PURSUING AN UNEMPLOYMENT BENEFITS CLAIM IN FLORIDAHon. Alan Orantes Forst*∗Chairman (2001-Present)Unemployment Appeals Commission of the State of Florida On the final day of the 2011 Legislative Session, the legislature passed a bill “to beentitled an act relating to unemployment compensation.” This bill was signed into law byGovernor Scott on June 27, 2011. This legislation makes a number of major changes to theFlorida Unemployment Compensation Program. First, the legislation reduces the maximumnumber of available weeks of regular unemployment benefits from 26 to 23 and also reduces thisto as low as 12 weeks, depending upon the state’s average unemployment rate. As far as the substantive provisions of the statute, the statutory amendments remove theprovision stating that the statute shall be liberally construed in favor of the claimant andbroadens the definition of “misconduct, stating that the action(s) leading to the discharge neednot have occurred at the workplace or during working hours. Additionally, provisions have beenadded to the definitions, so that the following would establish disqualifying misconduct: Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one of more unapproved absences following a written reprimand or warning relating to more than one unapproved absence; 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; and “a violation of an employer’s rule, unless the claimant can demonstrate that: 1. He or she did not know, and could not reasonably know, of the rule’s requirements; 2. The rule is not lawful or not reasonably related to the job environment and performance; or 3. The rule is not fairly or consistently enforced.” Arguably, the most far-reaching change to the statute relates to the requirement that aclaimant’s eligibility for unemployment benefits entails his/her being able and available forwork. The statute, as of August 1, requires claimants to register with the Agency, participate in∗ Alan Orantes Forst was first appointed Chairman of the Unemployment Appeals Commission by Governor JebBush in June 2001. He was reappointed by Governor Bush in June 2005 and he was appointed to a third term byGovernor Crist in June 2009 and was confirmed by the Florida Senate on April 27, 2010 for a term ending onJune 30, 2013. Hence, he is “honorable.” He is a former President of the Martin County Bar Association and aformer Chair of the Florida Bar’s Labor and Employment Law Section (2008-09). He is also the Grand HighExalted Mystic Ruler of the Florida Federalist Society. Hence, he is “busy” (in an “honorable” fashion, of course).
“an initial skills review,” and they must make weekly reports of the prospective employerscontacted, with the minimum number of weekly contracts required being raised from two to five,although an alternative of reporting to a one-stop career center is offered. Prior to the statutory changes, a claimant could receive benefits even though he/she wasreceiving severance payments from a former employer. Per the revised statute, a claimant willbe disqualified based on the receipt of severance pay, as follows: “The number of weeks that anindividual’s severance pay disqualifies the individual is equal to the amount of the severance paydivided by that individual’s average weekly wage received from the employer that paid theseverance pay, rounded down to the nearest whole number, beginning with the week theindividual is separated from employment.” As detailed below, many employers are unable to establish misconduct due to thecompetence of the evidence submitted at the hearing. Effective for hearings held on or afterAugust 1, hearsay evidence “may support a finding of fact if (I) The party against whom it isoffered has a reasonable opportunity to review such evidence prior to the hearing; and (II) The[hearing officer] determines, after considering all relevant facts and circumstances, that theevidence is trustworthy and probative and that the interests of justice are best served by itsadmission into evidence.” Obviously, the case law discussed in this material is based on Court and Commissiondecisions pursuant to the unemployment benefits statute prior to the 2011 amendments.
I. UNEMPLOYMENT COMPENSATION OVERVIEW A. Statutory Authority. The Florida Unemployment Compensation Programadministration and services are authorized under Chapter 443, Florida Statutes and the U.S.Social Security Act of 1935. B. Program Purpose. The purpose of the Unemployment Compensation Program isto provide temporary income payments to make up a part of the wages lost to workers who losetheir jobs through no fault of their own, and are available for work, in order to expedite theirreemployment while providing a fair, equitable and cost-effective unemployment compensationsystem for the employers of Florida. C. Program Summary. The Florida Unemployment Compensation Program wasestablished in 1937 as a result of the Great Depression of the 1930s and high level ofunemployment experienced during this era. The program operates as part of a joint federal-statesystem created by the U.S. Social Security Act of 1935. While federal law establishes specificrequirements under which states must comply, each state may decide eligibility requirements forawarding benefits, disqualifications, manner in which claims are processed and appealed, andestablished the amount and collection methodology of taxes levied on employers. D. The Florida UC Process. An individual files a claim with the State of Floridafor unemployment benefits. This individual is now a “claimant.” Not necessarily a successfulclaimant. Generally, he/she is a Florida resident and/or earned wages from a Florida employer atsome point during the “base period” preceding his/her “benefit year.” The “benefit year”commences with the filing of the claim. The “base period” is the first four of the last fivecompleted calendar quarters immediately preceding the first day of the benefit year. So, if theclaim is filed any time between January 1 and March 30, 2008, the base period would encompassOctober 1, 2006-September 30, 2007. Since that isn’t complicated enough, the statute moreoverstipulates that, to qualify for unemployment compensation benefits, the claimant must have baseperiod wages for insured work in two or more calendar quarters of the base period; and total baseperiod wages equaling at least 1.5 times the wages paid during the high quarter of the baseperiod, but not less than $3400. The “high quarter” is the calendar quarter in which the mostwages were paid. After making some inquiries to both the claimant and the employer(s), an Agency forWorkforce Innovation (AWI) claims examiner issues a decision, either granting benefits to theclaimant or denying them. In some cases, the Agency may grant benefits to the claimant without“charging” the employer (such as where the employer is exempt from the statute). The non-prevailing party, either the claimant or the employer, can appeal this decision to AWI’s Office ofAppeals and request a hearing. This hearing will be conducted (almost always telephonically) byan appeals referee. Following the hearing, a referee’s decision will be issued. This decision isalso appealable, to the Unemployment Appeals Commission (UAC) by either the non-prevailingparty or by AWI. The Commission, in turn, will review the entire record, including the hearingrecording, and issue a final order. The non-prevailing party can seek review of theCommission’s order in the appropriate District Court of Appeals. At this point, the UACbecomes one of the appellees and will generally defend its decision in court. In recent years,
there have been few reversals of Commission decisions, making the Commission the Stalag 13of Florida Agencies (oh no, you didn’t just make a Hogan’s Heroes reference!). E. Attorneys’ Fees and Claimant Costs. Section 443.041, Florida Statutes,provides that a representative for any individual claiming benefits in any proceeding before theCommission shall not receive a fee for such services unless the amount of the fee is approved bythe Commission. The Commission requires a claimant’s representative to provide the amount, ifany, the claimant has agreed to pay for services, the hourly rate charged or other method used tocompute the proposed fee, and the nature and extent of the services rendered. In examining thereasonableness of the fee, the Commission is cognizant that: (1) in the event a claimant prevailsat the Commission level, the law contains no provision for the award of a representative’s fees tothe claimant’s representative, by either the opposing party or the State (i.e. a claimant must payhis or her own representative’s fee); and (2) the amount of unemployment benefits secured by aclaimant may be very small. The legislature specifically gave referees (with respect to the initialappeal) and the Commission (with respect to the higher level review) the power to review andapprove a representative’s fees due to a concern that claimants could end up spending more onfees than they could reasonably expect to receive in unemployment compensation benefits. In Florida Industrial Commission v. Ciarlante, 89 So.2d 3 (Fla. 1956), the FloridaSupreme Court awarded attorneys fees to counsel for the appellee claimant. The appeal hadbeen filed in the Florida Supreme Court by the Florida Industrial Commission to review adecision of the circuit court that was favorable to the claimant. Since the appeal was filed by aparty other than the claimant, the claimant was entitled to a fee award under the law existing atthat time regardless of the outcome of the appeal. Section 443.041(2)(b), F.S., currentlyauthorizes a district court of appeal to award attorneys fees to a claimant if the courts decisionresults in the claimant receiving more benefits than provided in the decision from which theappeal was taken. This section also provides that the amount of the fee may not exceed 50% ofthe total amount of the regular benefits permitted under s. 443.111(5)(a), F.S., during theclaimants benefit year. Since the maximum amount of such benefits it $7,150, the maximum feethat the district court may award a claimant is $3,575. Section 443.041(2)(b), Florida Statutesmakes no mention of court costs, and s. 443.041(2)(c), F.S., prohibits AWI from paying any feesor costs not authorized by this statute. Section 443.041(2)(c), F.S., mandates that AWI pay theattorney fees from the Employment Security Administration Trust Fund. In Gretz v. Florida Unemployment Appeals Commission, 572 So.2d 1384 (Fla. 1991), theFlorida Supreme Court held that the Unemployment Appeals Commission must preparetranscripts for claimants free of charge. Section 120.57(1)(b)7, Florida Statutes, requires theUAC to provide the transcripts and Section 443.041(2)(a), Florida Statutes, prohibits thecommission from charging claimants a fee of any kind.
