on Respondent’s workers. The investigator was also told that ELS intended to or had cancelled its employee-leasing contract with Respondent effective either February 14 or 15, 2009. No one from ELS testified at the hearing and the substance of the above conversation, as with all the testimony about purported ELS statements, constitutes hearsay that was not corroborated by other credible evidence in the record. As such, the substance of these conversations is not found as facts, other than to establish that Petitioner’s investigator had a conversation with a person purporting to Represent ELS. However, on February 14, 2010, the investigator did not take any action against Respondent since he felt Respondent was in compliance with Florida’s workers’ compensation law. On February 17, 2009, Mr. Woodall again returned to the Cabrille Lane area and observed Respondent’s workers installing siding on a house. One of the workers, Mike Moore, revealed to Mr. Woodall that he was a subcontractor of Respondent, but that the other worker, Ryan Grantham, was Respondent’s employee. The subcontractor was in compliance with Florida’s workers’ compensation laws. In order to find out if the other worker was covered by workers’ compensation insurance, Mr. Woodall met with Ronnie Creed, Respondent’s owner and officer, who was exempt under Florida’s workers’ compensation law. Mr. Creed was unaware of Respondent’s workers’ compensation status but put Mr. Woodall in contact with his wife, India Creed, who was also exempt from Florida’s workers’ compensation law. Ms. Creed told Mr. Woodall that Respondent had received a letter from ELS that day, purportedly notifying it that ELS intended to cancel or had cancelled its employee-leasing contract with Respondent. The letter was not introduced into evidence and it is unclear whether the letter discussed the workers’ compensation insurance coverage ELS maintained on its employees that it leased to Respondent. Again, no one from ELS or its workers’ compensation insurer testified at the hearing regarding its lease or which workers were covered under the lease. The record is devoid of any evidence that these employees were no longer employed by ELS and, more importantly, not covered by ELS’s workers’ compensation coverage on February 17, 2009.2/ Mr. Woodall also checked the Department’s Coverage and Compliance Automated System (CCAS) database. CCAS is a database that maintains information on business entities in Florida and whether they have secured workers’ compensation and /or whether exemptions from workers’ compensation have been granted to eligible company officers. CCAS did not reflect that Respondent had a workers’ compensation insurance policy in place. However, the investigator did not check to see if ELS or another employee-leasing company had such a policy. Similarly, the investigator did not investigate the terms of those contracts and whether those contracts considered any bonuses or loans paid by Petitioner to its employees to be payroll, and if it was, whether any workers’ compensation coverage was dependent on such payments being reported to these companies. As such, the information in that system is hearsay which may or may not indicate a need to investigate further. Moreover, CCAS is simply a database of information reported by others and maintained by the Petitioner. Its reliability is questionable in this case given the multiple contractual entities involved in the provision of workers’ compensation to Respondent and the lack of any direct evidence from those contractual entities. Therefore, the fact that CCAS did not reflect that Respondent had workers’ compensation insurance is not given weight in this Order and is neither clear nor convincing evidence demonstrating that Respondent failed to secure workers’ compensation insurance on February 17, 2009, or for prior years. Based on his belief that Respondent had not secured workers’ compensation on its workers, Mr. Woodall issued a Stop- Work Order and Order of Penalty Assessment and a Request for Production of Business Records for Penalty Assessment Calculation to Respondent (Request) asking for Respondent’s business and financial records related to Respondent’s business and employee leasing for the last 3 years. The records were requested to construct Respondent’s alleged payroll and determine the employees of Respondent. There was no evidence that there was any inquiry into past employment leasing companies that Petitioner contracted with or the terms of those contracts. As with the contract with ELS, there was no inquiry into whether loans or bonuses or any other money paid by Respondent to its workers was considered payroll, required to be reported, or had any impact on workers’ compensation coverage that the leasing companies provided on the employees they leased to Respondent. Respondent complied with the Request and provided the requested business records to Petitioner. Mr. Woodall forwarded the financial records to Petitioner’s penalty calculator, Monica Moye. Beyond