Florida Mediation Group, Inc.



By Donald J. Spero

I The Purpose of the Unemployment Compensation Act ("the Act")

Unemployment compensation laws came into being in the United States as a result of the depression of the 1930's. The Florida statute was first enacted in 1937. In its declaration of policy, the statute notes that "Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of this state." F.S.443.021 The legislature acknowledged that unemployment was a subject of concern requiring legislative action "...to lighten its burden which now so often falls with crushing force on the unemployed worker and his family." The Act further requires that unemployment compensation law:

... shall be liberally construed to accomplish its purpose to promote employment security by increasing opportunities for placement through the maintenance of a system of public employment offices and to provide for the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment. F.S.443.031

The essence and purpose of the Act are well described in a booklet published by the Department of Labor and Employment Security, the Florida Unemployment Compensation Employer Handbook (Rev. 11/94) at p. 1:

Unemployment Insurance provides temporary income payments to make up a part of the wages lost to workers who lose their jobs through no fault of their own, and are available for work. It is not a 'relief' or 'welfare' type payment and is not available just for the asking. It is job insurance paid by a tax on industry. The objective is to provide a cushion to absorb some of the shock of unemployment --both to the jobless workers and their families and the business personnel in the economy. The temporary income, plus other resources, helps the workers sustain their families when they are without a job. It also keeps money flowing into business houses as they spend these payments to provide for their needs until they can obtain jobs or the duration of the benefit ends. Thus, it helps maintain purchasing power which many consider the key to business prosperity. In this way it promotes economic stability and helps to stave off the downward cycle that leads to depressions. Business personnel credit this program with playing an important part in bringing quick recoveries from business recessions.

II. Which Employers Have Employees Covered by the Act

The Act is very broad in its coverage. As a rule of thumb any person or entity who has paid wages for services in the amount of $1500.00 in any calendar quarter, either in the current year or in the preceding year, is subject to the Act. F.S.443.036(19)(a) An alternative test applies the Act to those who have employed at least one individual for any portion of a day in 20 different calendar weeks, whether consecutive or not, in either the current or preceding calendar year.

Agricultural employers are covered if they have paid wages of $10,000.00 or more to individuals employed in agricultural labor in the current or preceding year. F.S.443.036(19)(e)2

They are also covered if they have employed five or more individuals in twenty different calendar weeks, whether consecutive or not, in the current or preceding calendar year. Under some circumstances individuals working in agriculture who are hired by a crew leader may be treated as employees of the crew leader for purposes of unemployment coverage rather than as employees of the person who contracts with that crew leader. Crew members who operate or service mechanized agricultural equipment, such as combines or tractors that are provided by the crew leader, are considered employees of the crew leader. In order to make certain that other crew members are treated as employees of the crew leader, the contracting party should make certain that the crew leader holds a valid certificate of registration under the Migrant And Seasonal Agricultural Workers Protection Act of 1983.

Public employees, i.e. those employed by the state or any of its instrumentalities or political subdivisions, are also covered provided they are not elected officials, legislators, judges or in non tenured policy positions ordinarily requiring no more than 8 hours of work per week. F.S.443.036(19)(b)) & (19)(d)(4) Those performing services in a religious or charitable organization are covered where the organization has four or more persons employed in at least 20 different weeks in the current or preceding calendar year. F.S443.036(19)(c)

Persons employed in domestic service, including those working in a private home are covered if they have been paid the sum of $1,000.00 or more in any calendar quarter in the current or preceding calendar year. F.S.443.036(19)(g)

There are a number of exclusions from coverage under the Act. Among the exclusions are duly ordained ministers, elected officials and inmates of penal institutions. Also excluded are persons employed by a church or convention of churches and church organizations operated primarily for religious purposes. F.S.443.036 (19)(d) Additional exclusions apply to those in the service of a foreign government, student nurses performing service in a nurses training program, insurance and real estate salespersons who are compensated solely by commission, newspaper deliverers or distributors who are under the age of eighteen. Students are excluded when they are working in programs that combine academic instruction and work experience, and the work experience is an integral part of the program. Among the others who are not covered are barbers who are paid solely by commission and casual labor F.S.443.036(19)(n) 18&19 Casual labor is incidental, occasional or irregular work not exceeding 200 hours on a particular project, performed on no more than 10 consecutive days in a calendar month or in two consecutive calendar months. F.S.443.036(9) An employee who is leased from an employee leasing company is covered as an employee of the leasing company and not of the lessee employer. F.S.443.036(19)(a) 1.b. Persons in the service of the Federal Government or of one of its instrumentalities are not covered. F.S.443.036(19)(n) 5 The list of exclusions is long and the statute should be consulted for particulars.

III. How The Employer Is Assessed

Covered employers are assessed contributions, which are paid into the Unemployment Compensation Trust Fund. F.S.443.036(11) The assessments are determined and payable on a quarterly basis. F.S.443.131(1) Employer's are prohibited from deducting the contributions from employees' wages. F.S.443.131 2(b)

Contributions are due on or before the last day of the month following the quarter for which they are payable. (Florida Administrative Code Rule 38 B-2.027) Interest is charged on delinquent payments at the rate of one percent per month after the due date. F.S.443.131(3)(1)(a) The interest that is collected is paid into the Special Employment Security Trust Fund.

