FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2801

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FLORIDA WORKERS’

COMPENSATION JOINT 

UNDERWRITING ASSOCIATION,

INC.,

Appellant,

v.

AMERICAN RESIDUALS AND

TALENT, INC., d/b/a Art Payroll,

Appellee.

___________________________

On appeal from an Order of the Office of Insurance Regulation.

David Altmaier, Commissioner.

April 30, 2018

WINOKUR, J.

Appellant, Florida Workers’ Compensation Joint 

Underwriting Association, Inc. (FWCJUA), appeals a Final Order 

of the Office of Insurance Regulation (OIR) reversing FWCJUA’s 

denial of workers’ compensation coverage to Appellee, American 

Residuals and Talent, Inc. (ART). We affirm, but write to address 

FWCJUA’s claim that ART is not an employer under Florida law.

I.

FWCJUA is a self-funding, residual-market insurer created

by the Legislature in order to provide workers’ compensation 
2

insurance to employers who are statutorily required to maintain

such insurance, but who are unable to obtain coverage from 

private insurers in the voluntary market. § 627.311(5)(a), Fla. 

Stat. FWCJUA operates under the supervision of a nine-member

Board of Governors appointed by the Financial Services 

Commission. § 627.311(5)(b), Fla. Stat. Additionally, FWCJUA

operates in accordance with a plan of operation adopted by the 

Board of Governors and approved by OIR. § 627.311(5)(c), Fla. 

Stat. 

ART is a New Hampshire corporation authorized to do 

business in Florida. ART specializes in talent payroll services for 

the motion picture, television, and radio commercial production 

industry. ART provides payroll and employer of record services to 

clients in the advertisement and entertainment business for 

short-term productions, such as paying wages to the talent, 

obtaining and covering the talent for state unemployment 

compensation and workers’ compensation coverage for each 

production based on the location where the production is being 

filmed or produced, and withholding, paying, and remitting taxes 

due from the talent’s compensation, as well as filing state and 

federal tax returns for the talent and providing W-2s to the 

talent.

ART first obtained workers’ compensation coverage from 

FWCJUA in 2002. After initially representing in its application 

for coverage that it did not hire any of the employees for which it 

sought coverage, ART subsequently changed its representation in 

an August 2002 letter, stating that it entered into employment 

contracts with workers and was a temporary employment service. 

ART maintained coverage through FWCJUA until 2004. From 

2005 through 2012, ART obtained workers’ compensation 

coverage through the private market. In 2012, ART was unable to 

maintain coverage in the private market and reapplied for 

workers’ compensation coverage through FWCJUA. In its 

application, ART described itself as a temporary employment 

service. FWCJUA issued ART a coverage policy effective 

September 2012.

In late 2014, FWCJUA received an application for workers’ 

compensation insurance from Stars of David Tours, LLC (Stars of 

David). Stars of David is headquartered in New York and 
3

intended to bring its actors and staff into Florida for a travelling 

theatrical performance. Stars of David was unable to obtain 

coverage through FWCJUA, so it contracted with ART to provide 

workers’ compensation insurance coverage until it could get its 

own through FWCJUA. FWCJUA requested a copy of the Talent 

Payroll Support Agreement that Stars of David had with ART

and determined that ART was an unlicensed employee leasing 

company. FWCJUA then terminated ART’s workers’ 

compensation coverage and filed a complaint with the Florida 

Division of Business and Professional Regulation (DBPR).

DBPR found insufficient evidence to establish probable cause 

that ART operated as an unlicensed employee leasing company 

and dismissed FWCJUA’s complaint. After DBPR closed its 

investigation, ART reapplied to FWCJUA for coverage. FWCJUA, 

however, again refused to issue ART workers’ compensation 

coverage and initiated another complaint to DBPR claiming that 

ART was an unlicensed employee leasing company. DBPR once 

again found insufficient evidence to establish probable cause that 

ART operated as an unlicensed employee leasing company. 