checking CCAS, Ms. Moye was not responsible for factually determining whether Respondent had properly secured workers’ compensation insurance during the period under review. Using Respondent’s financial records, Ms. Moye calculated a penalty to be assessed to Respondent based on class code 5645 for siding installation as established by the National Council on Compensation Insurance in the Scopes Manual. She also separated Respondent’s periods of alleged noncompliance based on periodically changing approved manual rates. Approved manual rates are set by the National Council on Compensation Insurance and represent the amounts employers would pay in workers’ compensation premiums for tasks performed by their employees. On March 13, 2009, Petitioner issued an Amended Order of Penalty Assessment, assessing a penalty of $159,002.46 to Respondent. Based on additional records submitted by Respondent, Petitioner recalculated the previously-assessed penalty and issued a 2nd Amended Order of Penalty Assessment to Respondent on June 9, 2009, reducing the assessed penalty to $130,914.99. Additionally, following the hearing, the Department revised the assessed penalty and issued a 3rd Amended Order of Penalty Assessment (3rd Amended Order) reducing the assessed penalty to $130,135.03.3/ The list of employees attached to the 3rd Amended Order of Penalty Assessment contains several incidents of imputed employment listed as “cash,” “unknown” or “Star H.” There is nothing in the record that supports a finding that these amounts were paid for employment purposes. However, the evidence did not establish that Petitioner did not secure workers’ compensation coverage and the issues regarding the correctness of the amount of penalty assessed against Respondent is not addressed in this Recommended Order. Since the evidence did not establish that Respondent failed to secure workers’ compensation, the Stop-work order should be cancelled and the 3rd Amended Order of Penalty Assessment dismissed.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter a Final Order that Petitioner failed to establish by clear and convincing evidence that Petitioner failed to secure workers’ compensation to its employees and canceling the Stop Work Order and dismissing the 3rd Amended Order of Penalty Assessment. DONE AND ENTERED this 2nd day of April, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2010.
The Issue The issue is whether Respondent discriminated against Petitioner in employment on the basis of age in violation of section 760.10(1)(a), Florida Statutes (2013).
Findings Of Fact Formed in 1976, Respondent is a small federally chartered savings bank, also known as a community bank, with its main office in Miami. At all material times, Respondent has maintained three or four branch offices in south Florida. Respondent has 73 fulltime and parttime employees in its main and branch offices and has, at all times, employed the jurisdictional minimum of employees to be covered by the Florida Civil Rights Act of 1992, as amended. Respondent is a minority-owned bank that specializes in service to the Hispanic community. Respondent's primary banking services are checking, savings, and mortgage lending for residential and commercial properties. Respondent suffered a decline in business during and after the 2008 recession. Even so, in one fiscal year ending between 2008 and 2012, Respondent had $1-$1.5 million in earnings. However, its revenues declined sharply in 2011 and 2012. For the fiscal year ending June 2012, Respondent reported $8.5 million in losses. In anticipation of future losses, Respondent transfered $6 million from capital to a loss-reserve fund. Due to Respondent's decline in business, as well as a decline in the value of Respondent's mortgage portfolio, the Office of the Comptroller of the Currency (OCC) conducted ongoing examinations from 2008 through 2012. Eventually, in September 2012, Respondent and OCC entered into a Consent Order, under which Respondent continues to operate. Among other things, the Consent Order has required Respondent to streamline its workforce in order to reduce expenses. Although the Consent Order had not been executed during the summer of 2012, Respondent's officers and directors were aware at that time that their bank would soon be under a consent order that would require significant restructuring of Respondent's workforce. Petitioner, who was born on January 27, 1941, started working at Respondent in the late 1980s. During the ensuing 26 years, she has always worked in the bookkeeping department, which is located in the main office. In 2012, Petitioner's primary duty was to process Automated Clearing House (ACH) returns on unsuccessful debit transactions. This job required an employee manually to enter a code for the reason for the return--e.g., insufficient funds or incorrect account number--and ensure that the proper account credit was entered. Although the components of this job have been progressively automated over the years, Petitioner testified that she