Court: District Court of Appeal of Florida; February 5, 1985; Florida; State Appellate Court
The Sarasota County Chamber of Commerce appeals a final agency order classifying its salespersons as "employees" under section 443.036(17), Florida Statutes (1983). The Division of Unemployment Compensation upheld findings from a special deputy regarding the nature of the Chamber's operations and the role of salespersons. The Chamber, the oldest corporation in Sarasota County, is designed to represent local businesses and requires a broad membership base. To achieve this, it contracts with around four individuals who are responsible for prospecting and soliciting memberships, as well as special projects.
Salespersons are recruited through newspaper advertisements and are selected based on their sales records. They enter into written contracts and receive an orientation about the Chamber's functions, including examples of sales presentations. There is no direct supervision or monitoring of their sales activities. The Chamber provides office space and telephones, but the salespersons operate independently, setting their own schedules and contacting businesses throughout Sarasota and parts of Manatee County, using their own transportation and incurring their own expenses. They present themselves as marketing representatives of the Chamber.
Salespersons are not required to attend weekly meetings, which focus on new projects and motivation. Membership rates are established by the Chamber, and salespersons submit membership applications and payments to the Director of Marketing at their discretion. They earn commissions based on secured memberships, which can be negotiated, and may also receive bonuses for consistent performance. No taxes are withheld from their commissions, and to qualify for renewal commissions, they must sell at least $5,000 annually. Salespersons who fail to meet sales requirements face probation and potential contract termination. Each salesperson signs a statement identifying themselves as an independent contractor.
The contract permits either party to cancel without cause or liability, typically resulting in termination when a salesperson is unresponsive. The Petitioner has previously terminated two salespersons: one due to abusive behavior towards prospects and another for poor sales performance and disruptive behavior in the office. The Chamber does not dispute these facts but argues they indicate the salespersons were independent contractors. The determining factor for this classification is the degree of control over how the work is performed. In this case, the salespersons operate with significant autonomy, setting their own schedules, choosing how to approach prospects, and not being monitored in their presentations. They provide their own transportation, dress as they wish, and may hire assistants at their own expense, earning commissions on memberships sold. Some salespersons also work for other organizations, indicating that their performance is judged solely by results. The Division's reliance on the Chamber's questionnaire response regarding supervision is challenged, as the definition of "supervisor" implies a level of oversight not present in this relationship. The representative clarified that their interpretation of supervision was limited to administrative functions, lacking the ongoing oversight typical of an employer-employee dynamic. This case aligns with precedents where individuals were deemed independent contractors rather than employees, reinforcing the lack of liability for unemployment compensation premiums.
In A Nu Transfer, Inc. v. Department of Labor, Employment Security, the court determined that owner-operators of trucks, who operated independently and under at-will contracts with an inland carrier, were classified as independent contractors. Similarly, in United States Telephone Co. v. State, commission salesmen working without supervision were also deemed independent contractors, despite the company providing office space and clerical support. In Cosmo Personnel Agency of Fort Lauderdale, employment counselors were found not to be employees of the agency, even with the provision of secretarial help and use of the agency's resources, as both parties could terminate the contract without cause. The Florida Gulf Coast Symphony case concluded that musicians hired for seasonal contracts were independent contractors due to their specialized skills, ownership of their instruments, and ability to engage in other work simultaneously. Lastly, in Jean M. Light Interviewing Services, interviewers hired per job and working without supervision were classified as independent contractors despite the employer's business focus on interviewing. In all these cases, the courts reversed previous findings of employer-employee relationships. Consequently, it was held that the salespersons in question were not employees of the Chamber under the Unemployment Compensation Law, leading to a reversal of the prior decision. Judges Scheb and Schoonover concurred with this ruling.