II. MAJOR UC PRINCIPLES OF LAW AND CASE PRECEDENT∗∗ One of the initial issues to be addressed when an individual files a claim forunemployment is whether the individual was unemployed during the week(s) for which benefitswere claimed (benefits are not payable for weeks for which no claim was made; thus, a claimantwho delays filing his/her claim cannot collect benefits for any period of unemployment beyondthe two most recent weeks prior to the date of the claim). The courts have determined that theclaimant bears the burden of proving that he/she was “unemployed.” Lewis v. Lakeland HealthCare Center, Inc., 685 So. 2d 876 (Fla. 2d DCA 1996); Florida Indus. Commn v. Ciarlante, 84So.2d 1 (Fla. 1955); Newkirk v. Florida Indus. Commn, 142 So. 2d 750 (Fla. 2d DCA 1962).Once that is established, the burden shifts to the employer to prove that the claimant wasdischarged for “misconduct connected with work.” Alternatively, the employer can assert anaffirmative defense that the claimant voluntarily quit. The employer has the initial burden toestablish that the employee voluntarily left the employment. Lewis at 878. If the refereedetermines that the claimant was discharged, the burden is placed on the employer to establishthat the discharge was due to “misconduct connected with work.” If the referee determines thatthe employer met its burden of establishing that the claimant quit, then the burden shifts to theclaimant to prove that he or she left the employment for “good cause.” A claimant who is otherwise eligible will not be disqualified from benefits unless he/sheis fired for “misconduct connected with work” or quits his/her job without “good cause.” Theclaimant may also be disqualified if he/she refuses a suitable offer of employment without goodcause or if, during a period of unemployment, he/she is not “able and available” for work (theclaimant must be able to work and looking for work for which he/she is qualified and capable ofperforming). A “base period” employer’s unemployment account will be “charged” if it fires anemployee for reasons other than “misconduct connected with work” or the employee quits withgood cause attributable to the employer. The account will generally not be charged if theemployee leaves with good cause (as defined by the statute) that is not attributable to theemployer or if the employee is fired due to poor performance during an initial 90 dayprobationary period. A. ELIGIBILITY An eligible claimant must have been an “employee,” not an “independent contractor,”earned more than $3,400 during his base period, and is either not currently earning more than theamount of benefits for which he is qualified to receive or, if totally unemployed, must be ableand available for work and making reasonable efforts to seek employment. Furthermore, aclaimant can be disqualified from the receipt of benefits if he/she, without good cause, fails toaccept an offer of suitable employment. “Good cause” for rejecting an offer of suitable workmay be good personal cause (as distinct from the “good cause” required for quitting a job).∗∗ Earlier Drafts of this material relied in part on Kulzik, Raymond S. Florida Unemployment Compensation Tax:Who Must Report Wages and Pay UC Taxes? Kulzick Associates, PA, 1999; Spero, Donald J. UnemploymentCompensation in Florida: Coverage and Eleigibility. Florida Mediation Group, Inc, Inc., 2001.
B. MISCONDUCT Prior to the 2011 amendments, Section 443.036, F.S. stated that "Misconduct" includes,but is not limited to, the following, which may not be construed in pari materia with each other: (a) Conduct demonstrating willful or wanton disregard of an employers interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or (b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employers interests or of the employees duties and obligations to his or her employer. A. For separations after June 27, 2011, The Unemployment Compensation Law ofFlorida states that “misconduct, irrespective of whether the misconduct occurs at the workplaceor during working hours, includes, but is not limited to, the following, which may not beconstrued in pari materia with each other”: (a) Conduct demonstrating conscious disregard of an employers 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 (b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employers interests or of the employees 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) A violation of an employers rule, unless the claimant can demonstrate that:
1. He or she did not know, and could not reasonably know, of the rules requirements; 2. The rule is not lawful or not reasonably related to the job environment and performance; or 3. The rule is not fairly or consistently enforced.Section 443.036(31), Florida Statutes. An additional provision relating to “misconduct” wasadded to the statute in Section 443.101(9): [I]t is misconduct when a claimant is terminated for violation of any criminal law, under any jurisdiction when the violation was in connection with the claimants work and the individual was convicted, or entered a plea of guilty or nolo contendre. The claimant will also be disqualified before the plea or conviction occurs if the employer provides competent, substantial evidence to show the agency that the arrest was due to a crime against the employer, the employers business, customer, or invitees. Under either statute, when contesting a claimant’s right to receive benefits on the basisof misconduct, the employer must prove both that the act or acts were committed and that theactions of the claimant then fulfills the statutory definition of misconduct. Florida courts haveheld that mere inefficiency, unsatisfactory conduct, failure in good performance as the result ofinability or incapacity, inadvertence or ordinary negligence in isolated instances, or good faitherrors in judgment or discretion are not to be deemed misconduct connected with work.Hammett v. Florida Department of Commerce, 352 So.2d 948 (Fla. 2d DCA 1977); Fredericksv. Florida Department of Commerce, 323 So.2d 286 (Fla. 2d DCA 1975); Spaulding v. FloridaIndustrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963). In cases that involve allegations of misconduct, the question is not whether the employeris justified in discharging the employee, but whether the conduct amounted to misconduct asdefined in the Statute. The Florida Supreme Court has held that “In defining misconduct, courtsare required to liberally construe the statute in favor of the claimant.” Mason v. Load King Mfg.Co., 758 So.2d 649 (Fla. 2000). However, that statement tracked the statute prior to the 2011amendments. Section 443.031 stated that: This chapter shall be liberally construed in favor of a claimant of unemployment benefits who is unemployed through no fault of his or her own. Any doubt as to the proper construction of this chapter shall be resolved in favor of conformity with federal law, including, but not limited to, the Federal Unemployment Tax Act, the Social Security Act, the Wagner-Peyser Act, and the Workforce Investment Act. Following the 2011 amendments, the “Rule of liberal construction” now provides: This chapter shall be liberally construed to accomplish its