was spending five to six hours daily on this work during mid-2012. In 2012, Petitioner also performed a couple of other jobs at the bank. She closed overdrawn customer accounts, which required four to five hours weekly. And she backed up for an employee who handled large checks--i.e., over $5000--to ensure that they were properly processed by the bank. Petitioner testified that no other employee was trained to perform the ACH returns. One or two other employees performed this assignment when Petitioner was not in the office, but Petitioner found their work to be substandard. In the first half of 2012, Petitioner's supervisor asked her to train another employee, Lisette Hadad, to handle the ACH returns. Petitioner did so, typically spending an hour or two at a time, over the course of three months. On July 12, 2012, when the training was substantially done, Respondent terminated Petitioner and turned her ACH duties over to Ms. Hadad. Ms. Hadad, who was 57 years old at the time, has been with the bank for 14 years. She started as a teller, but, after three years, was promoted to vault teller. After serving as vault teller, Ms. Hadad was promoted to assistant head teller. After two years in this position, Ms. Hadad was promoted to head teller. Ms. Hadad served as head teller until 2007 when Respondent created the wire transfer department and directed Ms. Hadad to handle all of the wire transfers for the bank. This is a position of high responsibility because the bank has many customers with multinational ties. As a result, Ms. Hadad daily handles wire transfers totalling millions of dollars and must ensure that each transfer complies with applicable federal laws. However, wire transfers did not fill Ms. Hadad's work day. She has assumed all of Petitioner's duties concerning ACH returns while continuing to perform the wire transfer duties. Several nondiscriminatory reasons explain Petitioner's termination. First, in the summer of 2012, the bookkeeping department consisted of three employees, and the other two employees had worked with the bank for about four years longer than Petitioner and performed work that Petitioner was not able to perform. At the same time, the bookkeeping department was slowly losing staff due to automation. Ms. Hadad did not transfer to the bookkeeping department after Petitioner was terminated. One of the other bookkeeping employees was transferred to an opening in customer services, so that, today, the bookkeeping department consists of a lone employee. Petitioner testified that the ACH return work resisted automation. However, over time, more parts of this job have been automated, according to Ms. Hadad. In the same vein, Petitioner's abilities were limited. While she was performing the ACH return work, external auditors routinely found the same errors, year after year. Since Ms. Hadad has assumed this responsibility, the external auditors have found the work to be much better--to the point that, last year, there was not a single repeated error. Nothing in the record supports an inference of age discrimination in the termination of Petitioner. Respondent had a pressing need to cut its workforce in response to reduced revenues in general and auditors' demands in particular. At the same time, Respondent maintains a remarkably mature workforce and does not appear to have used workforce reductions as a means to trim the age of its workforce. At the time of the hearing, four of Respondent's employees were in their 70s, 14 of its employees were in their 60s, and 23 of its employees were in their 50s-- with the average age of its employees being 50 years. Respondent added two employees in 2012; both were in their 70s. At the hearing, Petitioner admitted that her allegation of the termination of another employee of advanced years was a mistake. The former employee testified that she chose to retire less than three months after Petitioner had been terminated. At the time of her retirement, at 72 years of age, this employee rejected an offer from the bank to continue to work part time. Respondent also maintains an unusually cohesive, loyal workforce. As noted above, Petitioner's coworkers in the bookkeeping department had each worked with the bank for 30 years. The 72-year-old employee mentioned in the preceding paragraph had worked with the bank for 33 years at the time of her retirement. The Chief Financial Office, Victor Fernandez, who informed Petitioner that she was being terminated, has worked at the bank for 20 years and, earlier in his career, regularly had lunch with Petitioner. From this personal relationship with Petitioner, Mr. Fernandez knew that she owned or leased an apartment at Hallandale Beach, and she intended to live in the apartment after she retired. For this reason, at the meeting at which Mr. Fernandez terminated Petitioner, he tried to make Petitioner feel better by mentioning how she could now live in her apartment at the beach. This comment was not an unguarded disclosure of an unlawful focus on Petitioner's age; rather it