In Florida, under the unemployment compensation statute, “misconduct” includes:
(a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee. Such conduct may include, but is not limited to, willful damage to an employer’s property that results in damage of more than $50, or theft of employer property or property of a customer or invitee of the employer.
(b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
(c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
(d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.
(e)1. A violation of an employer’s rule, unless the claimant can demonstrate that:
a. He or she did not know, and could not reasonably know, of the rule’s requirements;
b. The rule is not lawful or not reasonably related to the job environment and performance; or
c. The rule is not fairly or consistently enforced.
2. Such conduct may include, but is not limited to, committing criminal assault or battery on another employee, or on a customer or invitee of the employer or committing abuse or neglect of a patient, resident, disabled person, elderly person, or child in her or his professional care.
Often times, Florida employers will rely on section “E” above, regarding a violation of an employer’s rule. If the employer’s evidence demonstrates that the claimant violated the employer’s rules, the claimant must establish one of the affirmative defenses to avoid disqualification.
The Reemployment Assistance program provides temporary, partial wage replacement benefits to qualified workers who are unemployed through no fault of their own. It is funded solely by employers who pay federal and state payroll taxes and is provided at no cost to the workers who receive the benefits.
How Florida businesses get sued for discrimination because of Unemployment Compensation mistakes.
Many times, Florida employers respond to Notice of Reemployment Assistance Claim as if they were defending themselves in a lawsuit. However, it may not always be wise to do this.
Why? Many lawyers who represent employees report that it is a bad idea for employers to dispute or “take away” an employee’s benefits after they fire a bad employee. Even if you had adequate grounds to terminate the employee, it often drives an employee over the edge if the employer tries to “take away” his unemployment benefits. Lawyers who sue employers explain that it is a “bad idea” for Florida employers to do this because it gets the employee emotionally invested in a lawsuit. The employee may now feel justified in finding a lawyer to call an attorney and sue the employer in order to recover monetary compensation for how their employment ended.
How it all begins:
Florida companies are often alerted to an unemployment compensation claim when they receive a Notice of Reemployment Assistance Claim. This notice is sent to the employer when a claim is filed by an employee and it is reported that your organization employed the claimant within the last 18 months. Florida employers who receive this form are required to respond within 20 days otherwise the business will not be eligible for relief from benefit charges.
Employers often attempt to take the position that it terminated the employee for “misconduct.” What is important to remember is that what may amount to “misconduct” to the average person, may not qualify as “misconduct” under Florida’s unemployment compensation law, specifically, Section 443.036(29), Florida Statutes. If an employer can prove the conduct was “misconduct” under the unemployment compensation law, that will result in the claimant’s disqualification from receipt of benefits.
It is common for an employer in Florida to terminate an employee for misconduct, and then try and block that employee from receiving unemployment compensation, which is now called Reemployment Assistance Benefits. Florida’s unemployment compensation (Reemployment Assistance) program provides temporary, partial wage replacement benefits to qualified workers who are unemployed through no fault of their own. It is funded solely by employers who pay federal and state payroll taxes and is provided at no cost to the workers who receive the benefits.
There are certain times that a Florida employer can prevent an employee from receiving such benefits, but it may not make business sense to pursue this.
An additional reason that I have witnesses is from an evidentiary perspective. When an employer fights an employee’s claim of unemployment benefits in Florida, it usually results in an unemployment appeal hearing. Florida employers almost always attempt to handle these on their own, rather than hiring an attorney to assist. This means that the employer provides damaging evidence during these hearings. Often times, just the company president, or maybe an HR professional will handle the unemployment appeal hearing for the employer and will present documents and testimony in an attempt to prove “misconduct.” This often results in the employer introducing evidence that can be later used by the employee against the employer. As an example, the employer may present testimony from a manager who says that the employee was fired because they were too old to do the work, or because they had too much absenteeism, when those absences were protected by law under the FMLA. This evidence can be used by a plaintiff’s lawyer to sue the Florida employer, and they can use that evidence to demonstrate things such as discrimination or retaliation.
All of a sudden this went from the HR professional saving the employer a few bucks in increased reemployment tax, to spending tens of thousands of dollars to defense a discrimination or retaliation lawsuit.
It may help if the HR professional and business owner considers things from the employee’s perspective. They just got fired. They are feeling pretty bad. Nobody likes to get fired. Even if they deserved it, it is humiliating and embarrassing. While they are out of work, unable to afford things that they are used to buying, they receive notification from the State of Florida that their Reemployment Assistance Benefits have been denied. They look at why they were denied, and realize that the employer challenged their “right” to these benefits. Imagine how this former employee feels. He feels like he just got the few hundred dollars he was counting on, ripped from his wallet. He feels like he has no choice. He begins calling lawyers to see what options he has. The lawyer asks him questions about the end of his employment, requests the transcript from the unemployment appeals hearing and listens to the evidence that kills the employer. He finds a smoking gun. Evidence that the lawyer can use as “direct evidence of discrimination.” All of a sudden the lawyer is very excited about this case because the lawyer knows that the employee has a solid case, that will be expensive to defend, and likely will result in tens of thousands of dollars to settle. The lawyer will probably take a hefty portion of the settlement, probably 30-40%.
Every time that an employer gives an employee no choice other than to call an attorney is a bad idea. Plaintiff’s lawyers characterize this as vindictive, counter-productive, and likely to backfire on the employer.
Therefore, it can be wise for a Florida employer to discuss its various options with an experienced labor and employment counsel before responding to Notice of Reemployment Assistance Claim.
If you need assistance in such a situation, contact the Law Office of David Miklas, P.A. by email or call us at 1-772-465-5111.
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