Newer employers, those whose employment record has been charged with payments for less than eight calendar quarters, pay 2.7 percent of the wages they have paid. F.S.443.131(2)(a) Wages as defined in the Act, consist of all remuneration paid for employment, including bonuses. back pay awards and the cash value of remuneration paid in forms other than cash. Wages also include tips and gratuities. Wages do not include sums paid to an employee in excess of $7,000.00 in a calendar year by an employer or the employer's predecessor .F.S.443.036(33)(a)&(b) In other words only the first $7000.00 of an employees wages are assessed for unemployment compensation tax purposes. Also excluded from wages are Workers Compensation payments, payments under medical or disability plans and the value of meals or lodgings furnished an employees and his or her dependants on the employer's premises for the employers convenience. There are also numerous other exclusions including the value of various deferred compensation plans and other fringe benefits. Where an employer offers such benefits in addition to salaries the statute should be consulted for details.

A larger contribution is required from employers whose employment record has been chargeable with benefit payments for at least eight calendar quarters. They must "...pay contributions at the rate of 5.4 percent of wages, except as otherwise determined by [their] experience rating..." F.S.443.131(2)(b) The 5.4 percent contribution is the maximum an employer must pay. This percent is subject to being reduced, based on the employer's "benefit experience." F.S.443.131(3)

The division computes a "benefit ratio" for employers whose employment record has been charged for the 12 consecutive quarters ending June 30 of the preceding calendar year. F.S.143.131(3)(b)(1) The benefit ratio is determined by dividing the total benefit payments chargeable to the employer's employment record during the three year period ending June 30 of the preceding calendar year by the total of the employer's annual payroll in the three year period ending on June 30 of the preceding calendar year. The payments chargeable to an employer's record are the benefit payments made to an eligible individual within his or her base period. F.S,443.131(3) (a) Where more than one employer has paid wages to the individual during the base period, the record of each such employer who has paid at least $100.00 is charged proportionately. Each employer is charged in the proportion that its payments bears to the total wages paid to the employee. F.S.443.131(3)(a) The term "annual payroll" means the calendar quarter payroll of the employer. The benefit ratio is used in a series of formula computations, to determine the employer's tax rate. The rate may not be reduced to less than 0.1 percent.

An employer's assessment takes into account the payroll information the employer is required to furnish the division in quarterly wage and tax reports. The reports are due no later than the last day of the month after the calendar quarter which the report covers. (Florida Administrative Code Rule 38 B-2.025(1)) The reports must be prepared and filed on LES forms UCT-6.(Attachment "A") It is very much to the employer's advantage to file the report on time for several reasons. An employer is subject to a penalty of $25.00 per month for failing to file the required reports on time. More significant in terms of dollars and cents, if an employer fails to file a report when it is due, the division uses whatever information is readily available in calculating the employer's contribution.. F.S.443.141(2)(a)1 The larger the amount of the employer's payroll, the lower the benefit ratio used in assessing the employer will be. Thus to get the full benefit of the amount of its payroll, the employer should file on time.

Timely reporting and payment of the employer's contribution is necessary for the employer to obtain the full benefit of the state tax credit against the Federal Unemployment Tax. The employer who is timely receives a credit against the federal tax of an amount equal to 5.4% of the employer's payroll. The untimely employer receives only 90% of that credit. This can result in a significant monetary loss for the employer.

Certain benefit payments are not charged to an employer's account. An employer is not charged for an employee who is offered part time work while receiving partial benefits due to loss of employment with another employer. Additionally an employer can avoid being charged for benefits paid to an employee who has refused other suitable work. The employer must notify the division of that fact. F.S.441.131(3)(a) To obtain the benefit of these provisions the employer must give notice of the circumstances to the division. The circumstances where the employer is not charged for benefits are where:

1. The individual has left his or her employment without good cause attributable to the employer or has been discharged for misconduct no benefits paid to that employee will be charged to the employer.

2. An individual has been discharged for unsatisfactory work performance during an initial employment probationary period any benefits paid to that person are not charged to the employer. The probationary period must be no longer than 90 days from the commencement of employment and must apply to all employees or a specific group of employees.

3. A separated employee has refused suitable employment without good cause, benefits paid to that individual are not charged to the employer. In such situations good cause does not include distance from the offered position caused by a change of residence of the person.

4. Separation from employment is due to a natural disaster.

Non profit organizations and state and political subdivisions are assessed in a different manner unless they elect to be assessed as described above. They are billed by the division for the amount of benefits paid. F.S.443.131(4)&(5)


IV. Which Employees Are Eligible For Unemployment Compensation Benefits

In order to obtain benefits, an employee must make a claim in the manner provided by the rules of the Division of Unemployment Security ("the division"). F.S.443.091(1) The employee is also required to register for work at the division and continue to report to the division. The division, in turn must report to Florida State Employment Service. To be eligible the employee must have been paid for "insured work" (i.e. work performed for a covered employer) equal to 1.5 his or her high quarter wages in his or her "base period." F.S.443.091(b) The employee's base period is the first four of the last five quarters worked. F.S.443.036(5) The employee who has earned less than $3400.00 is not eligible for benefits. F.S.443.091 1(f)