reflected Mr. Fernandez's concern for the feelings of Petitioner and his knowledge that, at some point, she wanted to retire to the apartment. Given the above-cited evidence clearly establishing nondiscriminatory reasons for Petitioner's termination, it hardly seems necessary to add that, in any event, Mr. Fernandez was only communicating to Petitioner a decision that had been made by others. As part of its streamlining efforts, Respondent had retained outside consultants to study Respondent's workforce for inefficiencies and redundancies. The consultants recommended workforce reductions, which were then considered and implemented by department managers in conjunction with human resources staff. Mr. Fernandez took no part in this process as it applied to Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 14, 2014. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jay J. Lorenzo, Esquire Lorenzo and Rodriguez-Rams 9192 Coral Way, Suite 201 Miami, Florida 33165 Eddy O. Marban, Esquire Law Offices of Eddy O. Marban 1600 Ponce De Leon Boulevard, Suite 902 Miami, Florida 33134 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Forgue General Contracting, Inc., violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation coverage; and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure the payment of workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Respondent operates a construction company in Florida, and Respondent has been in business since 2004. On October 31, 2018, Margaret Cavazos, a compliance investigator with the Department, conducted a random workers’ compensation check at a worksite located at 1172 East State Road 434 in Winter Springs, Florida. The worksite is a two-story commercial building with five individual storefronts. Investigator Cavazos arrived at the worksite at 8:30 a.m. There, she observed four individuals who she believed were preparing the exterior of the building for painting. One person was covering a window with tape and brown construction paper. Two more individuals were standing in the bucket of a boom lift approximately 15 feet above the ground next to the building. They appeared to be placing blue tape over a sign of one of the businesses in the building. A fourth person was positioned by a truck supervising the activity. Investigator Cavazos further noticed that several of the business names had already been covered with construction paper and tape. Investigator Cavazos approached the person standing by the truck and introduced herself. He identified himself as Jose Luis Chachel. Mr. Chachel informed Investigator Cavazos that he and the other three individuals at the worksite were working for a company called RC Painting Services, Inc. (“RC Painting”). Mr. Chachel further stated that they were preparing the building to be painted. The other three individuals at the worksite identified themselves to Investigator Cavazos as Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque. Investigator Cavazos watched the four individuals work at the jobsite for about an hour, then they departed. Investigator Cavazos, however, did not obtain any information from Mr. Chachel or the other individuals concerning how long they had worked for RC Painting, when they had arrived at the jobsite, their rate of pay, or whether RC Painting had actually paid them for their work. At the final hearing, Investigator Cavazos testified that her duties for the Department include inspecting businesses and worksites to determine whether a business has obtained the required workers’ compensation insurance coverage. Investigator Cavazos explained that a business that performs construction- related work must have workers’ compensation coverage. Therefore, Investigator Cavazos believed that, prior to beginning the painting activities, RC Painting should have secured sufficient workers’ compensation coverage for all four individuals identified at the worksite. After learning the name of the business that arranged for the presence of the four individuals at the jobsite, Investigator Cavazos consulted the Department’s Coverage and Compliance Automated System (“CCAS”) database for information on RC Painting. CCAS is a Department database that tracks workers’ compensation insurance coverage. CCAS contains coverage data from insurance carriers, as well as any workers’ compensation exemptions on file with the Department. Insurance providers are required to report coverage and cancellation information, which the Department uses to update CCAS. CCAS had no record that RC Painting carried any workers’ compensation coverage for the four individuals Investigator Cavazos observed at the worksite. While reviewing CCAS, Inspector Cavazos also noted that the Department did not have on file any request from RC Painting for an “exemption” from workers’ compensation coverage. An exemption is a method by which a business’s corporate officer may exempt him or herself from the requirements of chapter 440. See § 440.05, Fla. Stat. CCAS also revealed to Investigator Cavazos