purpose to promote employment security by increasing opportunities for reemployment and to provide, through the accumulation of reserves, for the payment of compensation to individuals with respect to their unemployment. The Legislature hereby declares its intention to provide for carrying out the purposes of this chapter in cooperation with the appropriate agencies of other states and of the Federal Government as part of a nationwide employment security program, and particularly to provide for meeting the 104 requirements of Title III, the requirements of the Federal Unemployment Tax Act, and the Wagner-Peyser Act of June 6, 1933, entitled "An Act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system, and for other purposes," each as amended, in order to secure for this state and its citizens the grants and privileges available under such acts. All doubts as to the proper construction of any provision of this chapter shall be resolved in favor of conformity with such requirements. Historically, the courts have not been reluctant to reverse the Commission in cases wherethe court determines that the claimant’s actions may have justified the employer’s termination ofthe claimant’s employment, but did not amount to misconduct sufficient to deny unemploymentbenefits. See, e.g. McCarty v. Fla. Unemployment Appeals Commission, 878 So.2d 432 (Fla.1st DCA 2004); Lucido v. Unemployment Appeals Commission, 862 So.2d 913 (Fla. 4th DCA2003); Spink v. Unemployment Appeals Commission, 798 So.2d 899 (Fla. 5th DCA 2001). Seealso Stringfellow v. Fla. Unemployment Appeals Commission, 920 So.2d 723 (Fla. 1st DCA2006) (“[b]ecause there [was] no showing in the record that claimant repeatedly violated explicitpolicies after several warnings,” the court found that the claimant’s violation of the employer’spolicies without warning did not constitute disqualifying misconduct); Rosas v. RemingtonHospitality, Inc., 899 So.2d 390 (Fla. 3d DCA 2005) (holding an isolated incident, such as aclaimant’s failure to follow policies and rules, is not generally considered disqualifyingmisconduct). A review of court cases illustrates that there is a narrow line between disqualifyingbehavior, such as insubordination, and nondisqualifying “poor judgment.” In addressing adischarge case, the adjudicator must examine the claimant’s work history, disciplinary recordand the incidents at issue. In Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla. 2000), the Florida Supreme Courtexercised its discretionary review jurisdiction to resolve conflict between Mason v. Load KingMfg. Co., 715 So.2d 279 (Fla. 1st DCA 1998) and Blumetti v. Unemployment AppealsCommission, 675 So.2d 689 (Fla. 5th DCA 1996). Blumetti involved a worker who was warnedof excessive tardiness. Since the worker had good excuses for the last two incidents and was notdischarged because of the earlier incidents, the court reasoned he should not be disqualified forbenefits. Citing Tallahassee Housing Authority v. Unemployment Appeals Commission, 483So.2d 413 (Fla. 1986), Mason criticized the reasoning in Blumetti and affirmed the
Commissions disqualification of the claimant. The Supreme Court held that, to the extent thatBlumetti required a finding that the last offense precipitating the discharge was inexcusable inorder to find misconduct, it was wrong and disapproved it. Mason was approved. 1. Isolated incident of poor judgment. Spaulding v. Florida Industrial Commission,154 So.2d 334 (Fla. 3d DCA 1963), involved a supermarket cashier who was discharged forfailure to properly ring up an "exact amount" purchase left by a customer while the claimant waschecking out another customer. The cashiers act violated a rule of the employer, but the ThirdDistrict Court of Appeal held that her violation merely demonstrated "inadvertence, ordinarynegligence or poor judgment and inattention," but did not constitute "misconduct" within themeaning of the statute. 154 So.2d at 339. Similarly, in Hernandez v. American GeneralFinance, 39 So.3d 476 (Fla. 3d DCA 2010), the court found there was poor judgment but nomisconduct in a case involving an employee who admitted that in processing a $2,000 loan, shefailed to obtain proper authorization from the borrower. Anderson v. Florida Unemployment Appeals Commission, 517 So.2d 754 (Fla. 2d DCA1987, involved a claimant who was struck by a coworker during an altercation. In retaliation, theclaimant struck the coworker with a two by four piece of lumber. The appeals referee and theUAC held that the claimant was guilty of misconduct connected with work because he shouldhave retreated, instead of escalating the altercation. The court reversed and held in the claimantsfavor, stating that he was under no obligation to refrain from striking a retaliatory blow. Thecourt relied on Davis v. Unemployment Appeals Commission, 472 So.2d 800 (Fla. 3d DCA1985), to find that the claimants actions evinced poor judgment and inability to control himselfbut not misconduct connected with work. As noted above, isolated acts of “poor judgment” do not necessarily amount tomisconduct. In Gunther v. Barnett Banks, Inc., 598 So.2d 243 (Fla. 2d DCA 1992), a banksecurity officer completed a form indicating he had conducted a safety and security inspection ofa particular branch bank. Contrary to normal procedure, the officer had not personally visitedthe branch. The form was completed on the basis of information received by a telephone call.The court observed that the officer had not disobeyed a specific directive of the employer andconcluded that this was an isolated incident of poor judgment that did not amount to misconduct. Similarly, a single good faith mistake will not qualify as misconduct. In Miller v. BarnettBank of Broward County, 650 So.2d 1089 (Fla. 3d DCA 1995), involved a bank branch managerwho released funds on a large deposit which had not cleared. It was later discovered that thedeposit consisted of stolen instruments. The error caused the bank to suffer a huge monetaryloss. The court reversed the agencys determination that the managers error was misconduct.The court characterized it as a good faith error in judgment that did not rise to the level ofmisconduct. However, in C. F. Industries, Inc. v. Long, 364 So.2d 864 (Fla. 2d DCA 1978), theappeals referee found that the employer failed to prove the claimant committed the last offensefor which he was charged, but accumulation of offenses during the course of his employmentamounted to misconduct. The UAC reversed. The court reversed the UAC. It held that theappeals referees decision was supported by competent substantial evidence and was improperlyrejected by the UAC.
In Parker v. Department of Labor and Employment Security, 440 So.2d 438 (Fla. 1stDCA 1983), an employee was discharged for missing 26 days of work while incarcerated. Therecord contained no evidence that the employee was guilty of the charges which were eventuallydropped. The court stated: There will undoubtedly be circumstances where an employees pre- trial incarceration may reach the point where he ought to be considered as having abandoned his employment. The court observed that the employees absence was not literally voluntary and volition could not be inferred from any culpability on the part of the employee. The court concluded that the voluntarily leaving provision could not be applied and, in the absence of culpability, the misconduct provision was also inapplicable. Courts have also considered intent when deciding whether a claimant’s action amounts tomisconduct. Proffitt v. Unemployment Appeals Commission, 658 So.2d 185 (Fla. 5th DCA1995), involved a supermarket cashier who was discharged when the employer learned she hadprovided false information on her employment application. When she completed the application,the employee answered "no" to the question, "Have you ever been convicted of a felony? Sixyears earlier she had pled guilty to a second degree grand theft charge in connection with a badcheck she had written. As a result of the plea, the circuit court withheld adjudication and placedthe employee on probation for two years and imposed a $15 fine. The circuit court judge advisedthe employee that she could respond in the negative to the question whether she had ever beenconvicted of a felony because adjudication had been withheld. When the employee applied forunemployment benefits, they were denied on the grounds that she had been discharged fromemployment for misconduct connected with work because she falsified her employmentapplication. The district court of appeal reversed. The court pointed out that a degree ofconfusion exists as to whether a person whose adjudication of guilt has been withheld hasactually been convicted of the crime charged. Because of this ambiguity, the court held that theemployees response to the question could not be considered misconduct. 2. Abusive Language. In Benitez v. Girlfriday, Inc., 609 So.2d 665 (Fla. 3d DCA1992), an employee used profane and abusive language during a telephone conversation with asupervisor. The court held that the ensuing discharge was not for misconduct because theconversation was an isolated incident and was kept private: 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.