One of the conditions of eligibility for unemployment compensation is that the individual must be "...able to work and available for work." F.S.443.091(1)(c) 1. In Florida Industrial Commission v. Ciarlante, 84 So. 2d 1 (Fla. 1955) the claimant had worked for years during the winter season only, as a "high class" dressmaker. She was invariably laid off when the seasonal work dried up. The seasonal dressmaker was found to be ineligible for benefits during her post season layoff. The court reasoned that she was content to work at a trade that provided only seasonal work for many years, and that she was only half hearted in her pursuit of off season work. This indicated that she was not attached to the labor market. She was therefore found not to be available for work. In Adams v. Auchter Co., 339 So. 2d 623 (Fla. 1976). a claimant, who refused to take a job that was comparable to the position he had lost, because it was not a union job, was found ineligible as he was unavailable for work.

Once an employee has been paid unemployment compensation benefits, the employee may not receive benefits in the next benefit year unless the employee has earned wages in an amount not less than three times the individual's benefit amount for his or her benefit year. F.S.443.091(2) A benefit year is a one year period that begins with the first week that the person files a valid claim for benefits. Once a person has made a valid claim for benefits, that person's benefit year begins with the first week in which he or she files a valid claim for benefits after the end of his or her last benefit year. F.S.443.036(6)

The maximum benefits a person is eligible to receive in a benefit year is 25 percent of the individual's total wages during his or her base period, not to exceed $7150.00. F.S.443.111 5 (a) 1 This works out to a maximum of 26 weeks of unemployment benefits. The weekly benefit amount is determined by dividing the employee's total wages in the highest quarter in his or her base period by 26. The maximum weekly benefit is $275.00. The weekly benefit may not be less than $32.00. F.S.443.111(3)

V. How Claims Are Processed And Appealed

Employers are required to post a notice in a location accessible to employees advising them of various information relating to their rights to obtain unemployment compensation benefits and how to file claims. F.S.443.151(1)(a) A copy of the required notice supplied by the division is attached as Attachment "B." An individual's claim is filed on a form UCB-412. At the time of filing, the claimant must be informed that benefits are subject to federal income tax and that he or she may elect to have tax withheld. F.S.441.151(b) Any employer whose benefit rate may be affected by the claim receives notice that the claim has been filed. If the employer has some basis for protesting the claim, it is important to submit the information on which the dispute is based promptly, to avoid benefits being paid to the claimant.

The employer receives a form asking for information. The form should be filled out and returned. Care should be taken to accurately report the claimant's reason for separation. It is important to make no statement that can not be supported. It is advisable to stick to a succinct statement of essential facts.

After a claim is filed, an initial determination is made by one of the division's examiners. F.S.441.151(2) Either the employer or the claimant may appeal the determination within 20 days of the mailing of the notice. When an appeal is filed a hearing is conducted by one of the division's salaried staff referees The referee is required to be impartial. The referee has the power to administer oaths. He also can take depositions and to issue subpoenas to compel the attendance of witnesses as well as the production of books and records. F.S.443.171(8) A witness may not be excused because of the possibility that required testimony might be self-incriminating. However where the witness asserts the privilege against self-incrimination, that person's compelled testimony can not be used to subject the witness to any penalty other than for perjury with respect to that testimony. F.S.443.771(10)

An audio tape recording is made of the hearing before a referee. A transcript may be obtained if needed for an appeal. The quality of the tapes leaves much to be desired, but a party who is willing to bear the expense may have a court reporter present.

There are pros and cons to proceeding to a hearing. A party may use the hearing to learn more about an opponent's case if subsequent litigation is anticipated. On the other hand a party may not wish to disclose to an opponent, information that will come our in the hearing.

Whatever the outcome of the case, neither party needs to fear being bound by the findings in an unemployment appeal in any future case. The act provides that "Any finding of fact or law, judgement, conclusion, or final order made by a hearing officer, the commission or any person with the authority to make findings of fact or law in any proceeding ...shall not be conclusive or binding in any separate or subsequent proceeding ..." F.S.443.0315 On the other hand, an issue decided in a prior civil suit may not be re-litigated in an unemployment compensation proceeding. The claimant in City of Hialeah Gardens v. Prieto, et al, 353 So.2d 200 (Fla. 3rd DCA 1977) had filed a civil action before seeking unemployment compensation benefits. In that action the court ruled that he had left his employment voluntarily. He was bound by that prior ruling when he subsequently sought unemployment compensation benefits.

Either party may appeal the decision of the referee. The appeal must be filed within 20 days of the mailing of the notice of the decision. F.S.441.151(4)(b) The Unemployment Appeals Commission (the "commission") decides the appeal on the basis of the evidence already in the record or it may direct additional evidence to be taken. The commission may elect on its own to review the decision of the referee within 20 days of the mailing of the decision. F.S.443.151(4)(c) The employer, the claimant and the division may appeal the decision of the commission to the appropriate district court of appeal.