that on the date of her inspection, RC Painting had an active employee leasing agreement with SouthEast Personnel Leasing (“SouthEast Leasing”), an employee staffing company. At the final hearing, Inspector Cavazos explained that a business is not required to obtain workers’ compensation insurance for its employees if coverage is properly provided by or through an employee leasing company’s workers’ compensation policy. However, in order for an employee leasing company to become responsible for the workers’ compensation coverage of a particular employee, the business seeking coverage for that employee must ensure that the employee submits an application to the leasing company. Thereafter, if (and only if) the leasing company accepts the application, the leasing company becomes accountable for the workers’ compensation insurance coverage for that employee. Investigator Cavazos contacted SouthEast Leasing. SouthEast Leasing provided Investigator Cavazos an active roster of employees it leased to RC Painting. However, neither Mr. Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, nor Jenny Araque were listed on this roster. Therefore, Investigator Cavazos concluded that none of the four individuals she identified at the worksite were covered by workers’ compensation insurance under RC Painting’s leasing arrangement with SouthEast Leasing on October 31, 2018. After determining that neither CCAS nor SouthEast Leasing recorded any workers’ compensation coverage for the persons at the worksite, Investigator Cavazos contacted RC Painting’s owner, Roberto Chavez. (Mr. Chachel provided Investigator Cavazos with his phone number during her inspection.) Investigator Cavazos testified that, during their phone call, Mr. Chavez confirmed that the four individuals worked for him. Mr. Chavez further informed Investigator Cavazos that RC Painting had been hired by Respondent to paint the building. At that point, Investigator Cavazos called Respondent to inquire about workers’ compensation coverage for Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque. Investigator Cavazos spoke with one of Respondent’s employees, Anthony Gonzalez. Mr. Gonzalez confirmed that Respondent engaged RC Painting to paint the building. Continuing to search for active workers’ compensation coverage, Investigator Cavazos discovered that Respondent also had an employee leasing agreement with SouthEast Leasing. Investigator Cavazos reviewed SouthEast Leasing’s roster which recorded only two covered employees for Respondent, Anthony Gonzalez and Edward Forgue (Respondent’s president). As with RC Painting’s leasing agreement, Respondent’s leasing agreement with SouthEast Leasing did not cover Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, or Jenny Araque on October 31, 2018. As detailed below, under section 440.10(1), a contractor is liable for, and is required to secure, workers’ compensation coverage for all employees of a subcontractor to whom the contractor sublets work. (Section 440.10(1)(c) also directs the contractor to require a subcontractor to provide evidence of workers’ compensation insurance.) Therefore, as a contractor hiring a subcontractor for construction work, Respondent was required to exercise due diligence to ensure that all RC Painting’s employees who were painting the building were covered by workers’ compensation insurance. On October 31, 2018, based on her findings, Investigator Cavazos issued a Stop-Work Order to RC painting. Later that day, Mr. Chavez ventured to the Department’s local office to determine how his business could be released from the Stop-Work Order. There, he met with district supervisor, Salma Qureshi. Ms. Qureshi informed Mr. Chavez that, in order for his company to return to work, he needed to pay a $1,000 fine and complete an Affirmation. She explained to Mr. Chavez that on the Affirmation, he was to describe how RC Painting intended to come into full compliance with workers’ compensation coverage requirements. Mr. Chavez had, in fact, brought with him a cashier’s check for $1,000. (The amount was included on the Stop-Work Order.) Mr. Chavez then completed an Affirmation before Ms. Qureshi. On the Affirmation, Mr. Chavez wrote the names of the four individuals Investigator Cavazos identified at the jobsite. Next to each name, Mr. Chavez wrote “$20.” Below the names, he wrote “I am terminating.” Mr. Chavez then signed and dated the Affirmation. At the final hearing, Ms. Qureshi expressed that Mr. Chavez told her that he was going to pay each of the four individuals $20 for the day’s work they performed on October 31, 2018, and then he was terminating them. In addition to issuing the Stop-Work Order to RC Painting, on October 31, 2018, Investigator Cavazos issued a Stop-Work Order for Specific Worksite Only to Respondent, which was served on November 2, 2018. Investigator Cavazos also served Respondent with a Request for Production of Business Records for Penalty Assessment Calculation. Through this document, the Department requested several categories