The Issue The issue in this case is whether Respondent, All Phase Construction and Development, LLC (“All Phase”), failed to provide workers’ compensation coverage for its employees and, if so, what amount is owed, including any penalties imposed by Respondent, Department of Financial Services, Division of Workers’ Compensation (“Department”).
Findings Of Fact The Department is the State agency responsible for, inter alia, monitoring businesses within the State for compliance with workers’ compensation insurance compliance. At all times relevant hereto, All Phase was a limited liability company duly existing pursuant to the laws of the State of Florida. All Phase came into existence on April 2, 2007. The sole member and manager of All Phase is David M. Robey. The address of record for All Phase is 1906 North Armenia Avenue, Suite 214, Tampa, Florida. The Registered Agent for All Phase listed in, Department of State, Division of Corporation, records is TK Registered Agent, Inc., located at 101 E. Kennedy Boulevard, Suite 2700, Tampa, Florida. On or about June 9, 2011, the Department received an anonymous call concerning All Phase. The call, which the Department calls a “public referral,” was from an anonymous source claiming that All Phase was not providing workers’ compensation insurance for its employees. Mr. Hill was assigned to investigate the complaint. Mr. Hill first determined from the Department’s coverage and compliance automated system (“CCAS”) that there was no current workers’ compensation coverage listed for All Phase. CCAS showed that All Phase had coverage in place from January 1, 2010, until January 1, 2011, but there was no coverage after that period. The calendar year 2010 coverage had been provided by a professional employer organization (PEO). After ascertaining there was no current workers’ compensation coverage, Mr. Hill visited the All Phase offices in Tampa on June 9, 2011. Upon locating the office, Mr. Hill went inside and met a woman who identified herself as Michelle Little, secretary for All Phase. Ms. Little advised Mr. Hill that Mr. Robey, the owner, was at a meeting in Orlando. She told Mr. Hill that Mr. Robey was a certified general contractor, who was involved in various construction jobs. Mr. Hill later independently verified Mr. Robey’s general contractor’s certification and license. Ms. Little said there were four employees in the office, plus Mr. Robey and his brother, a job estimator. Mr. Hill could not independently verify Ms. Little’s description of the office staff. Mr. Hill then checked to see if there was any workers’ compensation insurance coverage in place for the alleged employees, but did not find any. Mr. Hill called Mr. Robey and left a message; he told Mr. Robey to return the call by the end of that business day or Mr. Hill would have a Stop- Work Order (“SWO”) entered. Mr. Hill did not receive a return telephone call. On the next day, June 10, 2011, Mr. Hill went to the All Phase offices and posted an SWO on a door of the building. Mr. Robey disputes whether the SWO was left on the front door or rear door of the building, but there is no consequence as to that distinction. Mr. Hill also mailed a copy of the SWO via certified mail to the address of All Phase’s registered agent, TK Registered Agent, Inc.1/ Two days later, Mr. Hill sent out a “Request for Production of Business Records for Penalty Assessment Calculation” (“Business Records Request”). The Business Records Request listed 13 categories of documents and information needed by the Department to accurately calculate the penalty for All Phase’s failure to have workers’ compensation coverage in place. The Business Records Request contained a clear and concise warning that failure to produce the requested records would result in the Department imputing a weekly payroll amount for each purported employee. When Mr. Robey failed to produce the requested records, Mr. Hill prepared an Order of Penalty Assessment (“OPA”). The OPA was amended on July 7, 2011, showing a total penalty of $34,141.15 for failure to provide adequate workers’ compensation coverage. The OPA was sent via certified mail to All Phase’s registered agent of record. The OPA addresses only two employees for All Phase: David M. Robey and Michelle Little. Mr. Hill could not verify that any other employees described by Ms. Little earlier actually worked for All Phase. Mr. Robey was assigned a class code of 5403, i.e., carpentry, not otherwise classified; Ms. Little was assigned code 8810, i.e., clerical office employee. The other office workers and estimator were not included in the calculation because Mr. Hill could not find any evidence they ever worked for the company. Mr. Robey maintains that Ms. Little was not really an employee of All Phase, but inasmuch as she held herself out to be the business’ secretary and was working in the All Phase office when Mr. Hill went to investigate, the Department’s designation of her as an employee of All Phase is justified and reasonable. Mr. Robey also maintains that he was not actively engaged in construction but was merely acting as a management company. He did not adequately explain what part a management company plays in a construction project, but said at times when he was doing construction he would get workers’ compensation coverage. There is no persuasive evidence to support Mr. Robey’s claim concerning his business. He is a certified general contractor working under a company with the words “construction and development” in its title. Mr. Robey had various explanations for not providing the Department with his business records. He first said that his company had been evicted from his office after losing all of its business. He said the company stopped operating and therefore did not maintain any records. He said the records at his old office became unavailable after he was evicted. Then Mr. Robey said he was afraid to turn over his records lest the Department find evidence of other payments to friends and family members that could be claimed to be payroll payments. He was afraid the assessment would be even higher if that happened. No matter the actual reason, All Phase did not respond to the Business Records Request. Had Mr. Robey provided his business records it is possible his assessment could have gone down (if the facts he alluded to, but did not