In January 2016, FWCJUA again denied coverage to ART, 

concluding that ART did not have any direct employees and, as a 

result, was not an employer under Florida law. Thus, ART was 

not eligible for coverage through FWCJUA. ART appealed 

FWCJUA’s eligibility determination to OIR. Representatives for 

FWCJUA and ART testified during the OIR hearing. 

In February 2017, OIR issued its Written Report and 

Recommendation reversing FWCJUA’s denial of workers’ 

compensation coverage to ART. OIR found that ART, while not 

an employee leasing company, is an employer under Florida law, 

because it is a “similar agent” under section 440.02(16)(a), 

Florida Statutes. Additionally, OIR concluded that “the obligation 

of the Production companies for the provision of workers’ 

compensation coverage is contractually transferred to ART by 

virtue of the Talent Payroll Support Agreement which specifically 

creates a co-employment relationship with the Talent selected by 

the production companies.”

On June 13, 2017, OIR filed its Final Order adopting its 

Written Report and Recommendation. FWCJUA appeals.
4

II.

An agency’s final order may only be set aside “upon a finding 

that it is not supported by substantial, competent evidence in the 

record or that there are material errors in procedure, incorrect 

interpretations of law, or an abuse of discretion.” Bollone v. Dep’t 

of Mgmt. Servs., Div of Ret., 100 So. 3d 1276, 1279 (Fla. 1st DCA 

2012) (quoting Hames v. City of Miami Firefighters’ & Police 

Officers’ Tr., 980 So. 2d 1112, 1114 (Fla. 3d DCA 2008)).

Chapter 440, Florida Statutes, governs workers’ 

compensation insurance and defines “employer,” in pertinent 

part, as “every person carrying on any employment . . . [and] 

includes employment agencies, employee leasing companies, and 

similar agents who provide employees to other persons.” 

§ 440.02(16)(a), Fla. Stat. “Employment,” in turn, is defined as 

“any service performed by an employee for the person employing 

him or her.” § 440.02(17)(a), Fla. Stat. Additionally, “employee” is 

defined as “any person who receives remuneration from an 

employer for the performance of any work or service while 

engaged in any employment under any appointment or contract 

for hire.” § 440.02(15)(a), Fla. Stat. 

An “employee leasing company” is defined as “a sole 

proprietorship, partnership, corporation, or other form of 

business entity engaged in employee leasing.” § 468.520(5) Fla.

Stat. Moreover, “employee leasing” is defined as “an arrangement 

whereby a leasing company assigns its employees to a client and 

allocates the direction of and control over the leased employees 

between the leasing company and the client.” § 468.520(4), Fla.

Stat. Furthermore, Chapter 468, Florida Statutes, requires that 

employee leasing companies be licensed. 

ART conceded that it is not an employee leasing company. 

Therefore, the question is whether competent substantial 

evidence supports OIR’s conclusion that ART is an employer

under Florida law as a “similar agent.”

III.

FWCJUA claims that there is no competent substantial 

evidence to support OIR’s finding that ART is a “similar agent”
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and relies on this Court’s decision in Bolanos v. Workforce 

Alliance, 23 So. 3d 171 (Fla. 1st DCA 2009). Bolanos concerned a 

petitioner appealing the dismissal of his petition for workers’ 

compensation benefits after the Judge of Compensation Claims 

found that the organization that helped petitioner find 

employment, Workforce Alliance, was not his employer. Id. at 

171-72. The petitioner had gone to Workforce Alliance to find 

employment as a tree trimmer. Id. at 172. Workforce Alliance 

informed the petitioner that an individual had an employment 

opportunity for him. Id. The petitioner then met with this 

individual and agreed to a tree-trimming job. Id. The individual,

and not Workforce Alliance, paid the petitioner. Id. The 

petitioner then suffered an injury on the job and claimed that 

Workforce Alliance was his employer pursuant to language of 

section 440.02(16)(a), Florida Statutes, specifically that 

Workforce Alliance was a “similar agent” to an employment 

agency or employment leasing company. Bolanos, 23 So. 3d at 

172.