of business records from Respondent for the period of November 1, 2016, through October 31, 2018. The requested documents pertained to: employer identification, payroll documents, account documents, disbursements, workers’ compensation coverage, professional employer organization records, temporary labor service, exemptions, subcontractor records, and subcontractors’ workers’ compensation coverage. Based on Investigator Cavazos’s investigation, the Department determined that Respondent failed to secure adequate workers’ compensation coverage for its employees. Therefore, the Department proceeded to calculate a penalty based on Respondent’s lack of compliance with chapter 440. The Penalty Calculation: Nathaniel Hatten, the penalty auditor who determined the penalty the Department seeks to impose on Respondent, testified regarding his computation. Mr. Hatten explained that the penalty essentially consists of the “avoided” premium amount, or the actual premium the employer would have paid in workers’ compensation insurance for the uncovered employees, multiplied by two. To calculate the appropriate penalty for Respondent’s failure to secure workers’ compensation coverage, the Department first ascertained Respondent’s period of non-compliance. To determine this time frame, the Department referred to Florida Administrative Code Rule 69L-6.028(2), which directs that: The employer’s time period or periods of non-compliance means the time period(s) within the two years preceding the date the stop-work order was issued to the employer within which the employer failed to secure the payment of compensation pursuant to chapter 440, F.S., and must be either the same time period as set forth in the business records request for the calculation of penalty or an alternative time period or period(s) as determined by the Department, whichever is less. The employer may provide the Department with records from other sources, including, but not limited to, the Department of State, Division of Corporations, the Department of Business and Professional Regulation, licensing offices, and building permitting offices to show an alternative time period or period(s) of non- compliance. Based on these instructions, the Department deduced that Respondent’s period of non-compliance ran from November 1, 2016, through October 31, 2018, which was the two-year period preceding the date of the Stop-Work Order. (This two-year period was also the time for which the Department requested business records from Respondent.) After determining Respondent’s period of non- compliance, the Department then calculated the monetary penalty it should impose upon Respondent. In accordance with section 440.107(7)(d)1., the Department must assess against an employer: a penalty equal to 2 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it failed to secure the payment of workers’ compensation required by this chapter within the preceding 2-year period or $1,000, whichever is greater. Therefore, the Department reviewed the business records Respondent provided to ascertain the amount of Respondent’s payroll during the two-year period of non-compliance. In response to the Department’s request for documents, Respondent produced its client leasing agreement with SouthEast Leasing. This leasing agreement, however, only covered Mr. Forgue and Mr. Gonzalez. Further, the leasing agreement was only in effect from February 7, 2018, through October 30, 2018, for Mr. Forgue and February 21, 2018, through October 30, 2018 for Mr. Gonzalez. No evidence establishes that Respondent made any other payments for workers’ compensation insurance coverage outside of the SouthEast Leasing agreement. Consequently, the evidence in the record establishes that Respondent had no workers’ compensation coverage for any of its employees, officers, or subcontractor employees from November 1, 2016, through February 6, 2018. And, only Mr. Forgue and Mr. Gonzalez were covered from February 2018 through October 30, 2018. Further, Respondent did not provide any payroll information to the Department per its request for business records. Consequently, the documentation was not comprehensive enough for the Department to determine all the wages Respondent paid to its employees, or the work they performed for the period of November 1, 2016, through October 31, 2018. Therefore, the Department determined that Respondent did not provide business records sufficient for it to calculate Respondent’s complete payroll or the actual employee wages it paid over the two-year period of non-compliance. Accordingly, the Department exercised its option to “impute” Respondent’s weekly payroll from November 1, 2016, through October 31, 2018. To calculate Respondent’s imputed weekly payroll, section 440.107(7)(e) directs that the gross payroll for an employer who provides insufficient business records is imputed at the statewide average weekly wage, multiplied by 1.5, for each employee who worked during the period requested for the penalty calculation. Therefore, the Department