prove at final hearing were true, e.g., that Ms. Little was just a friend helping out and that Mr. Robey was the only employee of the company and was eligible for an exemption from coverage, etc.). Mr. Rimert did the calculations for the penalty appearing in the OPA. He calculated the amount of the workers’ compensation insurance premium All Phase should have paid during the past three years for Mr. Robey and Ms. Little. Absent their actual salaries, Mr. Rimert used the average weekly wage set forth in the information bulletin issued by the National Council on Compensation Insurance, Inc., to impute wages for the two known employees. Applying the manual rates for each class code, Mr. Rimert calculated the premium and then, pursuant to statute, multiplied the amount by one and a half. His calculations form the basis for the assessed penalty in the OPA. One portion of Mr. Rimert’s calculations is amiss: The three-year period he utilized for making the assessment calculation included the period of time All Phase was providing workers’ compensation coverage through a PEO. Mr. Rimert said that he simply presumed that the employees covered by the PEO could also have been paid directly by Mr. Robey for other work done during the time the PEO was providing coverage. Mr. Rimert’s calculations supposed a full 40-hour work week for the employees, so any work Mr. Robey supposedly paid directly to himself and Ms. Little would have been in excess of a normal work week. There is no persuasive evidence to suggest that Mr. Robey or Ms. Little worked more than a regular 40-hour week. Mr. Robey testified, and the Department did not refute, that Ms. Little did not even live in the State of Florida for all of the three years used in Mr. Rimert’s calculations. That being the case, Ms. Little could not be an employee of All Phase for the entire period. However, there was insufficient evidence to establish exactly what periods of time Ms. Little lived outside the State of Florida.2/ The Department established that All Phase failed to provide workers’ compensation insurance coverage for Mr. Robey for the periods: June 10, 2008, through December 31, 2008, for a penalty of $7,415.10; January 1, 2009, through March 31, 2009, for a penalty of $2,888.93; April 1, 2009, through June 30, 2009, for a penalty of $3,108.59; July 1, 2009, through December 31, 2009, for a penalty of 5,906.24; and January 1, 2011, through June 9, 2011, for a penalty of $4,403.90. (There was, however, PEO coverage in place from January 1, 2010, through December 31, 2010.) The total penalty for failing to cover Mr. Robey is $17,816.52. The Department established that All Phase failed to provide workers’ compensation insurance coverage for Ms. Little for the periods: June 10, 2008, through December 31, 2008, for a penalty of $190.67; January 1, 2009, through March 31, 2009, for a penalty of $63.35; April 1, 2009, through June 30, 2009, for a penalty of $68.63; July 1, 2009, through December 31, 2009, for a penalty of $129.51; and January 1, 2011, through June 9, 2011, for a penalty of $100.55. (Again, the PEO coverage was in place for January 1, 2010, through December 31, 2010.) The total penalty for failing to cover Ms. Little is $552.71. The total penalty owed by All Phase for its two employees is $18,369.23.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division Workers’ Compensation, assessing a penalty against All Phase Construction and Development, LLC, in the amount of $18,369.23, which will be due and owing within 30 days of the date of the Final Order. Neither All Phase Construction and Development, LLC, nor any of its principles, shall be eligible to operate as a business in this State until the assessed penalty has been paid in full. DONE AND ENTERED this 9th day of October, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of October, 2012.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Order of Penalty Assessment filed May 11, 2009,1 and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. C.S.E Paving is a Florida corporation located in Delray Beach, Florida. Stephen Warden is the owner of C.S.E Paving, which engages in the business of paving. On November 24, 2008, Germaine Greer, a compliance investigator employed by the Department, observed two workers repairing and reinstalling concrete brick pavers at a Best Western Hotel. She learned that these workers were employed by C.S.E Paving. After her visit on November 24, 2008, the compliance investigator conducted research through the Coverage and Compliance Automated System database, which provides information on workers' compensation insurance coverage and exemptions. The investigator's research revealed that, during the three-year period from November 24, 2005, and November 24, 2008, C.S.E Paving had workers' compensation insurance coverage for its employees from July 25, 2006, through July 28, 2007; from July 16, 2007, through July 16, 2008; and from July 16, 2008, through August 6, 2008, when the policy was cancelled. Mr. Warden did not have an exemption from the requirement to have workers' compensation insurance coverage. Mr. Warden provided the compliance investigator with the payroll and other records requested in the business records request. Based on these records, the compliance investigator calculated the penalty to be imposed on C.S.E Paving for its failure to have workers' compensation insurance coverage during the approximately six-month period in 2005 and 2006 and the approximately four-month period in 2008. The penalty assessed in the Second Amended Order of Penalty Assessment was $13,487.64, which assessment superseded the $21,290.11 penalty assessed in the Amended Order of Penalty Assessment dated December 22, 2008. The compliance investigator looked to the NCCI SCOPES Basic Manual of Classifications ("SCOPES Manual") for classification codes attributable to the workplace operations of the persons working for C.S.E Paving. The classification code assigned by the compliance investigator to the workmen employed by C.S.E Paving between November 24, 2005, and November 24, 2006, who engaged in paving activities was Code 5221. According to the SCOPES Manual and to Florida Administrative Code Rule 69L-6.021(1)(w), Code 5221 is a code applicable to the construction industry and covers "Concrete or Cement Work Floors, Driveways, Yards, and Sidewalks & Drivers." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 5221 was $10.37 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 5221 was $6.97 per $100.00 of payroll. The classification code found in the SCOPES Manual assigned by the compliance investigators to the clerical workers employed by C.S.E Paving between November 24, 2005, and November 24, 2006, was Code 8810. According to the SCOPES Manual, Code 8810 covers "Clerical Office Employees." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 8810 was $.58 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 8810 was $.37 per $100.00 of payroll. The classification code assigned by the compliance investigator to Stephen Warden, the owner of C.S.E Paving, was Code 5606. According to the SCOPES Manual, Code 5606 covers "Contractor - Project Manager, Construction Executive, Construction Manager or Construction Superintendent." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 5606 was $3.84 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 5606 was $2.74 per $100.00 of payroll. The compliance investigator calculated the total penalty attributable to C.S.E Paving's failure to provide workers' compensation insurance coverage for its employees during the covered time periods. She obtained the names of each of the individuals included in her calculations and the amount of the gross payroll for each individual from the payroll information provided by Mr. Warden in response to the business records request. The compliance investigator calculated the penalty as follows: She listed C.S.E Paving's employees on the Penalty Worksheet; assigned each employee a classification code based on the definitions of workplace operations that most closely described the work they performed for C.S.E Paving; set out the dates during which C.S.E Paving did not provide workers' compensation insurance coverage; entered the annual or pro-rated gross payroll for each employee during the period of non- compliance; divided the gross payroll for each employee by 100; set out the approved manual rate for each employee during the period of non-compliance in accordance with his or her classification code; determined the premium that C.S.E Paving would have paid for workers' compensation insurance coverage for each employee during the period of non-compliance by multiplying the approved manual rate and one one-hundredth of the gross payroll for each employee; calculated the penalty attributable to each employee during the period of non-compliance by multiplying the premium for each employee by 1.5; and, finally, calculated the total penalty owed by C.S.E Paving attributable to its failure to secure workers' compensation insurance coverage for its employees during the time periods at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that C.S.E Paving of South Florida Inc., failed to secure workers' compensation insurance coverage for its employees in violation of Section 440.38(1), Florida Statutes, from January 1, 2006, through July 25, 2006, and from August 6, 2008, through November 24, 2008, and imposing a penalty in the amount of $13,487.64 for the failure to provide the required workers' compensation insurance coverage. DONE AND ENTERED this 28th day of September, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2009.
The Issue Whether Respondent received a salary overpayment from Petitioner.
Findings Of Fact Based on the testimony and evidence presented at the final hearing, the following findings of fact are made. At all times material to this matter, Respondent was a career service employee of Petitioner until her separation on November 2, 2018. On November 21, 2018, Petitioner issued a pay warrant to Respondent for the pay period of November 2, 2018, through November 15, 2018, in the amount of $981.29. Since Respondent was separated from the Department, the pay warrant issued resulted in Respondent being overpaid $981.29. Upon discovering the error, Petitioner issued a letter notifying Respondent of the overpayment. Petitioner later conducted an audit and determined that Respondent’s leave balance and uniform allowance payment should be deducted from the overpayment amount, which resulted in a remaining total of $349.90. On July 10, 2019, Petitioner sent Respondent an amended letter requesting the remaining overpayment balance in the amount of $349.90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order requiring Sierra McQueen-Ellis to repay Petitioner $349.90. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 20th day of December, 2019.
The Issue The issues in this case are whether Respondent, Axiom Construction Design Corporation (Axiom), failed to provide workers' compensation coverage, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing the various requirements of chapter 440, Florida Statutes. Section 440.107(3) mandates, in relevant part, that employers in Florida must secure workers’ compensation insurance coverage for their employees. At all times relevant, Axiom was a small Florida corporation engaged in the construction industry, principally installing drywall. Axiom’s principal office is located at 1067 Walt Williams Road, Lakeland, Florida. Mr. Pratt is Axiom’s owner, sole corporate officer, and registered agent. On July 23, 2014, Randall Durham conducted a job site workers’ compensation compliance investigation (Compliance Investigation). Mr. Durham spoke with Mr. Pratt at a job site at 109 Cattleman Road, the new Sarasota mall. Mr. Pratt and Al Lappohn were working the job site at the new mall. Mr. Pratt had a workers’ compensation policy in place with Southeast Personnel Leasing. Mr. Lappohn did not have an exemption from workers’ compensation coverage, and he was not covered by Axiom’s Southeast Personnel Leasing policy. On July 23, 2014, Mr. Pratt, as Axiom’s representative, was hand-served a Stop-Work Order1/ and a Request for Production of Business Records for Penalty Assessment Calculation (Request). This Request encompassed all of Axiom’s payroll documents, account documents, disbursements, workers’ compensation coverage policies, and professional employer organization records from January 4, 2013, through July 23, 2014. Mr. Pratt provided the certificates of liabilities, payroll and tax records for 2013, and additional business records to the Department. These records were