We rejected petitioner’s argument and held that the “key 

features” of a “similar agent . . . include a financial arrangement 

between the agency and either the end employer/client or the 

employee, as seen in employment agencies, or the use of the 

entity’s own employees by the end/employer/client, as seen in 

employee leasing companies.” Id. at 173. Because Workforce 

Alliance failed to satisfy either requirement, it was not 

petitioner’s employer. Id. 

ART is different from Workplace Alliance in both form and 

substance. While not in charge of interviewing, hiring, or firing 

the talent of its clients, ART pays the talent for its services. 

Moreover, ART ensures that its clients abide by local and federal 

employment practices as well as comply with applicable union 

guidelines. Additionally, ART tracks any residual payments or 

royalties that are due to its clients. In contrast, Workforce 

Alliance was essentially an employment referral service with no 

contractual connection to the employers that used its services. 

Indeed, Bolanos noted that Workforce Alliance was a federally 

funded non-profit organization that did not charge any fees to 

either employees looking for jobs or employers looking for 

manpower. Id. at 172.
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Most importantly, ART entered into service contracts with 

its clients. These Talent Payroll Support Agreements state that 

ART is the “employer of record” for the talent. The contracts also 

provide for ART’s compensation in the form of a percentage of the 

talent’s wages and a handling fee. This is the sort of financial 

arrangement we contemplated in Bolanos. As a result, ART can 

be properly defined as a “similar agent” under Florida law.

Evidence in the record suggests that ART is a “co-employer” 

of the talent. In the September 2016 hearing, FWCJUA’s senior 

underwriter testified that FWCJUA considered ART to be an 

“employer of record” or “co-employer” with its clients. FWCJUA

conceded that in a “co-employer” relationship, two companies can 

be seen as an employer.

Furthermore, FWCJUA’s senior underwriter testified that 

the reason for FWCJUA’s cancellation of ART’s coverage was that 

ART was not the “direct employer” of the talent. Thus, 

FWCJUA’s argument is not that ART is not an employer, but 

rather based on the distinction between “direct” and “indirect” 

employers. This distinction, however, is nowhere to be found in 

Florida law or, for that matter, FWCJUA’s Operations Manual. 

Based on the character of ART’s relationship to its clients, its 

contractual financial arrangements with said clients, and this 

Court’s own precedent, ART is a “similar agent” under 

section 440.02(16)(a).

IV.

FWCJUA warns that workers’ compensation law would be 

upended if companies such as ART are viewed as employers 

under Florida law, that such a ruling would vitiate the licensing 

requirement for employee leasing companies, and that run-of-themill payroll companies would be seen as employers. This should 

not occur. Employee leasing companies lease their own employees 

to other employers. DBPR investigated ART twice and found that 

ART did not operate as an unlicensed employee leasing company. 

Companies that lease their employees to its clients will still be 

required to obtain licensure pursuant to Florida law. In addition, 

this ruling does not exempt ART from any applicable licensure 

requirements if it changes its operating practices. 
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Similarly, this ruling will not open the door for payroll 

service companies to become employers under Florida law. As 

mentioned earlier, ART is a unique service provider due to the 

demands of entertainment companies who do short-term, out-ofstate production work. ART does more than just the ministerial 

function of issuing paychecks to its client’s employees. ART 

operates as the employer of record for the talent. ART assumes

an employer’s responsibility of paying talent and ensuring that 

they are provided with the insurance required under the law of 

the jurisdiction where they are employed, while its clients handle 

the creative aspect of interviewing and hiring the right talent for 

its productions. As conceded by FWCJUA, ART is effectively a 

“co-employer” of the talent.

V.

ART’s contractual relationship with its clients falls within 

the ambit of a “similar agent” pursuant to our precedent. As a 

result, OIR based its ruling on competent, substantial evidence. 

Therefore, we affirm OIR’s Final Order.

AFFIRMED.

RAY and BILBREY, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Thomas J. Maida, James A. McKee, Benjamin J. Grossman, and 

Nicholas R. Paquette of Foley & Lardner LLP, Tallahassee, for 

Appellant.

Fred F. Harris, Jr., David C. Ashburn, and M. Hope Keating of 

Greenberg Traurig, P.A., Tallahassee, for Appellee.