In late 2007, the Commission dealt with two “abusive language” discharge cases. InUAC Order No. 07-09003, the Commission affirmed the referee’s decision that the claimant wasdischarged for reasons other than misconduct. The claimant in that case referred to a manager asa “fucking Jew bastard.” The Commission characterized this as an isolated instance of poorjudgment, noting the lack of prior disciplinary action against the claimant, noting that thecomment was directed to a supervisor outside the presence of other persons, and the claimantacknowledged that he “said some things he should not have said,” and he apologized for hisoutburst. In contrast, in UAC Order No. 07-07846, the Commission reached a differentconclusion, affirming a referee’s disqualification of a claimant who was discharged due to anincident where she referred to a co-worker as a ‘nasty nigger-lover.’” The Commission notedthat the claimant in that case did not apologize and, per the referee’s credibility determination,lied about what had been said (she claimed that she called the co-worker a “gigger-lover”). Theclaimant found entitled to benefits “apologized for his bigoted remark.” The claimant found tobe disqualified “refused to acknowledge what had been said and made up an excuse that thereferee found to be a lie, thus adding dishonesty and lack of contrition to what had been anisolated use of obscene language.” In a more recent case, the claimant got into an argument with a payroll administratorabout issuing his payroll check. The claimant said “f*ck this” and “why do I get this sh*t fromyou”. During the argument the claimant stated to the payroll administrator “don’t be a f*ckingb*tch.” The Commission found that the claimant was discharged for reasons other thanmisconduct, noting the claimant was never given any warnings for using profanity in the past;profanity was not uncommon among workers; the claimant’s statements were made in a privatearea and not in the presence of customers; and the claimant used the profanity when talking tothe payroll clerk and not a superior--therefore, insubordination was not an issue. TheCommission also made reference to the context of the profanity. In this case, the Commissionnoted that “the claimant was essentially venting his frustration and using ‘four letter words’ tosay ‘why are you picking on me?’ and ‘don’t be a mean lady’ and ‘this seems uncalled for.’”The Commission concluded that the claimant’s behavior “is less egregious than a claimantthreatening a co-worker or making a personal attack, such as impugning a co-worker’s religion,sex, race, ethnicity, weight, appearance, etc. ,” and found that the claimant’s actions did not riseto the level of disqualifying misconduct. 3. Dishonesty. “If the Agency for Workforce Innovation or the Unemployment AppealsCommission finds that the individual was terminated from work for any dishonest act inconnection with his or her work, the individual is not entitled to unemployment benefits . . . .”§ 443.101(9)(b), Florida Statutes. An isolated instance of poor judgment may be a sufficientreason for an employer to discharge an employee; however, it will not generally constitutedisqualifying misconduct under the unemployment compensation law. See Stringfellow v. Fla.Unemployment Appeals Commission, 920 So.2d 723 (Fla. 1st DCA 2006). An isolated act ofdishonesty, however, can be sufficient to constitute disqualifying misconduct. See Sauerland v.Fla. Unemployment Appeals Commission, 923 So.2d 1240 (Fla. 1st DCA 2006) (holding theclaimant’s falsification of time log records to constitute disqualifying misconduct); Brooks v.Unemployment Appeals Commission, 695 So.2d 879, 881 (Fla. 5th DCA 1997) (the claimantknew or should have known that altering his attendance records to show that he was at work
when he had not been was a violation of his duties and obligations); Johnson v. UnemploymentAppeals Commission, 680 So.2d 1073, 1073 (Fla. 5th DCA 1996) (“dishonesty is and should begrounds for . . . denial of benefits”). In Fink v. Florida Unemployment Appeals Commission, 665 So.2d 373 (Fla. 4th DCA1996), a sales associate for a home improvement store was discharged for violating the storespolicy prohibiting conflicts of interests. The policy prohibited employees from doing work forcustomers using the employers products. The claimant maintained a side business doingelectrical work. On several occasions, he suggested to his clients that they purchase theirelectrical supplies at the employers store. Afterward, the claimant would perform the work onthe side. The appeals referee and the Unemployment Appeals Commission held that theclaimant has willfully violated the employers policy and his actions amounted to misconductconnected with work. Citing Brown v. Unemployment Appeals Commission, 633 So.2d 36 (Fla.5th DCA 1994), review denied, 642 So.2d 1362 (Fla. 1994), for the principle that anadministrative agencys action should be sustained on appeal if based upon an acceptable view ofthe evidence, the court affirmed. 4. Insubordination. The Courts have held that an employee’s obdurate or belligerentrefusal to comply with a valid work order amounts to misconduct sufficient to denyunemployment benefits. See, e.g. Hinson Electrical v. Unemployment Appeals Commission,914 So.2d 1033 (Fla. 1st DCA 2005); Givens v. Florida Unemployment Appeals Commission,888 So.2d 169 (Fla. 3d DCA 2004); Boyd v. Ikon Office Solutions, Inc., 743 So.2d 1152 (Fla. 3dDCA 1999); Hines v. Department of Labor and Employment Security, 455 So.2d 1104 (Fla. 3dDCA 1984); Citrus Central v. Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979). See also Evans v.Unemployment Appeals Commission, 903 So.2d 298 (Fla. 3d DCA 2005)(holding that aclaimant’s intentional violation of a direct order from the employer, without good cause,amounted to disqualifying misconduct); Peaden v. Unemployment Appeals Commission, 865So.2d 690 (Fla. 5th DCA 2004) (holding vulgarity directed at a supervisor, in the presence ofother employees, is akin to “mutiny on the high seas,” and sufficient to constitute misconduct). In Moffat v. Florida Unemployment Appeals Commission, 33 So.3d 694 (Fla. 1st DCA2010), the claimant was a golf professional who was discharged for insubordination amountingto misconduct because he repeatedly failed to give receipts to golfers after being directed to doso. The court affirmed the Commission’s disqualification of the claimant, holding that his failureto comply with the order to ensure that all golfers were given a register receipt demonstrated awillful disregard of his employers interest to track its golfers. In Jones v. Florida Unemployment Appeals Commission, 36 So.3d 808 (Fla. 1st DCA2010), the claimant made a leave request. This request was denied by the employer. Theclaimant nonetheless took several days off and, as a result, was discharged by the employer. Thecourt affirmed the Commission’s disqualification of the claimant, finding insubordination. In Clay County Sheriffs Office v. Loos, 570 So.2d 394 (Fla. 1st DCA 1990), a deputysheriff was discharged because he attended a radar training course in direct disobedience of anorder of his superior officer. The court held that the deputys disregard of the "chain ofcommand" amounted to misconduct connected with work.