While a decision of a referee or the commission allowing benefits is on appeal, the claimant continues to receive benefits. However, where a determination allowing benefits is ultimately reversed, the employer is not charged with the benefits. F.S.443.151(5)(b)

The benefits awarded to employees are not subject to garnishment except for child support. F.S.443.051(2)&(3) The division may withhold child support payments, either at the request of the claimant or pursuant to legal process requiring sums to be withheld. An individual's rights to benefits under the act may not be waived or released.


VI. Disqualification for Misconduct

A. Introduction to Misconduct

An individual is disqualified from receiving unemployment compensation benefits during any period of unemployment due to being discharged or suspended for "...misconduct connected with his or her work." F.S.443.101(a) 2. The period of disqualification extends until the individual has earned 17 times his or her benefit rate, but for no more than 52 weeks following the discharge or suspension.

The Act defines misconduct at F.S.443.036 (26):

MISCONDUCT- "Misconduct" includes, but is not limited to, the following, which shall not be construed in Pari Materia with each other:

(a) Conduct evincing such willful disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has a right to expect of his or her employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

The question of whether a discharged individual has committed misconduct is one that is frequently argued in proceedings before a referee, the Unemployment Appeals Commission or a court. When an employer contests an individual's right to receive benefits on the basis of misconduct, the employer has the burden of proof. The employer must prove both that the act or acts were committed and that the actions of the employee fulfill the statutory definition of misconduct. This burden must be sustained by a clear preponderance of the evidence. Tallahassee Housing Authority v. Florida Unemployment Appeals Commission, 483 So. 2d 413 (Fla. 1986)

B. Cases in Which There Have Been Findings of no Misconduct

It is clear that the question to be decided is not whether the employer was justified in dismissing the employee, but whether the conduct amounted to misconduct as defined in the Act. As the court said in Spaulding v. Florida Industrial Commission, 154 So. 2d 334.337 (Fla. 4th D C A 1963 (1963) " ... there may be violations of rules for which an employer might choose to discharge a workman which would not operate to disqualify the worker for benefits under the act."

The controlling principals in deciding unemployment compensation appeals were well stated in Benitez v. Girlfriday, Inc., 609 So. 2d 665, 666 (Fla. 3rd DCA 1992):

Misconduct, as a ground for disqualification from unemployment compensation benefits, is to be narrowly construed. The burden of proving misconduct is on the employer. Moreover, there is a distinction between the word misconduct as used in labor law and misconduct as defined for unemployment compensation purposes. Misconduct serious enough to warrant an employee's dismissal is not necessarily serious enough to warrant the forfeiture of compensation benefits. (Citations omitted)

Applying these principals it has been held that an isolated act of poor judgement will not of necessity amount to misconduct. LaRocca v. Unemployment Appeals Commission, 643 So. 2d 1199 (Fla. 5th DCA 1994) Thus in Cooks v. Unemployment Appeals Commission, 670 So.2d 178 (Fla. 4th DCA 1996) the claimant was not disqualified when he was dismissed after he challenged his manager to fire him during a heated discussion in which he was being criticized. The court contrasted the facts in that case with Hines v. Department of Labor and Employment Security, 455 So. 2d 1104 (Fla. 3rd DCA 1995) where the claimant was disqualified for challenging his foreman to fire him. In Hines, the claimant had previously suggested to the company vice-president during a heated discussion that he should fire him. At that time he had been warned that a repeat of this conduct would lead to his dismissal. The distinction in Hines was that the employee repeated the conduct and there was a specific warning. Repetition of the conduct and prior warnings are often the facts on which a decision as to compensability is based. In Benitez, supra, 609 2d at p.666 the claimant was allowed one free pass where she called her manager a "liar" and a "f...ing son of a bitch." The court characterized it as an isolated incident, which did not amount to misconduct. In Gunther v. Barnett Banks, Inc., 598 So. 2d 243 (Fla. 2nd DCA 1992) a bank security guard was found not to have been guilty of misconduct where he initially prepared his security survey of one branch bank on information he received over the telephone. The employer stated that he should have made an on-site visit. He did later visit the branch on his own initiative, after discussing the matter with his employer. The court emphasized the fact that the guard had not been specifically instructed to visit the branches. The court pointed out that the employer could point to no order that he had disobeyed or to any rule or policy that he had violated. The court found that it was at most an isolated act of bad judgement. In Bulkan v. Florida Unemployment Appeals Commission, 648 So.2d 846 (Fla. 4th DCA 1995) an automotive service technician was not guilty of misconduct when, on one occasion, he worked on a car without preparing a service order. This was in violation of a recently initiated rule prohibiting technicians from working on an automobile unless a service order was prepared for the vehicle.

The lesson to be learned from the cases is that an employer should have well disseminated rules and procedures. The employer should document guidance and warnings given to employees about serious misconduct and performance deficiencies. These are the same principals that apply to reducing exposure to the far more costly suits brought by employees under the various anti-discrimination laws.

An employee who is fired for refusing to obey a supervisor's order may be allowed unemployment compensation benefits if the refusal is 'reasonable." A truck driver was not disqualified when he was fired for refusing to drive an over-wide load during rush hour on an interstate. He believed it was illegal to do so under the permit that his employer gave him. Since the language of the permit was not altogether clear, he had made inquiry of fellow drivers. They concurred with his view that the permit was not valid on the interstate during rush hour. The courts determined that he was reasonable in his belief. Pascarelli v. Unemployment Appeals Commission, 664 So. 2d 1089 ( Fla. 5th DCA 1995) Like reasoning was applied in Gerhart v. Florida Unemployment Appeals Commission, 694 So. 2d 880 ( 2nd DCA 1997) where an employee was discharged for refusing to turn over receipts and canceled checks for expenses she incurred and paid our of her own pocket. The court held that the controlling factor was whether it was reasonable for her to retain documents that she believed belonged to her.