given to Mr. Knopke to calculate the penalty. In reviewing the records, Mr. Knopke determined that Mr. Pratt, Mr. Lappohn and Frank Cutts were employees of Axiom, and that Axiom did not provide workers’ compensation coverage for them. Mr. Cutts worked for Axiom at a Family Dollar Store build-out in Orlando in early 2014. Mr. Cutts swept up after the drywall was installed in the store, and was paid $125. Axiom conceded it owed the workers’ compensation penalty based on the work Mr. Lappohn and Mr. Cutts performed. The business records provided that during the audit period Mr. Pratt had dual employment, payment being paid outside of leasing. Dual employment is when a business has a leasing policy and there is extraneous payroll that is paid outside of the leasing policy. Payments received outside of a leasing policy are considered unsecured payroll for the purposes of calculating a penalty against an employer. Mr. Knopke included Mr. Pratt’s outside distributions in the penalty calculation. The “Scopes Manual” is published by the National Council on Compensation Insurance, Inc. (NCCI), the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. The manual contains certain codes related to the construction industry and trades considered to be within that industry. The installation of drywall, wallboard, sheetrock, plasterboard or cement board is considered to be “construction” under the relevant codes in the manual. The manual, with its codes and classifications, is relied upon in the insurance industry and has been adopted by the Department in Florida Administrative Code Rule 69L-6.021. Mr. Knopke, using the manual, determined the appropriate classification code for Respondent’s employees was 5445. Mr. Knopke applied the correct rates and used the methodology found in section 440.107(7)(d)1., and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to calculate the penalty assessment. Based upon the testimony and exhibits, the 3rd Amended Penalty Assessment in the amount of $20,221.62 is accurate and correct.
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, issue a final order upholding the 3rd Amended Order of Penalty Assessment, and assess a penalty in the amount of $20,221.62. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 June, 2015.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating or retaliating against Petitioner based on an alleged disability.
Findings Of Fact Petitioner was hired by Respondent as a Maintenance Technician III in March 2007. He held that position until his employment ended in January 2009. Petitioner was responsible for performing maintenance duties at two of Respondent's properties. The Majestic Sun is a 96-room, 10-story high-rise. Beech Street has 48 units in 24 two-story buildings. Both properties are located in Destin, Florida. A Maintenance Technician III is required to perform a wide range of maintenance duties. The position involves the following: (a) moving and lifting furniture, refrigerators, stoves, televisions, and washers and dryers; (b) stooping and kneeling to repair toilets, sinks, water heaters and air conditioners; (c) climbing on ladders to change light bulbs, repairing ceiling fans and performing other work; and (d) climbing stairs. The written Job Description Summary for the Maintenance Technician III position describes the physical requirements as follows: “Lift and carry up to 50 pounds; stand, sit and walk for prolonged periods of time; climb up and down several flights of stairs; frequent reaching, stooping, bending and kneeling; manual dexterity and mobility; extensive prolonged standing and walking.” Petitioner injured his knee in a job-related incident on September 6, 2008. He was treated at the Destin Emergency Care Center and placed on restrictions requiring “no work for now.” He was unable to work for approximately a week and a half. On September 17, 2008, Petitioner was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing medical restrictions of no lifting, pushing or pulling greater than 10 pounds, and no ladders or stairs for four weeks. With those restrictions, Petitioner returned to work on light duty on September 18, 2008. While on light duty, Petitioner was given only those functions of his job that did not require him to exceed his medical restrictions. Other employees had to perform all of Petitioner’s other functions. Petitioner's work restrictions were extended for another four weeks by a Workers’ Compensation Uniform Medical Treatment Status Reporting Form dated October 15, 2008. The October 15 form imposed the same medical restrictions as the September 17 form. Petitioner aggravated his knee injury approximately a week later. On October 22, 2008, he was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing the following work restrictions: (a) desk duty only; no lifting, pushing, or pulling at all; and (c) no standing or walking for more than 15 minutes at a time. Petitioner returned to work for a day or two after being restricted to desk duty. Respondent, however, had no desk-duty position available for him, so Petitioner was placed on a leave of absence beginning October 24, 2008. Petitioner requested leave under the Family Medical Leave Act (FMLA). His request was denied on November 21, 2008, because he did not provide all of the required information. The obligation to provide that information is the employee’s. FMLA leave was denied not by Respondent but by Cigna, which is a third-party administrator for these benefits. Because FMLA leave had been denied, Petitioner’s employment was protected from termination for only 30 days from the date he went on leave, through November 24, 2008. Employees receiving workers’ compensation benefits are not protected from termination. If a worker is not on FMLA leave, Respondent's policy is that he or she may be terminated after 30 days of leave. Even though Respondent could have terminated Petitioner after November 24, 2008, it did not do so. Petitioner was medically restricted to desk duty throughout November and December 2008. He remained on a leave of absence during that time and began receiving workers’ compensation benefits from the date his leave of absence commenced. On December 16, 2008, Petitioner’s supervisor, John Diaz, e-mailed the Assistant Resort Manager at the Majestic Sun to ask about Petitioner’s status. Mr. Diaz had