In National Insurance Services, Inc. v. Unemployment Appeals Commission, 495 So.2d244 (Fla. 2d DCA 1986), two office employees were discharged for refusing to participate in anewly implemented procedure whereby each employee would take turns cleaning a small areaused for coffee breaks. The discharged employees did not use the facility and believed theyshould be exempted from the cleaning requirement. The Unemployment Appeals Commissionallowed benefits, but the court reversed, noting that the employers requirement was notunreasonable and the employees refusal was tantamount to insubordination amounting tomisconduct. Generally, refusal to perform a reasonable job duty constitutes insubordination, absent acompelling excuse. In Gulf County School Board v. Washington, 567 So.2d 420 (Fla. 1990), thecourt held that failure to obtain a certification necessary to continue in employment is notmisconduct if failure was due to inability, and not due to refusing to take the steps necessary toproperly prepare. Thus, the Commission has found no misconduct in cases where a teacher isfired after continued failure to pass a required professional exam. See, e.g., UAC Order No. 07-07999 (December 2007). The Commission has reviewed many appeals which involved a discharge based on aclaimant’s refusal to sign a warning notice. The Commission has acknowledged that this issuewas addressed by the court in Mompoint v. Ward Stone College, Inc., 701 So.2d 1267 (Fla. 3dDCA 1997). The court held a worker’s actions in merely refusing to sign a warning notice is notsufficiently egregious to fall within the definition of misconduct. See, e.g., UAC Order No. 06-09669 (March 2007) (absent evidence that the claimant refused to read the warning or wasotherwise insubordinate, refusal to sign the warning notice was not sufficiently egregious to fallwithin the definition of misconduct). In Carson v. Florida Unemployment Appeals Commission,1 So.3d 289 (Fla. 3d DCA 2009), the court found that it was not insubordination, but merely a“disagreement” when the claimant responded to poor performance review and placement on acorrective action plan, writing “I do not agree to abide by the this and signed under protest" nextto her signature. The court held that noting disagreement and asking for further review of animmediate supervisors assessment is not misconduct. In Vilar v. Unemployment Appeals Commission, 889 So.2d 933 (Fla. 2nd DCA 2004), thecourt reversed the Commission and held that although the employee was wrong to disobey hersupervisor’s instructions to return to her work area, this was an isolated instance of poorjudgment and does not constitute misconduct. On the other hand, only one week before theissuance of the Vilar decision, a panel of the Third DCA affirmed the Commission’sdisqualification of a claimant, noting that the claimant was discharged for misconduct “becausehe obdurately refused contrary to the direct orders of his supervisor, to operate a forklift.”Givens v. Unemployment Appeals Commission, 888 So.2d 169 (Fla. 3d DCA 2004). Thus, thereis clearly a narrow line between disqualifying insubordination and nondisqualifying “poorjudgment.” In 2005, the First DCA held that a claimant’s failure to report to work without good causeafter the employer expressly directed him to do so as a result of Hurricane Ivan constitutesmisconduct connected with work. Gulf Power Co. v. Unemployment Appeals Commission, 912So. 2d 1256 (Fla. 1st DCA 2005).
Also in 2005, IMO, the 3rd DCA missed the boat on an insubordination case. See Forte v.Florida Unemployment Appeals, 899 So. 2d 1159 (Fla. 3d DCA 2005). I wrote the followingopinion in the Commission’s Order setting aside its previous order: The court’s decision in this case reverses an order of the Commission, which in turn had affirmed a referee’s decision that the claimant was disqualified from the receipt of unemployment compensation benefits. The referee’s findings of fact, which were not rejected by the court, are as follows: The claimant was employed by a security company, as a security officer, on April 29, 1999. The claimant worked approximately forty (40) hours per week, on a varied schedule. The claimant was aware of the employer’s holiday attendance procedure and admitted reading it in the monthly newsletter put out by the employer. The claimant signed for and received a copy of the employer’s policies and procedures concerning taking time off during the holiday season. The claimant submitted a note to the employer on December 22, 2003, saying that she was going to be taking Christmas off and the day after. The claimant was informed that her request was denied. The claimant did not report to work as scheduled. The claimant was considered to have abandoned her job by not reporting to work during the holiday season, as required. Based on these findings, the referee concluded that the claimant voluntarily left her employment on December 22, 2003 without good cause attributable to the employer, as “she knew the holiday party and that her request for vacation was denied, but decided not to go in to work.” The Commission affirmed the referee’s disqualification of the claimant, though its opinion noted that “the evidence deemed credible by the appeals referee supports the conclusion that the claimant was discharged for misconduct connected with work.” In reversing the Commission and granting benefits to Ms. Forte, the court cites to Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla. 2000) for the proposition that “Although ‘excessive unauthorized absenteeism’ justifies the denial of benefits, a single absence does not.” The court concluded that Ms. Forte’s “one unauthorized absence” was “an isolated incident of poor judgment
which did not rise to the level of misconduct within the meaning ofthe law.” I believe that the court’s reliance on Mason ismisplaced. The Mason case dealt with an employee who wasdischarged based on a pattern of absences that the court deemed“excessive” and “unauthorized.” The instant case involvesinsubordination. The claimant requested leave for Christmas Dayand December 26. Her request was made after the leave policydeadline for such requests, and she was unable to secure areplacement to cover her shift. The employer informed her thatshe could not take those days off. The claimant responded byinforming the employer that she was going to spend time with herfamily on those days. The referee characterized the claimant’srefusal to work on those two days as a voluntary quit. TheCommission, perhaps mistakenly (upon reflection, the referee’sconclusion appears to be correct), characterized the claimant’srefusal as insubordination justifying discharge. The court’s decision implies that an employee who willfullyand wantonly disregards an express denial of a leave request isguilty of no more than “an isolated instance of poor judgment.”This conclusion is not only in conflict with common sense (anemployer cannot enforce its vacation or leave policy withouthaving its unemployment account charged), but it also conflictswith other DCA decisions, including decisions issued by the ThirdDCA. For example, last December a panel of the Third DCA(which included one of the judges who concurred in the Fortedecision) affirmed the Commission’s disqualification of a claimant,noting that the claimant was discharged for misconduct “becausehe obdurately refused contrary to the direct orders of hissupervisor, to operate a forklift.” Givens v. UnemploymentAppeals Commission, 888 So.2d 169 (Fla. 3d DCA 2004). Thiswas not the first instance of a DCA finding that a single incident ofrefusing to follow a reasonable work order amounts to misconduct.See e.g., Boyd v. Ikon Office Solutions, Inc., 743 So.2d 1152 (Fla.3d DCA 1999); Clay County Sheriffs Office v. Loos, 570 So.2d394 (Fla. 1st DCA 1990); Kraft, Incorporated v. UnemploymentAppeals Commission, 478 So.2d 1183 (Fla. 2d DCA 1985);National Insurance Services, Inc. v. Unemployment AppealsCommission, 495 So.2d 244 (Fla. 2d DCA 1986); Citrus Central v.Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979). There is a difference between an “unauthorized absence”and a refusal to report to work in contravention of an expressorder/denial of leave. The Commission will continue to recognizethis distinction.