An unreasonable refusal to perform one's duties will result in a denial of benefits. An employee who declined to work in a freezer because of the increased cold after the employer decided to keep the freezer fan running, was guilty of misconduct. Kraft, Incorporated v. Unemployment Appeals Commission, 473 So.2d 1183 (Fla. 2nd DCA (1985) The court reasoned that an employee can not refuse to perform additional or different work that is within the ambit of the work for which he or she was hired. The court noted that other employees were able to work in the freezer. The court suggested that its ruling might have been different if the employee had provided a medical reason for his refusal.

The issue of whether an individual was discharged for misconduct often comes up in cases where there has been a physical altercation. As a rule, where there is provocation and the claimant is not the aggressor, no misconduct will be found. In Davis v. Florida Unemployment Compensation Appeals Commission, 472 So.2d 800 (Fla. 3rd DCA 1985) the claimant was awarded benefits after she reacted to a co-worker's verbal attack which included racial insults.

The co-worker slapped her and also attempted to kick her. The claimant threatened to get a gun from her car if she was attacked again. She had to be restrained from lunging at another co-worker who had joined in the fray. The court conceded that there may have been poor judgement, but it made allowance for the fact that an otherwise satisfactory employee was provoked. See also Lucas v. Unemployment Appeals Commission, 664 So. 2d 1043 (Fla. 2nd DCA 1995) where benefits were awarded to one who pushed a co-worker with his hand as the two came toward each other. The co-worker had provoked the confrontation with repeated verbal badgering. The court found this to be a non-disqualifying single act of loss of self control.

A decision as to whether a dismissed employee's action amounts to misconduct may turn on intent. In Proffitt v. Unemployment Appeals Commission, 658 So.2d 1995 (Fla. 5th DCA 1995) the claimant was dismissed for failing to reveal a grand theft conviction on his application in response to a query that called for this information. He was found not to have committed misconduct. The court held that he reasonably believed that the order in his criminal case stating "adjudication withheld" meant that he would not have a record of the conviction. The court noted that for the employer to establish misconduct it must prove "...the claimant's action ...[to be] more than an error in judgement or discretion and the employer must prove that the employee's action was willful, wanton, or deliberate." Proffitt, supra, 658 So.2d at p. 187

A single error in judgement will not qualify as misconduct. Thus a bank branch manager, who was fired for causing a monetary loss by releasing funds to a customer before the customer's deposits had cleared, was allowed unemployment compensation benefits. Miller v. Barnett Bank of Broward County, 650 So.2d 1089,1090 (Fla. 3rd DCA 1995) The court contrasted what it characterized as a "single good faith mistake" from the conduct that disqualified a bank teller in Terjesen v. Florida Unemployment Appeals Commission,491 So. 2d 1189 (Fla.3rd DCA 1986). There the employee had repeatedly mishandled funds, causing financial losses to the bank.

C. Cases in Which Misconduct Has Been Found

The previous discussion makes it clear that not every individual who is justifiably dismissed by an employer will be denied unemployment compensation payments. Nevertheless, benefits will be denied where there is deliberate or severely negligent conduct that is so detrimental to the employer's interests that it fulfills the statutory definition of misconduct.

An employee who is unable to report to work due to his or her own fault may be denied benefits. For example, an ambulance washer who was incarcerated for failure to pay child support was denied benefits. Hillsborough County, Department of Emergency Medical Services v. Unemployment Appeals Commission, 433 So. 2d 24 (Fla. 2nd DCA 1983) This decision is difficult to reconcile with the subsequent decision of the same court in Livingston v. Tucker Construction and Engineering, et al, 656 So.2d 499 (Fla. 2nd DCA 1995). In Livingston the claimant was allowed benefits although he was unable to report to work while on an out-of-town assignment due to an arrest for being drunk and disorderly.

In Silver Springs, Inc. v. Florida Department of Commerce, Division of Employment Security, 366 So. 2d 876 (Fla. 1st DCA 1979) an individual who was warned after two previous disruptive incidents with female co-workers, was denied benefits after a third such incident. A supervisor who kissed a young female employee who he supervised, lightly on the cheek, in violation of his employer's sexual harassment policy, was denied benefits in Sears, Roebuck and Co. v. Florida Unemployment Appeals Commission, 463 So. 2d 465 (Fla. 2nd DCA 1985)

A single act of intoxication on the job in a safety sensitive industry may result in a finding of a disqualifying act of misconduct. Florida Mining & Materials Corporation v. Florida Unemployment Appeals Commission, 530 So. 2d 426 (Fla. 1st DCA 1988) An employee who altered his time records to show he was working when he was not was denied benefits on the basis of misconduct. Brooks v. Unemployment Appeals Commission, 695 So.2d 879 (Fla. 5th DCA 1997)

The Act specially disqualifies from benefits one who is discharged for misconduct consisting of drug use where it is confirmed by a positive test. F.S.443.101(1)(d) A single episode of drug use may result in a finding of disqualifying misconduct. Ford v.

