By Adrian Middleton, Sword & Shield, PLLC · Updated Monday, October 19, 2026
The definitions that decide cases
| Subsection | Defines | The rule |
|---|---|---|
| (10) | Construction industry | For-profit activities involving any building, clearing, filling, excavation or substantial improvement in the size or use of any structure or land; a homeowner's own residence is excluded for one year |
| (11) | Corporate officer, for LLCs | A member of an LLC who owns at least 10 percent is treated as a corporate officer for exemption purposes |
| (18)(b) | Officers as employees | Officers who perform services are employees unless they elect exemption; in construction, no more than 3 per corporation or affiliated group, each owning at least 10 percent |
| (18)(c) | Construction workers | Every person paid to work in construction is an employee of the payer unless they carry their own policy or hold a valid exemption; sole proprietors and partners included |
| (18)(d)1 | Independent contractor, non-construction | A worker is an independent contractor only if at least 4 of 6 criteria are met (separate business with own facility, truck, equipment or materials; FEIN; compensation paid to the business rather than the individual; business bank accounts; free to work for others; paid by bid or task rather than as an employee), or if the 7 secondary factors show it; the burden is on the party claiming it |
| (19)(a) | Employer | Includes the principals of a business for purposes of ss. 440.105 through 440.107, so owners are personally the employer in enforcement |
| (19)(b) | Homeowner | A homeowner is not an employer of workers on their own residence |
| (20)(b)2 | Coverage thresholds | 4 or more employees outside construction; 1 or more in construction |
| (20)(c)2 | Agricultural thresholds | 6 or more regular employees, or 12 or more seasonal workers who work more than 30 days in a season and more than 45 days in a year |
Employee versus independent contractor
Outside construction, subsection (18)(d)1 sets a six-part test. A person is an independent contractor if at least four of the following are true: they maintain a separate business with their own work facility, truck, equipment or materials; they hold or have applied for a federal employer identification number, or are a sole proprietor not required to have one; compensation for their work is paid to the business rather than to them individually; they hold one or more bank accounts in the business name; they are free to perform work for others; and they are paid on a competitive-bid or per-task basis rather than under an agreement that states an employment relationship. If fewer than four are met, seven secondary factors are weighed, among them control over the means of doing the work, the ability to work for others, and the method of payment. The party asserting independent contractor status carries the burden.
In construction, none of that applies. Subsection (18)(c) makes every paid worker an employee unless they have their own policy or exemption. See misclassification and the $5,000 per worker penalty.
Construction industry
Subsection (10) is broad on purpose, and Rule 69L-6.021 lists the NCCI class codes the Division treats as construction. Landscaping that grades or installs hardscape, sign installation, cabinetry installed on site, and low-voltage wiring are construction. Lawn maintenance and cleaning are not. The classification decides the threshold (one employee versus four), the officer limits, and the rate.
Owners are the employer
Subsection (19)(a) makes the company's principals the 'employer' for sections 440.105, 440.106 and 440.107. The stop-work order names the company. The criminal referral names a person.
Not sure which definition you fall under? That is the first question we answer.
(850) 766-6825Free consultationRead the official text of s. 440.02, Fla. Stat. This page explains the statute; it does not reproduce it. Quote the statute.
Questions
Is landscaping construction under Florida workers' comp law?+
It depends on the work and the class code. Landscape installation involving grading, excavation or hardscape falls within the subsection (10) definition and the Rule 69L-6.021 list; routine lawn maintenance generally does not. See the landscaping page.
Do part-time employees count toward the four-employee threshold?+
Yes. Subsection (20)(b)2 counts employees, not full-time equivalents, and non-exempt officers count too.
Does a homeowner need workers' comp for a contractor's crew?+
No. Subsection (19)(b) excludes a homeowner from the definition of employer for work on their own residence. The contractor is the employer of the crew.