obtained the statewide average weekly wage effective at the time of the Stop- Work Order ($917.00)2/ for each identified employee, corporate officer, and subcontractor, then multiplied that number by 1.5. See § 440.107(7)(e), Fla. Stat.; and Fla. Admin. Code R. 69L- 6.028(3)(a). The Department imputed the payroll for all four individuals Investigator Cavazos observed at the worksite on October 31, 2018 (Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque), for all periods of non- compliance (November 1, 2016 through October 31, 2018). No evidence established that these individuals were covered under a workers’ compensation policy either through Respondent, RC Painting, or SouthEast Leasing. The Department also included Mr. Forgue for a period of non-compliance from January 22, 2018, through February 8, 2018. The Department imputed his payroll during this period of time explaining that Respondent did not have an active workers’ compensation exemption on file for Mr. Forgue. Neither was he covered by SouthEast Leasing’s policy during this brief timeframe. Therefore, Respondent was required to carry workers’ compensation for Mr. Forgue from January 22, 2018, through February 8, 2018. See Fla. Admin. Code R. 69L-6.028(3)(b). To calculate a penalty based on the imputed payroll, the Department assigned Respondent’s employees the highest rated workers’ compensation classification code. The classification code is based on either the business records submitted or the investigator’s observation of the employees’ activities. In this case, the business records Respondent provided to the Department were not sufficient to categorize the exact type of work that the identified workers performed for Respondent over the two-year period of non-compliance. However, during her investigation of the jobsite on October 31, 2018, Investigator Cavazos observed the four employees engaging in activities associated with “painting.” According to the Scopes Manual issued by the National Council on Compensation Insurance, Inc. (“NCCI”), class code 5475 is applied to “painting contractors engaged in painting.”3/ Consequently, the Department used class code 5474 for all Respondent’s employees and corporate officer for the penalty period. See Fla. Admin. Code R. 69L-6.028(3)(b) and 69L- 6.021(2)(jj)(painting is classified as “construction activity”). Therefore, to calculate the premium amount for the workers’ compensation insurance Respondent should have paid for its “employees” (Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque) and officer (Mr. Forgue), the Department applied the manual rates corresponding to class code 5474. Thereafter, based on: 1) the total periods of non- compliance, 2) Respondent’s calculated payroll for the periods of non-compliance, and 3) the estimated premium for workers’ compensation insurance, the Department issued the Amended Order of Penalty Assessment (“Penalty Assessment”) on November 30, 2018, which was served on Respondent on February 28, 2019. The Penalty Assessment seeks to impose a penalty of $129,089.60 against Respondent. At the final hearing, Respondent argued that the individuals Investigator Cavazos identified at the worksite on October 31, 2018, were never hired by Respondent’s subcontractor, RC Painting. Therefore, they are not “employees” under chapter 440, and Respondent is not an “employer” for purposes of securing workers’ compensation coverage. Consequently, Respondent argues that the penalty the Department seeks to assess against Respondent is not warranted. Mr. Chavez testified at the final hearing for Respondent describing his employment relationship with Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque. Initially, Mr. Chavez confirmed that Respondent hired RC Painting to paint the exterior of the shopping plaza. Regarding the four individuals Investigator Cavazos identified at the jobsite, however, Mr. Chavez denied that they were “employees” of RC Painting on October 31, 2018. Mr. Chavez explained that he used SouthEast Leasing to “hire” his employees. Mr. Chavez asserted that before he puts someone to work, he requires them to complete an employment application with SouthEast Leasing. Only after SouthEast Leasing approved the employee would he allow the individual to work on a job. In this matter, Mr. Chavez denied that he had ever worked with Mr. Chachel before, or ever met the other three individuals that Mr. Chachel brought with him to the jobsite. Mr. Chavez maintained that he called Mr. Chachel on the evening of October 30, 2018, about the prospective painting job. He then asked Mr. Chachel to bring two other workers and meet him at the jobsite the following morning. Mr. Chavez testified that he instructed Mr. Chachel that he would need to send information to SouthEast Leasing before anyone actually started working on the project. Mr. Chavez further contended that he did not have any discussion with Mr. Chachel about wages or the rate of pay for the job. He declared that he never commits to paying any prospective