Employed, but not an employee: the applicability of Florida's head-of-household exemption.

• Author: Haugen, Anna

Florida has long recognized the necessity to protect its citizens from "financial reverses and difficulties." (1) This protection has been particularly singled out for the head of a family--the person who is providing more than half of the support for a child or other dependent (2) and bearing additional responsibilities for support of dependents. (3) This policy is codified in F.S. [section] 222.11, which exempts the head of household's wages from garnishment. (4) The Florida Supreme Court has explained that the purpose of this exemption is to prevent the unfortunate "from being deprived of the necessaries of life ... where his livelihood is produced by his personal labor and services, to so protect him and his family that such earnings may not be taken from them and they be left destitute and a charge upon charity." (5)

It is unremarkable then, that this exemption has been liberally applied to a person's earnings for labor and services (i.e., earnings by an employee). (6) By contrast, individuals determined to be "independent contractors" have not so easily availed themselves of the exemption. In Florida, there is no absolute rule for determining whether a person is an independent contractor or employee, and each case must be determined on its own facts. (7) Accordingly, Florida courts have generated a plethora of caselaw distinguishing between employees and independent contractors and, by extension, the applicability of the "head-of-household" exemption. This article discusses the evolving caselaw for determining the applicability of [section] 222.11 and details how Florida's bankruptcy courts have most recently interpreted this body of jurisprudence and, in turn, applied the head-of-household exemption.

Section 222.11(2)(b) provides, "disposable earnings of a head of family ... may not be attached or garnished unless such person has agreed otherwise in writing." (8) Such qualified earnings remain exempt for six months provided the earnings are received by a financial institution. (9) Section 222.11(1)(a) defines "earnings" as "compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus." (10) A close review of the relevant caselaw illustrates that earnings will most likely be protected under [section] 222.11 when an employer-employee relationship is established.

Florida courts have consistently applied the tests developed by the Restatement (Second) of Agency (1958) and common law to determine whether an individual is an employee or an independent contractor. (11) Florida courts have expounded at length on these tests. (12) In Ware v. Money-Plan International, Inc., 467 So. 2d 1072, 1073 (Fla. 2d DCA 1985), Florida's Second District Court of Appeal observed that, at common law, there are four pertinent elements considered in determining the existence of an employee-employer relationship: 1) control of the servant's conduct; 2) selection and engagement of the servant; 3) power of dismissal; and 4) the payment of wages. Most critical to this inquiry is whether there is "the power to control and to direct the manner in which the work shall be done." (13)

As stated, the distinction of employee or independent contractor is crucial because the earnings of an independent contractor have been placed outside of the head-of-household exemption. The Florida Supreme Court first addressed this distinction in the context of the head-of-household exemption in 1931 in Patten Package Co. v. Houser, 102 Fla. 603 (1931). In Houser, $635.50 was obtained by writ of garnishment from the defendant, the garnishee. The defendant asserted such garnishment was improper as the monies garnished were exempt pursuant to the head-of-household exemption. (14) The court's determination of the applicability of the head-of-household exemption hinged on...