Southeast Atlantic Corporation, 588 So. 2d 1039 (Fla. 1st DCA 1991)

An employer may run into difficulty in proving illegal drug use. The Act provides some assistance in this respect in F.S.443.101(11), to an employer who obtains a beneficial insurance rating from the Department of Insurance as provided in the insurance code at F.S.627.0915. The rating is obtained by maintaining a drug free work place as set out in the Workers Compensation Act, F.S.440.102, An employer with the required rating is entitled to admit in evidence, drug test results from a drug testing laboratory that is licensed and approved as provided in F.S. 440.102(9). Such test results and the chain of custody documentation provided to the employer by the laboratory will be self- authenticating, admissible and will create a rebutable presumption as to their validity.

An employer who plans to take advantage of this section of the statute must be certain to have a representative present at the hearing who can testify competently as to the employer's insurance status. It is also necessary to have a representative of the testing laboratory who is competent to introduce into evidence the laboratory's certificate of approval. In SKF Management v. Unemployment Appeals Commission. 664 So.2d 345 (Fla. 5th DCA 1996), the employer was unsuccessful in proving drug related misconduct because it only presented hearsay testimony as to these crucial elements.

A discharge for absence due to drug addiction may not disqualify an employee from receiving benefits on the basis of misconduct. In Gainer v Florida Unemployment Appeals Commission, 503 So. 2d 428 (Fla. 3d DCA 1987), the court observed that the employee may be treated as having a non-disqualifying illness, permitting an inference that the intent required to constitute misconduct is not present.

An employee who is discharged for poor performance is not guilty of misconduct and will not be denied benefits. Gentsch, Larsen, Traad, M.D. v. Florida Department of Labor and Unemployment Security, 390 So.2d 802 (Fla. 3rd DCA 1980) In Spaulding, supra, a grocery supermarket employee failed to ring a cash sale immediately, contrary to the employer's rules. The court awarded her benefits, finding her action to be incompetence, which did not disqualify her, rather than misconduct.

In some cases employees who have been discharged for poor performance have been denied benefits based on a finding that their conduct was willful. In these instances it was determined that the employee was fully capable of performing up to the employer's standards. Therefore the failure to perform the job was deliberate. The court commented in Rycraft v. United Technologies, et al, 449 So. 2d 382,383 (Fla. 4th DCA 1984) Click here for the Appeal from the Department of Labor and Employment Security Unemployment Appeals Commission on the RYCRAFT v. UNITED case.

While inefficiency or sub-standard performance are not misconduct where they result from inability, a different result obtains where a capable employee refuses to perform. An employee's refusal to apply himself where he is able can evidence intentional and substantial disregard of the employer's interests.

In Rycraft, a long service employee, contrary to his employer's instructions, mired himself in unnecessary clerical tasks, made frequent errors, arrived late for work and did personal work on company time. In denying him unemployment compensation the court placed some emphasis on the fact that the employee was not responsive to the considerable steps the employer took to counsel him and to direct his efforts. Similar reasoning was followed in Odom v. Unemployment Appeals Commission, 586 So. 2d 504 (Fla. 5th DCA 1991) involving a forklift operator who repeatedly miscounted his loads. He declined to follow his employer's instruction to get off of his forklift to perform the count after each load. His miscounts continued. Finally he was dismissed when he caused a drum to spill. The court found him disqualified reasoning at 586 So. 2d 506 that "The employee's actions when taken together evince a willful and wanton disregard of the employer's interest and a deliberate intent to refuse to follow the employer's reasonable instructions after warning, and such behavior amounts to misconduct connected to work."

D. Absenteeism

The Florida Supreme Court has ruled in Tallahassee Housing Authority, supra 483 So. 2d at p.414 that:

In our view, excessive unauthorized absenteeism presumptively hampers the operation of a business and is inherently detrimental to an employer. We hold, therefore, that a finding of misconduct under section 443.036(24) is justified when an employer presents substantial competent evidence of an employee's excessive unauthorized absenteeism. Once excessive unauthorized absenteeism is established, the burden is on the employee to rebut the presumption that his absenteeism can be characterized as 'misconduct' within the meaning of the statute.

An employee who left work early to attend to moving her residence, contrary to her employer's instructions, was found guilty of misconduct and denied benefits in Thurber v. Hillier & Wanless, P.A. et al, 642 So. 2d 75 (Fla. 4th DCA 1994) Where the employee has been shown

to be absent without personal fault, the rulings have favored the employee. A claimant sustained her burden of showing that her absences were not misconduct when she missed work because of injuries caused by her abusive husband in Gilbert v. Department of Corrections, et al, 696 So. 2d 416 (Fla. 1st DCA 1997).

The act specifically grants leeway for certain absences in F.S.43.101(a) 2. That section provides in part that an employee will not be disqualified for leaving work for good cause "...which consists of illness or disability of the individual requiring separation from his or her work." The court noted in Gilbert at 696 So.2d 418 that "Temporary absence from work because of illness or injury does not constitute misconduct connected with work of a kind that disqualifies a discharged employee from receiving unemployment compensation benefits."