hired a temporary employee to cover for Petitioner while he was on leave. The cost of the temporary employee was significantly more than the cost of a regular employee. Mr. Diaz was concerned about the impact of the temporary help on his budget. Mr. Diaz also was concerned about the lack of information that he had received regarding the date Petitioner would return to work. Mr. Diaz's inquiry was forwarded to Raina Ricks, a Human Resources Generalist in Respondent’s Human Resources (HR) Department. Ms. Ricks responded on December 16 and 18, 2008, reporting that Petitioner’s physician had recommended surgery. She expected to have information about his surgery schedule and recovery period within a few days. The next day, December 19, 2008, Ms. Ricks e-mailed Melanie Doubleday, an Analyst in Respondent’s HR Department, to ask about Respondent’s policy on the length of time an employee can remain on active status and not be terminated while unable to work due to a job-related injury. Ms. Doubleday is located in Respondent’s office in Orlando, Florida. Ms. Ricks asked Ms. Doubleday at what point Petitioner would possibly be terminated if he could not return to work soon. Ms. Doubleday responded on December 22, 2008, providing Respondent’s approved guidelines for processing workers’ compensation injuries. She explained that if the employee is eligible for FMLA, they would remain on workers’ compensation for the duration of their FMLA leave and not be terminated during that leave. If not eligible for FMLA, the employee would receive 30 days of leave. Ms. Ricks updated Mr. Diaz and Chrysse Langley, the Resort Manager, by e-mail the following day, December 23, 2008. Ms. Ricks explained that, since Petitioner’s FMLA leave had been denied, he was subject to termination 30 days following the commencement of his leave on October 24, 2008. Ms. Ricks had also been told by Petitioner’s workers’ compensation caseworker that they still did not have an exact date for Petitioner’s surgery, but that once the procedure was complete, he should be able to perform his normal job duties without restrictions within two to four weeks, or six weeks at the most. Ms. Ricks asked Mr. Diaz and Ms. Langley for their thoughts on terminating Petitioner. Mr. Diaz responded later that day, stating that he was “not trying to have [Petitioner] terminated.” Mr. Diaz's concern was that he had not received any information about when Petitioner would be required to return to work, and Petitioner himself did not seem particularly motivated to return. If Petitioner could return to work without restrictions within eight weeks, Mr. Diaz was prepared to “live with that.” Ms. Langley also responded later that day and confirmed that she and Mr. Diaz both wanted to keep Petitioner, if feasible. She also said that Respondent should proceed with hiring the temporary employee who had been covering for Petitioner during his absence, because Mr. Diaz was planning to terminate one of the other Maintenance Technician III’s for poor job performance. Subsequently, the temporary employee was hired to replace the other Maintenance Technician III. Two weeks later, on January 5, 2009, Ms. Doubleday e-mailed Ms. Ricks regarding Petitioner’s “exhausted leave of absence.” She said Petitioner was entitled to 30 days of leave and must then either return to active status or be terminated. For consistent application of Respondent’s policies, she instructed Ms. Ricks to send Petitioner a Return to Work/Administrative Termination Letter. Ms. Ricks’ employment with Respondent ended a few days later as part of a corporate restructuring. She did not send the “Return to Work” letter before she left. Denise Sniadecki, one of Respondent's HR Managers, assumed Ms. Ricks’ responsibilities. She did not know about Ms. Doubleday’s earlier e-mail or the denial of Petitioner's FMLA leave. Respondent’s HR system, Oracle, showed Petitioner's employment status as “Leave - Workers Comp - FMLA,” indicating that he was on FMLA leave, despite the denial of his FMLA application two months earlier. Ms. Sniadecki thus assumed Petitioner was nearing the end of his FMLA leave, which would have expired on January 24, 2009, 12 weeks after his medical leave began on October 24, 2008. Ms. Sniadecki e-mailed Ms. Doubleday on January 20, 2009, asking what letter she should send to Petitioner in light of the fact that his leave would soon be ending. After a further exchange of e-mails, Ms. Sniadecki e-mailed Ms. Doubleday on January 21, 2009, and explained that Petitioner was listed in Oracle as being on FMLA leave, that he had not been terminated after 30 days, and that she was just getting involved because of Ms. Ricks’ departure. She asked whether she should process Petitioner’s employment as having been terminated 30 days after his leave commenced on October 24, 2008. Ms. Doubleday responded later that day. She said that Petitioner’s status should be changed in Oracle to "WC/Non FMLA" and suggested he be terminated that day. Coincidently, Petitioner came to the workplace that same day, January 21, 2009, to drop off his latest Workers’ Compensation Uniform Medical Treatment Status Reporting Form. Petitioner's knee surgery had taken place a week to 10 days earlier. The form he brought in on January 21, 2009, imposed job restrictions of no lifting, pushing or pulling greater than 10 pounds, no ladders, and limited kneeling or squatting for four weeks. Mr. Diaz informed Ms. Sniadecki of Petitioner’s new work restrictions by e-mail that day. Mr. Diaz was not comfortable having Petitioner return to work on light duty because the medical restrictions severely limited his ability to do what the job required and he might further injure his knee. Mr. Diaz assumed Respondent still planned to administratively release Petitioner later that week. Mr. Diaz copied Ms. Langley on the e-mail. Ms. Langley responded a short time later, stating that there was no position that would fit Petitioner’s latest job restrictions. Ms. Sniadecki responded shortly afterward and told Mr. Diaz that Petitioner “will not be returning as we do not have light duty available for him.” Petitioner was terminated effective January 24, 2009. Ms. Doubleday and Ms. Sniadecki made the decision to terminate Petitioner based solely on the application of company policy. Mr. Diaz was not involved in the decision to