Jenks v. Bynum Transp., Inc.
| Decision Date | 23 January 2013 |
| Docket Number | No. 1D12–0628.,1D12–0628. |
| Citation | 104 So.3d 1217 |
| Parties | Randy Lee JENKS, Appellant, v. BYNUM TRANSPORT, INC. and Zenith Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Jason S. Robbins, Merritt Island, and Bill McCabe, Longwood, for Appellant.
William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) that denies compensability of his motor vehicle accident and resulting injuries on the basis that Claimant was not an employee at the time of the motor vehicle accident. Because we conclude that Claimant was an “employee” as the term is defined in section 440.02(15)(a), Florida Statutes (2010), we reverse.
On May 21, 2011, Claimant, a licensed truck driver, was contacted by Walt Ringdahl, a recruiter for the Employer 1, regarding a truck driving position. Mr. Ringdahl obtained Claimant's general information such as his name, address, date of birth, social security number, and work history. Thereafter, Mr. Ringdahl requested Claimant to attend the Employer's two-day orientation at the Employer's facility.Claimant delayed the orientation date for two to three weeks to provide adequate notice of his resignation to his (then) current employer. Claimant's orientation was scheduled for June 22 and 23, 2011.
On June 21, 2011, Claimant and his family traveled from Claimant's home in Mims, Florida, to Auburndale, Florida, to attend orientation. The Employer provided lodging, lunch, and transportation during the two-day orientation. On June 22, 2011, Claimant underwent a physical examination, which he successfully completed, and a drug test, the results of which were expected by the end of orientation. After Claimant signed for his picture identification badge, Mr. Ringdahl transported the recruits to and from lunch.
The same day, Claimant completed the Employer's checklist, titled “Prospective Bynum Drivers,” which states, “This is not an offer of employment and should not be viewed as such”; Mr. Ringdahl instructed Claimant to date the checklist for the following day, June 23, 2011, the “official” date of hire. Claimant also signed a document titled “Orientation Pay” which stated that “all new drivers would receive $50 per day upon successful completion of orientation.”
On June 23, 2011, Claimant received his picture identification badge. Because recruits were expected to depart from the Employer's facility for the first trip immediately following the second day of orientation, Claimant's wife delivered his provisions for the trip to the Employer's facility. Claimant got into his automobile with his wife to follow Mr. Ringdahl to the restaurant for lunch. On the way to lunch, Claimant was involved in a motor vehicle accident.
Thereafter, Claimant underwent a truck driving test, which he successfully completed. At the end of the second day of orientation, Claimant received the keys to his assigned truck and set out on his first trip. Although Claimant completed one trip for the Employer, he did not thereafter perform work.
On July 8, 2011, Claimant received a “Bynum Transport, Inc. Settlement Detail Sheet” which indicated that Claimant was paid “Orientation Pay” in the amount of $100 for Claimant's participation and completion of orientation. Under “Additional Wages,” the document classified Claimant's orientation pay as “SAL.” The settlement sheet further listed Claimant's reimbursements for expenses, cash advances, deductions for supplies, and taxes withheld by the Employer.
On July 22, 2011, Claimant filed a petition for benefits (PFB) seeking compensability of the injuries sustained in the motor vehicle accident which occurred on the second day of orientation. The Employer/Carrier (E/C) denied the claim on the basis that Claimant was not an employee at the time of the accident. At the merits hearing, Claimant testified that it was his understanding that he was hired before he left for Auburndale because the Employer had completed the background investigation, knew who Claimant was, invited Claimant to travel to orientation, and covered his lodging expenses. Claimant also testified that he would not have left his previous employment of six years on a “maybe.” Claimant further testified that he requested his trip “essentials” from his wife before the accident because he knew he was going to leave for his first trip following orientation. Claimant argued the $50 per-day orientation pay constituted wages and is evidence that Claimant's employment began June 22, 2011.
At trial, the E/C maintained that a contract for employment had not been formed with Claimant and offered testimony from Gary Brinkley, safety director for the Employer. Brinkley described Claimant's online application as an “internet inquiry” and testified that it was not an offer of employment. Mr. Brinkley testified that background information is collected during the online process, and the Employer would not have invited Claimant to attend orientation or pay his lodging expenses if disqualifying information had been disclosed. Mr. Brinkley further testified that the Employer conducts weekly orientations and pays lodging and lunch expenses for prospective drivers because “most employees do not have money to pay for their facilities.” He stated that prospective drivers are paid $50 per day upon successful completion of the two-day orientation as a starter fund intended to give new drivers money to start out with on the road. He acknowledged that Claimant received the money with his first pay check and not on the last day of orientation, but stated Claimant could have requested the money earlier if he needed it.
Regarding the hiring process, Mr. Brinkley testified that prospective drivers cannot become employees until orientation is completed. He stated the Employer uses the orientation process to complete any unfinished background investigations. He testified that Claimant would not have been hired if he had not passed the background investigation, physical examination, drug test, and driving test. He further testified that prospective drivers receive an identification badge when they have been officially hired and that Claimant was officially hired at the time he received his identification badge between 4:30 p.m. and 5:00 p.m. on June 23, 2011—approximately four hours after the automobile accident.
Mr. Brinkley testified that he handles all of the Employer's workers' compensation claims, and that workers' compensation benefits had been provided to other prospective drivers who had been injured during orientation.
In the final order, the JCC found that Claimant was not an employee at the time of his accident, and therefore the accident was not compensable. The JCC explained:
The claimant was aware that he had to pass a drug test in order to be hired. He was told by Walt [Ringdahl] that he should not date the check list for the first day as he would not be hired until the second day. The claimant testified that he knew he could leave at any time and that several of the recruits did leave during or after the first day. He testified that he considered himself to be hired because he knew he could pass the drug test, physical examination and driver test. However, the employer did not know that claimant could pass these tests and did advise the claimant that he would not be hired until he successfully completed the orientation process. The claimant argues that the payment of the $50.00 per day was wages and is evidence that he had been hired. However, the paperwork he signed clearly indicates that these payments would not be made unless the orientation was successfully completed. Wages are defined as the money rate at which the service rendered is recompensed. It is undisputed that the monies paid for the first two days were a flat rate, different from the wage ultimately offered to and accepted by claimant. In addition the claimant would only receive this flat rate if he successfully completed the orientation. If he did not successfully complete the orientation he would not be given the flat rate. However, had he been working for those two days he would have been entitled to his wages for the time he was there, whether or not he successfully completed the orientation period.
Ultimately, the JCC found that because Claimant's physical, drug test, and driver's test “had not been completed or results received by the Employer,” there had not been an unequivocal offer of employment. Consequently, the JCC denied all claims for compensation under chapter 440, and dismissed all remaining petitions. This appeal followed.
The status of an employment relationship can be determined as a matter of law. Phillips v. Unicare Amelia Island, Inc., 458 So.2d 50, 52 (Fla. 1st DCA 1984) (citing Sosa v. Knight–Ridder Newspapers, Inc., 435 So.2d 821, 826 (Fla.1983)). The issue presented here involves a legal issue of first impression: whether an individual injured during a mandatory orientation session is deemed an employee, such that he is subject to the Workers' Compensation Law. Although this court has established that former employees may be subject to the Law for injuries sustained after the contract of employment has terminated, it has not similarly addressed whether individuals undergoing training or orientation sessions mandated by an employer are covered. See Phillips, 458 So.2d at 52 () (citing 1A Arthur Larson, The Law of Workmen's Compensation, § 26.03[1] ) ( that course and scope extends to collecting pay, unless undue delay is shown).
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