In Thurston v. Florida Unemployment Appeals Commission, 507 So. 2d 728 (Fla. 3rd DCA 1987) an individual was allowed benefits after she was dismissed for being absent due to medical problems. In Vajda v. Florida Unemployment Appeals Commission, 610 So. 2d 645 (Fla. 3rd DCA 1992) the claimant was awarded benefits where she had to leave her telemarketing job due to migraine headaches. A 71 year old individual was not disqualified when he left his position because the physical demands of the job caused him excessive stress. Krulla v. Barnett Bank et al, 629 So 2d 1005 (Fla. 4th DCA 1993).

An employee's unauthorized absence will not be counted as misconduct if it is due to a family emergency. An employee who overstayed an authorized leave by one week to care for her father, who was returning from hospitalization for a brain tumor, was not denied benefits in Gadsden v. Florida Unemployment Appeals Commission, 616 So.2d 1196 (Fla. 2nd DCA 1993).

VII Disqualification for Voluntarily Leaving Employment

An individual is disqualified from receiving unemployment compensation benefits where "...he or she has voluntarily left his or her work without good cause attributable to his or her employing unit..." F.S.443.101(1)(a) Whether an employee had good cause for leaving is a commonly contested issue. An employee who resigns has the burden of proof that the resignation was for good cause. Buckeye Cellulose Corporation v. Williams, et al, 522 So.2d 39,40 (Fla. 1st DCA 1988)

In Smalls v. State of Florida Unemployment Appeals Commission, et al, 485 So. 2d 1 (Fla. 2nd DCA 1985) an employee quit because the frequent use of obscenity in his employment environment was offensive to his religious convictions. He was denied benefits as he was found to have left without good cause. A teacher who became ineligible to continue in his teaching position when he failed the teacher's certification examination was denied benefits in Gulf County School Board v. Washington, et al.. 567 So. 2d 526 (Fla. 1990) The court held that the teacher's losing his job did not amount to leaving for good cause attributable to his employing unit. The court reasoned that he was in fact fired when he failed to fulfil a prerequisite to his employment. The court analogized the teacher's predicament with the situation of the pizza delivery driver who could not work when his car ceased to function, citing Neller v. Unemployment Appeals Commission, 510 So. 2d 652 (Fla. 5 th DCA 1988). In Neller, having his own car to use was a condition of the delivery driver's employment. The courts have been liberal in finding good cause where employees have left their jobs on their own initiative. For example, an employee who is unfairly harassed by a supervisor may be eligible for benefits. In Buckeye Cellulose, supra, the claimant was awarded benefits because he quit due to constantly and incorrectly being accused of doing something wrong.

Employees who have quit due to fear for their personal safety due to the location of their employment have been found to have quit with good cause attributable to their employer. In Tannariello v Federation of Public Employees, et al., 437 So. 2d 799 (Fla. 4th DCA 1983) a woman who quit her job due to her fear of working in the location of her employment, was allowed benefits. The court ruled that her having to work alone in a building that it characterized as being in a questionable neighborhood, late in the afternoon was within the control of her employer. Thus she left with good cause attributable to her employer. The court reasoned at 437 So. 2d that :

To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able bodied qualified worker to give up his or her employment. ... The applicable standards are the standards of reasonableness as

applied to the average man or woman, and not to the supersensitive. (citations omitted)

In Wall v. Unemployment Appeals Commission, et al., 682 So. 2d 1187 (Fla. 4th DCA 1996) an employee who left her job due to fears caused by multiple burglaries in the store adjacent to her office, was held to have left for good cause.

The fact situations where employees have been awarded benefits after quitting their jobs are varied, as will be seen from the following scenarios. An employee who quit when she was paid less than she had been offered to leave her prior job, prevailed in Kralj v Florida Unemployment Appeals Commission, 537 So. 2d 301 (Fla. 2nd DCA 1989). Good cause was also found where an employee quit after having additional duties piled on with no help and no increase in pay. Morgan v. Unemployment Appeals Commission, 623 So. 2d 607 (Fla. 4th DCA 1993) In contrast is the case of a worker who left because he was temporarily required to take on the duties of an employee who had quit, in effect requiring him to perform two jobs. Perez v. State of Florida, et al., 377 So. 2d 806 (Fla. 3rd DCA 1979) The court found that Perez voluntarily left his employment under circumstances that would not reasonably impel the average employee to quit.

An individual who resigned in order to take his employer's reduction in force separation package was found to have left his employment for good cause attributable to his employer. Martin v. State of Florida, 654 So. 2d 1203 (Fla. 1st DCA 1995) An employee who was unable to perform the lifting requirements of her job after the person who had been assisting her left was found to have left with good cause. Gottardi v Joaquin General Distributors, Inc.,618 So. 2d 363 (Fla. 3rd DCA 1993) The court reasoned that one who resigns because of inability to meet the requirements of the job, is in the same position as one who is discharged for inability to perform the job.