terminate. Ms. Sniadecki sent Petitioner a letter dated January 26, 2009, stating he had been administratively terminated for failure to return from leave because he could not perform the essential functions of the Maintenance Technician III position with his medical restrictions. The reference to failure to return from leave referred to Petitioner’s inability to return to work without medical restrictions. Petitioner was invited to reapply for employment upon receiving a release to return to work. All of this was consistent with Company policy. Petitioner continued to be subject to medical restrictions for six months after his employment with Respondent ended. According to Workers’ Compensation Uniform Medical Treatment Status Reporting Forms given to Petitioner in March and April 2009, he was subject to restrictions against lifting, pushing, or pulling greater than 20 pounds until the end of July 2009. The form given to him on July 29, 2009, stated he had reached maximum medical improvement and imposed a permanent restriction against pushing, pulling or pulling greater than 50 pounds. He was given a two percent permanent impairment rating of the body as a whole. Petitioner never reapplied to Respondent for employment. He continued to receive workers’ compensation benefits until he reached maximum medical improvement. At the time of the hearing, Petitioner had found other employment. Petitioner presented no credible evidence showing that he has a disability for purposes of the Americans with Disabilities Act (“ADA”) or the Florida Civil Rights Act (“FCRA”). To the contrary, he testified that, as of January 21, 2009, the date he attempted to return to work, he believed he could do everything the job required, with the possible exception of squatting down. Petitioner failed to present persuasive evidence that he has any impairment that substantially limits one or more major life activities. Petitioner likewise failed to demonstrate that he was a qualified individual for purposes of the ADA or FCRA. At the time he was terminated, Petitioner was subject to medical restrictions prohibiting him from lifting, pushing or pulling greater than 10 pounds, using ladders, and kneeling or squatting for more than a limited period of time. These are essential functions of the Maintenance Technician III position. The greater weight of the evidence demonstrates that Petitioner was unable to perform the essential functions of the job at the time he was terminated, either with or without a reasonable accommodation. Petitioner presented no evidence that he engaged in any protected activity that would support a retaliation claim. When asked why he thought Respondent had retaliated against him, Petitioner responded that it was “because of his injury” and “because [Mr. Diaz] was upset because he didn’t have the staff to do the job.” Even if this testimony is accepted as true, it does not constitute protected activity and will not support a claim for retaliation. In addition, Petitioner failed to demonstrate a causal connection between his termination and any protected activity. The greater weight of the evidence demonstrated that Petitioner was terminated because he could not perform the essential functions of the Maintenance Technician III position, not because he engaged in any sort of protected activity. Petitioner failed to prove any facts to support a retaliation claim. Petitioner attempted to demonstrate that other injured employees received more favorable treatment than he did. None of the alleged comparators identified by Petitioner was similarly situated to him. One of them had a knee injury, but her position required that she work at a desk, so the injury did not interfere with her ability to perform the essential functions of her job. The other alleged comparators were maintenance technicians, but none of them had an injury like Petitioner's that required a lengthy leave of absence. None of them was subject to medical restrictions limiting them to desk duty for even a short period of time. Even if the other employees were similarly situated to Petitioner, such a showing would not support a claim of discrimination or retaliation. Petitioner would need to present evidence demonstrating that non-disabled employees were treated more favorably than he was, and he did not do that. In short, Petitioner failed to identify any comparators that would support his claim for discrimination or retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of August, 2010, 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 18th day of August, 2010. COPIES FURNISHED: Derek Griffin 1136 Sweetbriar Station Fort Walton Beach, Florida 32547 Jae W. Im, Esquire Wyndham Vacation Ownership 8427 South Park Circle, Suite 500 Orlando, Florida 32819 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions THIS CAUSE came on for consideration of and final agency action on the Written Report and Recommended Order entered on November 17, 2010, attached hereto as Exhibit A. Pursuant to Section 120.57(2), Florida Statutes an informal hearing was conducted on September 14, 2010, heard before Hearing Officer Alan J. Leifer via telephone conference call. After review of the record, including testimony and admitted exhibits, and being otherwise fully apprised in all material premises: {T 1S HEREBY ORDERED that the Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact, and the Conclusions of Law reached by the Hearing Officer are adopted as the Department’s Conclusions of Law. IT IS HEREBY FURTHER ORDERED that the Fourth Amended Order of Penalty Assessment (Penalty Only) is affirmed and that Cronin Porch & Patio, Inc. shall pay to the Department the assessed penaity of $10,084.00, within 30 days from the date hereof or enter into a Payment Agreement schedule. IT IS HEREBY FURTHER ORDERED that as long as Cronin Porch & Patio, Inc. is not in default of its payments, it may continue all business operations provided it demonstrates to the satisfaction of the Division of Workers’ Compensation of having now complied with the workers’ compensation law by securing the necessary workers’ compensation insurance coverage for covered employees. Ca DONE and ORDERED this day of Dg ¢ ew ben, 2010. bain Dion Ben Diamond, General Counsel Office of Chief of Staff
The Issue The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.