On the other hand, the 4th DCA affirmed (by PCA) the Commission in an interesting casethat gained some attention on the internet. Littrell v. State Unemployment Appeals Commn, 916So. 2d 806 (Fla. 4th DCA 2005). The Commission’s Order in Littrell v. St. Lucie County SchoolBoard, UAC Order No. 04-11550 (2004) is as follows: The issue before the Commission is whether the claimant was suspended by the employer for misconduct connected with work as provided in Section 443.101(1), Florida Statutes. The referees findings of fact recite as follows: The claimant was employed with this school board as a teacher from 1990 through September 23, 2004, the date of the hearing. The claimant was warned in 2000 after allegations of handling a child physically and insubordination. On March 10, 2004, the principal received a complaint about an incident involving the claimant. On March 5, 2004, the claimant involved her ninth grade students in an assignment that she calls “keep your mind clean.” The claimant posed ten questions to her students verbally. The claimant intended to provide clues that could cause the students to first think of an answer that was not “clean,” and to give the students a “hint” that might lead them to another answer that was not “bad.” One question stated by the claimant to her students was, “what compound word starts with an ‘f’ and ends with ‘u-c-k’? Hint: you always envision red- “fire truck.” An investigation was conducted by the employer. The claimant was asked for a copy of the assignment while she was teaching class one day. The claimant submitted a written list of questions that were not written exactly as the claimant read them orally; the claimant did not give the assignment in written form. The investigation results included the fact that at least once the claimant had provided the students with the etiology of the word “shit” after one student used the word in class.” The claimant provided a report of the incident to the dean, who reported to the claimant that he believed that her actions were “a good idea.” The investigation included a sign by one of the students that was placed on the wall. The sign depicted an upright finger with the words “pluck ewe,” and statements pertaining to the etiology of that expression.
The employer considered these incidents a pattern of behavior in violation of the school board rules and principles of professional conduct, both of which the claimant was aware at the time of the final incident. The Principles include: “[s]eek to exercise the best professional judgement and integrity; [s]trive to achieve and sustain the highest degree of ethical conduct; [n]ot engage in harassment; [s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety; [s]hall not intentionally expose a student to unnecessary embarrassment or disparagement; [s]hall not harass or discriminate . . . ” For these reasons the claimant was suspended. Based upon the above findings, the referee held that theclaimant was suspended for reasons other than misconductconnected with work. Upon review of the record and thearguments on appeal, the Commission concludes that the refereesdecision is not in accord with the law; accordingly, it is reversed. Section 443.036(29), Florida Statutes, defines misconductconnected with work as: (a) Conduct demonstrating willful or wanton disregard of an employers interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or (b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employers interests or of the employees duties and obligations to his or her employer. The record reflects the claimant was suspended forengaging her ninth grade students in an exercise (the “tenquestions”) that involved offensive and sexually inappropriatematters. While some students may have found the exercise to havebeen entertaining and/or “clever,” the claimant’s responsibility asa ninth grade teacher includes being vigilant in not exposingstudents to unnecessary embarrassment. Moreover, portions of thesubject matter of the assignment were offensive and inappropriate
for the students to which it was administered and, as such, a form of harassment. In fact, if this were a male supervisor presenting this “exam” to female subordinates, an employer would be justified in fearing a sexual harassment lawsuit. One can rationalize that 14-year old kids are already being exposed to the words and concepts that were introduced by the assignment at issue, through shows such as “South Park” or “Howard Stern.” However, generally such shows advertise that they feature “adult content.” Moreover, a parent generally (or, at least ideally) has some control over whether or not to let his/her child watch/listen to such programs or to watch/listen to the show with the child and discuss it afterwards. In essence, the claimant’s “assignment” to her public school students usurped the parental responsibility to introduce/discuss subjects such as sexual intercourse, masturbation, and male sexual anatomy. The claimant should not have assumed that these were already familiar concepts for all of the children in her class and that none of the students (or their parents) would be uncomfortable with such a discussion. The claimant knew or should have known that exposing 14-year old children to this material, without prior consultation with the school’s administration, demonstrated a disregard of the standards of behavior which the employer has a right to expect of its employees, as this particular assignment had the potential to erode the trust that parents bestow upon public school teachers. Accordingly, the claimant’s lapse of judgment amounted to misconduct within the meaning of the unemployment compensation law. The claimant is disqualified for the duration of the suspension from work. 5. Drug Use. If an individual is discharged from employment for drug use as evidencedby a positive, confirmed drug test as provided in the Statute, or is rejected for offeredemployment because of a positive, confirmed drug test, test results and chain of custodydocumentation provided to the employer by a licensed and approved drug-testing laboratory willbe self-authenticating and admissible in unemployment compensation hearings, and suchevidence will create a rebuttable presumption that the individual used, or was using, controlledsubstances, subject to the following conditions: a. To qualify for the presumption described in this subsection, an employer must have implemented a drug-free workplace program under ss. 440.101 and 440.102, and must submit proof that the employer has qualified for the insurance discounts provided under s. 627.0915, as certified by the insurance carrier or self-insurance unit. In lieu thereof, an employer who does not fit
the definition of "employer" in s. 440.102 may qualify for the presumption provided that the employer is in compliance with equivalent or more stringent drug-testing standards established by federal law or regulation. b. Only laboratories licensed and approved as provided in s. 440.102(9), or as provided by equivalent or more stringent licensing requirements established by federal law or regulation may perform such tests. c. Disclosure of drug test results and other information pertaining to drug testing of individuals who claim or receive compensation under this chapter shall be governed by the provisions of s. 443.1715. SKF Management and Palace Management, Bueno Vista Palace Hotel v. UnemploymentAppeals Commission, 664 So.2d 345 (Fla. 5th DCA 1995), involved a claimant who wasdischarged from her job as a hotel room attendant for allegedly testing positive for use ofcocaine. The employer attempted to establish that it was entitled to the statutory presumption ofSection 443.101(11), Florida Statutes. If an employer is able to meet the requirements of thestatute, a rebuttable presumption is created that the discharged employee had used a controlledsubstance. Testing positive for use of a controlled substance may constitute misconductconnected with work. See Ford v. Southeast Atlantic Corporation, 588 So.2d 1039 (Fla. 1stDCA 1991). The UAC and the court agreed that the employer failed to meet two of therequirements of the statute. It failed to prove that it had a drug-free workplace program thatqualified it for insurance discounts under Section 627.0915, Florida Statutes. It also failed toprove that the laboratory which performed the testing of the claimants specimen was licensedand approved as provided in Section 440.102(9), Florida Statutes. The court sustained thedecision of the appeals referee and the UAC that the claimant had been discharged fromemployment under nondisqualifying conditions. AAA Gold Coast Moving and Storage, Inc. v. Weiss, 654 So.2d 281 (Fla. 4th DCA1995): Approximately one and one half years after the claimant began employment, theemployer implemented a random drug testing program. The claimant refused to submit t beingtested and was terminated. The court sustained the finding of the appeals referee and thecommission that the claimants refusal did not constitute misconduct. The court distinguishedFowler v. Unemployment Appeals Commission, 537 So.2d 162 (Fla. 5th DCA 1989), becausethe employer in the case before it, unlike the employer in Fowler, did not have a reasonablesuspicion that the employee refusing the test had abused drugs. 6. Excessive Absenteeism and/or Tardiness. The Unemployment Compensation Lawdoes not provide relief from charging an employer’s experience tax rating account when theemployee is “discharged” by the employer due to the employee’s personal illness or disability.However, a claimant who is discharged because of excessive unauthorized absenteeism commits“misconduct” under section 443.036(29). Tallahassee Housing Auth. v. Fla. UnemploymentAppeals Comm’n, 483 So. 2d 413, 414 (Fla. 1986). Generally, it is the employer’s burden to