A recurring theme is the situation of the employee who while receiving benefits, takes a part time or temporary job, and then quits the part time job. The courts have consistently held that quitting the second job does not disqualify the person from receiving full benefits from the lost job, which was the source of benefits. The courts reason that those receiving benefits should not be discouraged from accepting part time employment which reduces the amount of benefits paid to them. Neese v. Sizzler Family Steak House, et al., 404 So. 2d 371 (Fla. 2nd DCA 1981), Elmore v. Hammond,et al., 642 So. 2d 128 (Fla. 1st DCA 1994), Berger v.The Asolo Center For The Performing Arts, et al., 686 So. 2d 649 (Fla. 2nd DCA 1997)

Some cases raise the issue of whether an employee has in fact resigned. In Mathieu v. Ferman Motor Car Company, Inc., et al., 651 So. 2d 211 (Fla. 2nd DCA 1995) An employee had

to take part of the afternoon off when he was stricken with grief on receiving news of the death of a friend. He was found not to have voluntarily left his employment. The court decided that his repeated efforts to talk to members of management to get permission to return to work was evidence that he had not voluntarily resigned. He was therefore awarded benefits.

VII. Other Bases For disqualification

A. Refusal to Accept Suitable Work

An individual will be disqualified from receiving unemployment compensation benefits where he or she "...has failed without good cause either to apply for available suitable work when so directed by the division or employment office, or to accept suitable work when offered

to him or her ..." F.S.443.101(2) (emphasis supplied) The statute gives some guidance on what constitutes suitable work at F.S.440.101(2)(a):

In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk to his or her health, safety, and morals; his or her physical fitness and prior training; the individual's experience and prior earnings; his or her length of unemployment and prospects for securing local work in his or her customary occupation; and the distance of the available work from his or her residence.

In a somewhat unusual case, a distance of eighty miles was not found to be unsuitable.

When the employee originally accepted the job, she was able to ride with a co-worker. She was

able to collect benefits when she was laid off. When she was recalled, she was unable to return to work, as the co-worker was not available to drive her to and from work. The court denied her benefits, reasoning that her initially accepting the job was an acknowledgement that it was suitable. The court also observed that it is an employee's responsibility to provide transportation to work. Hill v. Unemployment Appeals Commission, 686 So. 2d 658 (Fla. 5th DCA 1997)

In Department of Education v. Atwater, et al. 417 So. 2d 749 (Fla. 1st DCA 1982), the claimant was offered another suitable position while she was working at a job for which the funding was about to run out. She declined the offer and her employment was subsequently terminated. The court held that her failure to accept suitable employment, even though she was working and not unemployed when it was offered, disqualified her from receiving benefits after she was laid off.

An individual will not be disqualified for refusing to accept employment if the job is open due to a labor dispute, if the wages, hours and working conditions are substantially less favorable than prevail in the locality for similar work or if union membership is a condition of the employment. F.S.441.101(2)(b)

B. Labor Disputes

A person is disqualified from receiving benefits if he or she is unemployed due to participating in a labor dispute, " ... in active progress which exists at the factory, establishment, or other premises, at which he or she is or was last employed ..." F.S.443.101(4). There are exceptions to this disqualification. An individual is not disqualified if he or she s not participating in or financing the labor dispute or directly interested in the dispute or is not a member of the class of employees participating in the dispute. Additionally, an individual is not disqualified where his or her unemployment results from a lockout by the employer, unless the lockout is in response to threats of damage from employees. F.S.443.101(4)(a)

In Continental Baking Company v. Vilchez, et al, 219 So. 2d 733 (Fla. 2nd DCA 1969), employees who were told by their employer to stay home during a strike called by a different category of employees, were allowed to receive benefits. The court focused on the facts that the employees did not stand to gain from the strike, nor had they honored the picket line of the striking employees. In fact they had attempted to come to work.

An employee was not disqualified when he refused to cross a picket line placed at his construction job site by a union to which he did not belong. The picket line was withdrawn from the claimant's job site, but it was maintained at all of the employer's other construction job sites. The court held that the labor dispute was not at the claimant's job site, as there was no functional and managerial synchronization among the employer's different construction sites, nor were they inter-dependant George Hunt Construction Company v State of Florida, 271 So. 2d 19 (Fla. 2nd DCA 1972)

The question sometimes arises whether non-strikers affected by a strike or lockout are disqualified as participants in a labor dispute. In Olusczak v. Florida Industrial Commission, ET al., 230 So. 2d 31,33 (Fla. 4th DCA 1970 the court found that, "The decisions hold that the employee is directly interested in the labor dispute within the disqualifying provision of the law if his wages, hours or working conditions will be affected favorably or adversely by the outcome." This reasoning was followed in Green, et al. v. Eastern Airlines, 565 So. 2d 811 (Fla. 3rd DCA 1990) in which flight attendants, who were out on a sympathy strike in support of the machinists when Eastern filed for bankruptcy, were denied benefits. The court disagreed with the argument of the flight attendants, that after the bankruptcy filing their unemployment was no longer due to a labor dispute. The court also held that when the issue arises as to whether there is a labor dispute, the employee has the burden of proving that he or she is exempt from the disqualification.

Not every disagreement between employer and employee is a labor dispute. In Perez, supra, 377 So. 2d at p. 808, it was held that a dispute between one employee and an employer is not a labor dispute within the meaning of the stature.

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