Findings Of Fact Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact: Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated: Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super imposed trauma, that would be a good way to go. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. DANIEL MANRY 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 5th day of October, 1989. APPENDIX Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection NONE The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in Findings 1, 2 2-3 Rejected as irrelevant 4-9 Included in Findings 3-10 Included in Finding 35 Included in Finding 11 Included in Finding 25 Included in Finding 26 Included in Finding 31 15-17 Included in Findings 27-30 Included in Finding 17 Included in Finding 36 Included in Finding 32 21-28 Included in Findings 12-21 29 Included in Finding 22 30-31 Included in Findings 33-34 Included in Finding 22 Included in Findings 15, 17 34-35 Included in Findings 23, 24 COPIES FURNISHED: George Cabany 3905 Garfield Street Hollywood, Florida 33021 James S. Bramnick Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent Suite 3600 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2338 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issues to be determined are whether Respondent failed to provide workers’ compensation insurance as required by section 440.107, Florida Statutes (2019), and if so, what penalty should be imposed.
Findings Of Fact The Division is the state agency charged with enforcing the requirement in section 440.107(3), that employers in Florida secure workers’ compensation coverage for their employees. Respondent is a company engaged in the construction industry. James Colligan is its sole employee. Respondent’s office is 637 Four Point Road, Holt, Florida, 32564. On or about October 1, 2019, Sabrina Johnson, a compliance investigator for the Division, observed someone installing vinyl fencing on an existing home located at 101 Pine Court, in Niceville, Florida. She approached and spoke to the lone worker, who identified himself as James Colligan. Ms. Johnson identified herself as a compliance investigator for the Division and asked for proof of workers’ compensation insurance. Mr. Colligan advised her that he had an exemption. Ms. Johnson consulted the Department of State, Division of Corporation’s website to determine the identity of Respondent’s officers, and found that Mr. Colligan was the sole officer. She then consulted Petitioner’s Coverage and Compliance Automated System (CCAS) for proof of workers’ compensation coverage, and for any exemptions associated with Respondent. Ms. Johnson’s research revealed that Respondent did not have a workers’ compensation policy or an employee leasing policy, and did not have a current exemption. Mr. Colligan previously held an exemption, but it expired on July 20, 2018. He had applied for a renewal of the exemption on July 2, 2018, but his application was rejected as incomplete because the FEIN number on the renewal application did not match the one on file. Mr. Colligan was notified by email on July 3, 2018, that his application was being returned to him as incomplete. He acknowledged at hearing that he had provided his email address to the Division, but stated he gets so many emails, he does not always read them. He did not recall ever seeing the email from the Division, and believed that his exemption had been renewed. Mr. Colligan’s testimony was sincere and credible. However, it is his responsibility to make sure that his exemption is up to date, and he did not do so. Upon learning from Ms. Johnson that his exemption had expired, Mr. Colligan immediately applied for and received an exemption. However, the newly acquired exemption is prospective, and does not cover the period of noncompliance. Investigator Johnson consulted with her supervisor, who provided authorization for the issuance of a Stop-Work Order. She issued a Stop-Work Order and personally served it on Mr. Colligan on October 1, 2019. At the same time, she issued and served a Request for Production of Business Records for Penalty Assessment Calculation. Mr. Colligan executed an Agreed Order of Conditional Release from Stop-Work Order, paid the minimum $1,000 fine and, as noted above, submitted a new application for an exemption. The records requested fall into five categories: 1) payroll documents, such as time sheets, time cards, attendance records, earning records, check stubs, and payroll summaries, as well as federal income tax documents and other documents that would provide the amount of remuneration paid or payable to each employee; 2) account documents, including all business check journals and statements, cleared checks for all open and/or closed business accounts, records of check and cash disbursements, cashier’s checks, bank checks, and money orders; 3) disbursement records, meaning all records of each business disbursement including, but not limited to, check and cash disbursements, indicating chronologically the disbursement date, to whom the money was paid, the amount, and the purpose for which the disbursement was made; 4) subcontractor records, identifying the identity of each subcontractor of the employer, the contractual relationship held, and any payments to those subcontractors; and 5) documentation of subcontractor’s workers’ compensation coverage. Respondent worked as a subcontractor, but there was no evidence presented that he hired subcontractors, so records falling into the categories related to subcontractors likely do not exist. Respondent provided copies of bank statements, but these records did not contain earning records, income tax filings, check images, or other sufficient records from which the Division could determine payroll. Lynne Murcia reviewed Respondent’s records in her capacity as a penalty auditor for the Division. She testified credibly that income can be identified through direct wage payments to an employee, bonuses given, income distributions, loans that are not repaid, and the like. The bank statements provided by Respondent were simply insufficient for her to determine which items were reflective of payroll. Therefore, in accordance with section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028, she determined payroll in this case by imputing payroll for the work classification assigned to the identified work being performed. On October 29, 2019, the Division issued an Amended Order of Penalty