prove excessive unauthorized absenteeism. Id. There are situations that this may not be thecase, as set forth in the 2011 amendments to the statute, noted at the beginning of this paper. Thecurrent case law requires the employer to present “satisfactory proof . . . of a serious andidentifiable pattern of excessive absenteeism” that is willful. Mason v. Load King Mfg. Co., 758So. 2d 649, 654 (Fla. 2000). The Mason decision explained: By “unauthorized absences,” we are generally referring to those absences where the employee has wilfully chosen to violate her fundamental obligation to an employer to come to work and carry out her assigned duties. Obviously, the failure of an employee to carry out his or her obligation can be devastating to the functioning of an employer’s business. Excessiveness must also be proven. While we realize that excessiveness may well depend on factors such as the particular employment context and presence or absence of workplace guidelines, we do not deem it unreasonable to require an employer who seeks to deny a former employee unemployment compensation benefits to meet this burden.Id. at 654-55. Once the employer meets its burden of proving that the employee’s absences wereexcessive and unauthorized, the burden shifts to the employee to rebut the presumption that theabsenteeism constituted “misconduct” under section 443.036(24). Tallahassee Housing Auth.,483 So. 2d at 414; Hamilton v. Unemployment Appeals Commission, 880 So.2d 1284 (Fla. 2dDCA 2004). Absences that are properly reported to the employer and are for compellingreasons, such as illness, do not constitute misconduct connected with work. Cargill, Inc. v.Unemployment Appeals Commn, 503 So. 2d 1340 (Fla. 1st DCA 1987); Howlett v. SouthBroward Hospital Tax District, 451 So.2d 976 (Fla. 4th DCA 1984); Taylor v. State Departmentof Labor and Employment Security, 383 So.2d 1126 (Fla. 3d DCA 1980). The Commission hasconsequently held that absences/tardiness based upon a compelling reason, such as illness,generally do not constitute willful absences/tardiness, even though they may be unauthorized bythe employer. 7. No Call/No Show. The courts have reversed the Commission in several no call/noshow cases, finding that a single instance of failing to report to work without notice is notsufficiently egregious to constitute disqualifying misconduct. See Dickerson v. FloridaUnemployment Appeals Commission, 646 So.2d 261 (Fla. 2d DCA 1994), (holding theemployee’s failure to report to work one morning was not disqualifying misconduct); Lamb v.Unemployment Appeals Commission, 424 So.2d 197 (Fla. 5th DCA 1983) (holding theemployee’s single instance of failing to appear for work without calling the employer did notamount to a wanton or willful disregard of the employer’s rules and, as such, did not constitutedisqualifying misconduct). In Watson v. Summit Asset Management, LLC, 22 So.3d 145 (Fla.4th DCA 2009), the claimant worked as a maintenance technician for this employer for about 15months. The referee’s decision notes that “[o]ver the course of the claimants employment hehad been warned more than once about his attendance,” and had been warned two months beforethe final incident for “failing to call the employer to give notice of an absence.” The claimanthas emphysema. Notwithstanding his illness and his earlier warning for being no call/no show,he chose not to own a telephone. In April 2008, the claimant was a no call/no show for three
days. On the third day, he went to a hospital and finally “called the employer late that night,leaving a message that he would be absent the next day.” Thus, the claimant was absent for threedays without any contact to his employer, notwithstanding prior warnings for both attendanceand for failure to provide notice. The referee excused the claimant’s violations of the employer’sattendance policies, due to the legitimate basis of his absence. The Commission, in reversing thereferee’s decision, noted that the claimant’s absences were for compelling reasons and would notsupport a disqualification. However, his absence for three days without notice to the employer,after being warned about similar behavior, did rise to the level of misconduct connected withwork. The court nonetheless reversed, noting that the claimant had a “legitimate inability totelephone his employer as required [and this] finding supports the referee’s conclusion that theclaimant’s failure to notify his employer during his absence was mere ‘poor judgment.’” In Godoy v. Florida Unemployment Appeals Commission, 43 So.3d 80 (Fla. 3d DCA2010), the court found no misconduct in a case involving an automotive repairs technician whowas fired after he failed to report for work or make any effort to contact the employer for threeconsecutive scheduled shifts. The claimant was absent due to his wife’s pregnancy. Theclaimant did not allege a compelling reason for his failure to report his absences. For example,the claimant did not allege he lacked access to a telephone nor did he allege that circumstancesarose which prevented him from calling the employer during his absence. The claimant testifiedhe simply “let one day go by and then another one.” When questioned further, the claimanttestified he did not call the employer because he believed the employer would become upset if hereported his absences. Nonetheless, the court found that the claimant was discharged for reasonsother than misconduct, focusing on the reasons for the claimant’s missing work (“familyobligation”) and giving little attention to the fact that he failed to report his absences. 8. Driving Accidents. The courts have been relatively lenient with claimants who wereterminated due to driving accidents. See, e.g., Lyster v. Florida Unemployment AppealsCommission, 826 So. 2d 482 (Fla. 1st DCA 2002) (holding that truck driver who was fired due tohis involvement in five accidents in a ten-month period was not disqualified from receivingunemployment compensation based on misconduct), and Maxfield v. Unemployment AppealsCommission, 716 So. 2d 859 (Fla. 5th DCA 1998) (holding that evidence that driver had beeninvolved in three car accidents in a twelve-month period did not support a finding that claimantsacts of misjudgment leading to multiple vehicle accidents constituted misconduct). The court inGirgis v. Unemployment Appeals Commn, 897 So. 2d 513 (Fla. 4th DCA 2005) certified conflictwith those cases, but concluded that “driving without looking where you are going, particularlyafter past driving misconduct and other related misconduct resulting in employment probation”constitutes misconduct connected with work. 9. Discharge due to Lack of Transportation. In Gallagher v. Florida UnemploymentAppeals Commission, 29 So.3d 345 (Fla. 4th DCA 2010), the court found that the claimant wasdischarged for reasons other than misconduct after he failed to report to his job as a deliverydriver due to car problems. The Commission’s order stated that “[i]t has long been held that anemployee has the responsibility to arrange his personal affairs in such a manner as to allow himto report for work on time, as scheduled.” The court’s decision references a decision of theFlorida Supreme Court, Gulf County School Board v. Washington, 567 So.2d 420 (Fla. 1990).The Court’s decision notes that this Supreme Court case “specifically overruled” a 1987
