Is Your Worker an Employee or an Independent Contractor?

Owners often ask: is my worker an employee or independent contractor Florida? The answer decides which wage, tax and insurance rules apply to your business.

This page explains the tests in plain terms, the warning signs owners miss, and what a written review covers. KEW Legal is a Florida business law firm with offices in Coral Gables and Sunny Isles Beach. It acts as outside general counsel for business owners and investors across Miami-Dade and South Florida.

What a Misclassification Review Is and Who Needs One

A misclassification review is a written look at how a worker is hired, paid and directed. The review compares those facts against the employee and independent contractor tests. The core question is simple: does the way the work runs match the label you gave it?

This review fits three kinds of owners:

• Owners who pay people on Form 1099 and want to confirm that setup still holds up.
• Owners with a worker who has asked for W-2 status or raised a pay complaint.
• Owners preparing for a sale, a buy-in or investor due diligence, where a worker question may come up.

A review is not a lawsuit, and it does not replace a response to an agency audit. It identifies risk and options. It does not promise how a court or agency will rule. KEW Legal offers this work as part of its employment law services for employers.

How Florida Law Decides Who Is an Employee

Florida’s reemployment assistance law applies the usual common-law rules to decide who is an employee. Those rules look at who controls the work, not only the result. Fla. Stat. § 443.1216 covers service by an individual who is an employee under those rules.

Workers’ compensation is a good example. See Fla. Stat. § 440.10.

Florida’s minimum wage amendment uses the federal Fair Labor Standards Act definitions of employer, employee and wage. It also says federal case law guides how the amendment is read. See Fla. Const. art. X, § 24. Federal wage cases also weigh the economic relationship between the worker and the business.

Warning Signs That Point Toward Employee Status

The strongest warning signs involve control.

Watch for these signs:

• Set hours or schedules: You assign shifts, require sign-in, or expect availability on set days.
• Instructions on method: You train the worker, require your procedures, or approve how each task is done.
• Your tools and pay structure: You supply vehicles, equipment or space, and you pay by the hour or week.
• Ongoing core work: The worker performs work central to your business, indefinitely, and mostly for you alone.

Some facts help your position. The worker runs a separate business, carries their own insurance, serves other clients, sets their own prices, and can make or lose money on a job.

Florida law also limits the “casual labor” idea. Under Fla. Stat. § 443.036, casual labor is occasional, incidental or irregular work of no more than 200 person-hours. Work performed in the course of the employer’s trade or business does not qualify. A worker who does your core job every week does not fit that exception.

What the Review Covers

A review looks at the records that show how the relationship works in practice. It covers four groups of documents:

• Written agreements, statements of work, independent contractor clauses, amendments, and any handbook language that applies to the worker.
• Invoices, payment records, payroll, and Form 1099 or W-2 filings for each worker across the relevant period.
• Schedules, texts, emails, and sign-in or site records that show how work is assigned and supervised.
• Tools, equipment, work location, exclusivity terms, and any non-compete or confidentiality terms.

The written summary then addresses the main exposure areas:

• Unpaid minimum wage. A worker who wins recovers unpaid back wages plus the same amount as liquidated damages, and reasonable attorney’s fees and costs, unless the employer proves good faith and reasonable grounds, in which case the court may, in its sound discretion, award no liquidated damages or an amount not exceeding the unpaid minimum wages. See Fla. Stat. § 448.110. Before suing for unpaid minimum wages, the worker must give the employer written notice of the intent to sue that identifies the minimum wage the worker claims, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice. The employer then has 15 calendar days after receiving it to pay the unpaid wages or otherwise resolve the claim. See Fla. Stat. § 448.110. See Fla. Stat. § 448.110.
• Attorney’s fees in wage cases. The court may award costs and a reasonable attorney’s fee to the prevailing party. See Fla. Stat. § 448.08.
• Workers’ compensation penalties, as described above.
• Reemployment tax. See Fla. Stat. § 443.131. Shifting a tax bill to a worker through pay deductions is not allowed.

How the Review Works, Step by Step

The review moves in five steps, from a first conversation to written findings. The timing depends on how many workers and records are involved.

1. Free first consultation. We talk through which workers and arrangements are in question. The first consultation is free, confidential, and carries no obligation to continue.
2. Document collection. You receive a checklist of what to gather and how to send it.
3. Analysis. Each worker’s role is compared against the control and economic-reality factors. The arrangement is reviewed as it actually runs, not only as written.
4. Written findings. You receive a plain-language summary for each worker. It covers the risk areas and options, such as updating agreements, changing how work is assigned, or responding to a specific claim or audit.
5. Ongoing guidance. Future hires and contracts are reviewed before you sign them.

Common Questions Owners Ask

Why Business Owners Work With KEW Legal

KEW Legal focuses on business law for owners and investors. It ties workforce questions to the rest of the company.

• Outside general counsel. The firm works with owners and investors in Miami-Dade and South Florida, with offices in Coral Gables and Sunny Isles Beach.
• Connected practice areas. Employment questions sit beside contracts, commercial leases, partnership disputes and succession planning. A worker issue gets reviewed in the context of the whole business.
• Responsible lawyer. Kristina E. Wilson is the responsible lawyer for this page. Natalie Martinez is also one of the firm’s lawyers who handles employment matters for employers.

If you pay a bookkeeper, driver or project crew on 1099s and wonder whether that setup still holds up, call 305-990-2300 or send us a message to talk it through.