employee before ascertaining what type of skills they possess. Mr. Chavez explained that, “anyone can tell you, ‘I’ve been painting all of my life,’ and they show up and don’t know how to paint, or they don’t know how to do anything.” In response to Inspector Cavazos’s testimony, Mr. Chavez exclaimed that he never told her that the four individuals were his “employees.” He merely relayed that they were “with” him. Mr. Chavez also insisted that he never authorized Mr. Chachel or his crew to start preparing the building for painting prior to meeting with him. Mr. Chavez further relayed that Respondent provided the boom lift for the job. But, he never instructed Mr. Chachel to begin using it. Mr. Chavez arrived at the shopping plaza around 9:30 a.m. However, by that time Investigator Cavazos had issued the Stop- Work Order, and only Mr. Chachel remained at the scene. Regarding the Affirmation he completed at the Department’s district office, Mr. Chavez testified that, other than Mr. Chachel, he did not know the names of individuals who Investigator Cavazos identified at the jobsite. He asserted that he wrote their names on the Affirmation only after Ms. Qureshi spelled them out for him on a sticky note. Mr. Chavez further professed that he only penned “$20” by each name because Ms. Qureshi told him that the Department would not release him from the Stop-Work Order until he added the wages he paid to each individual. Mr. Chavez claimed that Ms. Qureshi specifically instructed him to insert a number by each employee. Mr. Chavez declared that he felt like he had no choice but to include “$20” on the Affirmation if he wanted to return to work. In actuality, however, Mr. Chavez insisted that he did not pay Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, or Jenny Araque anything for their activities on October 31, 2018. Ms. Qureshi testified for the Department on rebuttal. She credibly voiced that she did not write out the names of the four “employees” for Mr. Chavez to list on his Affirmation. Neither did she suggest a wage amount for their work, or force Mr. Chavez to write that he “terminated” them. On the contrary, Ms. Qureshi attested, clearly and without hesitation, that Mr. Chavez independently completed his sworn Affirmation, and he did not ask for her assistance with the specific information he wrote down. Ms. Qureshi persuasively stated that Mr. Chavez knew the names of Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque when he composed the Affirmation. Further, Mr. Chavez expressly told her that he was going to pay the four individuals $20 for the day, and that he was terminating them. The competent substantial evidence in the record establishes that Jose Luis Chachel, Juan Carlos Vasquez Garcia, Artemia Vasquez, and Jenny Araque were “employees” of RC Painting under section 440.02(15) on October 31, 2018. Based on this finding, the Department demonstrated, by clear and convincing evidence, that Respondent failed to secure workers’ compensation insurance coverage or a workers’ compensation exemption for four employees for the period of November 1, 2016, through October 31, 2018, as well as its corporate officer from January 22, 2018, through February 8, 2018. Accordingly, the Department met its burden of proving that Respondent violated chapter 440 and should be penalized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Forgue General Contracting, Inc., violated the requirement in chapter 440 to secure workers’ compensation coverage, and imposing a total penalty of $129,089.60. DONE AND ENTERED this 18th day of October, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2019.
Findings Of Fact The Division of Employment and Training has alleged that the Putnam County Board of County Commissioners, in administering grants under the Comprehensive Employment and Training Act (CETA), failed to comply with the applicable rules and regulations. As a result thereof, a total of $20,653.00 was spent in violation of applicable rules and regulations. The Putnam County Board of County Commissioners acknowledged that the money was spent as alleged. However, the County contends that the spending was not in violation of CETA, were legitimate costs and should, therefore, be allowed. The findings of fact of the Hearing Officer as set out in the Recommended Order are hereby accepted and adopted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner: (1) $3,124 for wages paid to Charles Livingston, (2) $196 in excess workman's compensation charges, and (3) those costs associated with participants later found to be ineligible by reason of not being unemployed 15 of the 20 weeks prior to the date of their applications and whose ineligibility was based upon employment in Putnam County prior to their applications being filed. All other questioned costs should be allowed. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Sam S. Browning, III Box 758 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER =================================================================