Assessment, which was served on Respondent on October 30, 2019. The penalty assessed for noncompliance with chapter 440 workers’ compensation requirements was $15,260.56. The penalty calculation is based upon the classification codes listed in the Scopes® Manual, which have been adopted through the rulemaking process through rules 68L-6.021 and 69L-6.031. Classification codes are codes assigned to different occupations by the National Council on Compensation Insurance, Inc. (NCCI), to assist in the calculation of workers’ compensation insurance premiums. Ms. Murcia used classification code 6400 for Mr. Colligan. The description for code 6400 is for “specialist contractors engaged in the erection of all types of metal fences, i.e., chain link, woven wire, wrought iron or barbed wire fences.” There is no dispute that Code 6400 was the appropriate classification code for the type of work Respondent performed. Using this classification code, Ms. Murcia used the corresponding approved manual rates for that classification and the period of noncompliance. Ms. Murcia multiplied the average weekly wage by 1.5, in accordance with section 440.107(7)(e). The period of noncompliance in this case ran from the expiration of Mr. Colligan’s exemption (July 21, 2018), to the day that he applied for and received a new exemption (October 1, 2019). The average weekly wage is established by the Department of Economic Opportunity. Because the period of noncompliance involved two different pay rates, Ms. Murcia provided a separate calculation for each calendar year. The imputed gross payroll for July 21, 2018 through December 31, 2018, was $33,013.55, which she divided by 100 and then multiplied by the manual approved rate ($9.73), times two, to reach the amount of penalty to be imposed for that calendar year. A similar calculation was performed for the period from January 1, 2019 through October 1, 2019, using the manual approved rate of $8.01. All of the penalty calculations are in accordance with the Division’s penalty calculation worksheet. The Division proved by clear and convincing evidence that Respondent was engaged in the construction business for the period beginning July 21, 2018, and ending October 1, 2019, without prior workers’ compensation coverage or a valid exemption. The Division also demonstrated by clear and convincing evidence that the documents submitted by Respondent, which may be all of the documentation that Respondent possessed, were not sufficient to establish Respondent’s payroll, thus requiring the imputation of payroll. Finally, the Division proved by clear and convincing evidence that the required penalty for the period of noncompliance is $15,260.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Respondent failed to comply with the requirements of section 440.107 and impose the penalty identified in the Amended Order of Penalty Assessment, with credit for the $1,000 already paid. DONE AND ENTERED this 19th day of February, 2020, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of February, 2020. COPIES FURNISHED: James Colligan 637 Four Point Road Holt, Florida 32564 Rean Knopke, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kami Alexis Sidener, Law Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Leon Melnicoff, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Petitioner, Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”) properly issued a Stop-Work Order and Penalty Assessment against Respondent, Barber Custom Builders, Inc. (“Respondent” or “Barber”) for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact On January 31, 2014, the parties filed a Joint Pre- hearing Stipulation, by which the parties stipulated to the facts set forth in the following paragraphs 2 through 12. Those facts are accepted and adopted by the undersigned. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees and corporate officers. Respondent, a Florida corporation, was engaged in business operations in the construction industry in the State of Florida from June 6, 2010 through June 5, 2013. Respondent received a Stop-Work Order and Order of Penalty Assessment from the Department on June 5, 2013. The Department had a legal basis to issue and serve Stop-Work Order 13-273-1A on Respondent. Respondent contests the validity of the Department’s Stop-Work Order as a charging document. Respondent received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on June 5, 2013. Respondent received an Amended Order of Penalty Assessment from the Department on June 17, 2013. Respondent executed a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from Stop-Work Order on August 6, 2013. Respondent received a 2nd Amended Order of Penalty Assessment from the Department on September 25, 2013. Respondent employed more than four non-exempt employees during the periods of June 10, 2010 through June 30, 2010; July 2, 2010 through December 31, 2010; January 14, 2011 through December 29, 2011; January 30, 2012 through December 16, 2012; and January 4, 201[3] through June 5, 2013. Respondent was an “employer” as defined in chapter 440. All of the individuals listed on the Penalty Worksheet of the [2nd Amended Order of Penalty Assessment], except Buffie Barber and Linda Barber, were “employees” in the State of Florida (as that term is defined in section 440.02(15)(a), Florida Statutes), of Respondent during the periods of non- compliance listed on the penalty worksheets. In addition to the foregoing, in their March 12, 2014, Joint Stipulations and Status Report, the parties stipulated to the facts set forth in the following paragraphs 14 and 15. Those facts are accepted and adopted by the undersigned. Based on business records received from Respondent, the Department has recalculated the assessed penalty. The penalty has been reduced from $36,387.03 to $2,272.31. The 3rd Amended Order of Penalty Assessment is calculated correctly, if the manual rates were properly adopted by rule. A review of the stipulated 3rd Amended Order of Penalty Assessment reveals assessed penalties for employees engaged in work described as class code 5403 (carpentry - NOC) and class code 8810 (clerical office employees - NOC). Given the stipulations of the parties, further findings are unnecessary.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order assessing a penalty of $2,272.31 against Respondent, Barber Custom Builders, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 30th day of April, 2014.