decision, Neller v. UAC, 510, So.2d 652 (Fla. 5th DCA 1987), which involved a claimantdisqualified for benefits on the basis of job abandonment when the car the claimant used fordeliveries became inoperable. The Gallagher court states that, “In Washington, by specificallyoverruling Neller, the court determined that an employee discharged for failing to meet acondition of employment, such as having a working car, is entitled to unemployment benefits.” The Third District Court of Appeals has taken a different approach to this scenario. InHernandez v. Florida Unemployment Appeals Commission, 23 So.3d 824 (Fla. 3d DCA 2009),the court affirmed the Commission’s disqualification of the claimant. After his personal carbroke down, the claimant left a message for his supervisor, stating he would not be able to cometo work for two or three days because he had car problems. The next day, the claimant learnedhe had been replaced. The court found that the claimant had voluntarily quit his employment, as“it was Hernandezs responsibility to make alternate arrangements to get to work.” C. VOLUNTARY LEAVING EMPLOYMENT The purpose of the unemployment compensation statute is to provide economicassistance to persons unemployed through no fault of their own. §443.031, Fla. Stat. Consistentwith that public policy, the statute generally disqualifies workers who leave their employmentvoluntarily. §443.101(1)(a), Fla. Stat. The statute excuses only those who leave employmentwith good cause attributable to their employer; those who leave work because of illness ordisability requiring separation; those who leave temporary work to return immediately whencalled to work by the permanent employing unit that temporarily terminated his or her workwithin the previous six calendar months; and those who relocate as a result of his or her military-connected spouses permanent change of station orders, activation orders, or unit deploymentorders. §443.101(1)(a)1., Fla. Stat. Furthermore, a claimant will not be disqualified if he/shevoluntarily leaves a temporary job in order to immediately return to work with a permanentemploying unit that had temporarily terminated the claimant within the previous 6 calendarmonths. 1. Quit for Another Job. Prior decisions and the literal wording of the statutenotwithstanding, the First District Court of Appeals has determined that the disqualificationprovision in Section 443.101(1)(a), Florida Statutes, does not apply in cases where the claimantwas “never completely unemployed.” In Doig v. Unemployment Appeals Commission, 862 So.2d 76 (Fla. 1st DCA 2003), the claimant quit a part-time job to accept another part-time positionthat offered better pay and benefits. The claimant in that case immediately began working forthe other employer with no gaps in his employment. The Commission disqualified the claimant,as his quitting the first employer was not “attributable to [that] employer.” Nonetheless, thecourt reversed the Commission, because the unemployment compensation statute did not“specifically” address the situation of a claimant leaving one job for another. In a recent case, Seneca v. Florida Unemployment Appeals Commission, 39 So. 3d 385(Fla. 1st DCA 2010), the court held its rationale in Doig was applicable where the claimantvoluntarily quit his part-time job to accept full-time employment and there were no gaps in hisemployment. The court noted that, like the claimant in Doig, the claimant in Seneca merely left
his part-time position for another job and was never completely unemployed. The court,therefore, held the claimant was not disqualified under Section 443.101(1)(a), Florida Statutes. In light of Doig and Seneca, the UAC does not disqualify claimants due to leaving onejob with the intention of taking another job, even if that successor job falls through. The taxaccount of the first employer will generally not be charged in such a situation. There would bean exception if the second job paid less than the first job and led to the claimant claiming partialunemployment benefits as a result. 2. Quit while still employed. In Rodriguez v. Florida Department of Commerce,328 So.2d 24 (Fla. 3d DCA 1976), the court held a claimant who quits a part-time job whilemaintaining full-time employment was not subject to disqualification for leaving the part-timework because she did not become unemployed when she quit. Similarly, in Rumayor v.Biohealth Medical Laboratory, Inc., 45 So. 3d 984 (Fla. 3d DCA 2010), the court held a claimantwho quit a part-time job while maintaining her primary employment was not subject todisqualification for leaving the part-time work when she was subsequently laid off from herprimary employment. 3. Attributable to employer (in general). As a correctional officer, the claimant inBeard v. State Department of Commerce, 369 So.2d 382 (Fla. 2d DCA 1979), was required towork whatever shift was assigned by the employer. When assigned a shift that conflicted withher child care arrangements, however, the employee quit without attempting to make alternativearrangements. Unemployment benefits were denied on the theory that her reason for quittingwas personal and not attributable to her employer. The significance of the statutory amendmentwas recognized by the Second District Court of Appeal in Beard v. State Department ofCommerce, 369 So.2d 382 (Fla. 2d DCA 1979), where the court commented: [T]he legislature, when it added the phrase "attributable to the employer" to the good cause requirement for voluntary termination, must have intended to remove domestic obligations as a good cause for voluntary termination. (footnote omitted).369 So.2d at 385. In Slusher v. State Department of Commerce, 354 So.2d 450 (Fla. 1st DCA1978), the First District Court of Appeal was confronted with a case involving an unemploymentcompensation claimant who had left employment for an unquestionably valid reason, but wasdenied benefits because her reason for leaving was not attributable to the employer. The courtsummarized the facts of the case and the contentions of the claimant as follows: [The claimant] voluntarily quit her employment to relocate with her husband in Virginia where he had secured employment. [The claimant] does not deny that she left her employment in order to be with her husband but urges that her decision to do so was for the preservation of her "American home way of life which is the basic foundation of this nation" and further argues that "no reasonable or sane person would abrogate the responsibility of a lawful marriage
to satisfy a mere whim or fancy that leaving their place of employment was without good cause attributable to the employer."354 So.2d at 451. The court expressed sympathy for the claimants situation, but affirmed theagencys denial of benefits with the following language: We certainly agree with the proposition that it is desirable to preserve marriages and keep families together. However, we must also agree with the statement of the appeals referee wherein he stated: Although the claimants reason for leaving may be considered a good personal reason, it cannot be considered attributable to the employer. Accordingly, it can only be considered that the claimant voluntarily left her employment without good cause attributable to her employer.Reedy v. Florida Unemployment Appeals Commission, 19 So.3d 1035 (Fla. 1st DCA 2009)involves a claimant who complained that her job caused her to have headaches and chest pains.After taking a couple of weeks of leave, the claimant found that her headaches and anxiety wentaway. She therefore quit. The employer had never reprimanded the claimant for poor jobperformance and her job was never in jeopardy based upon the backlog of unanswered customerservice requests. The appeals referee found that Reedys job had become extremely stressful toher and that she repeatedly spoke with the employer about the need for "assistance, training, andsupport" but that the situation did not improve. As a result, the court found that the claimant hadgood cause attributable to the employer to quit. On the other hand, in Perrone v. FloridaUnemployment Appeals Commission, 40 So.3d 31 (Fla. 1st DCA 2010), the court found that aclaimant who quit out of fear that he would be fired did not have good cause to quit. Arredondo v. Jackson Memorial Hospital, 412 So.2d 912 (Fla. 3d DCA 1982), involvedan employee who quit employment because he did not like working the night shift whichinterfered with his sleep and he was unhappy with the pay differential for the shift. The courtheld that these dissatisfactions did not constitute good cause within the meaning of theunemployment compensation statute for quitting employment. Marcelo v. Department of Laborand Employment Security, 453 So.2d 927 (Fla. 2d DCA 1984), involved a worker who haddifficulty communicating with his foreman because they did not speak a common language. Theworker was ill and attempted to demonstrate this to the foreman by blowing his nose andshowing the bloody phlegm to him. The foreman took offense and physically assaulted theworker and was about to assault him again when two others intervened. The worker wasfrightened and left work, believing he had been discharged. The court concluded that theindividual had good cause attributable to the employer for leaving the employment and,therefore, was not disqualified from receiving benefits. Advanced Mobilehome Systems, Inc. v. Unemployment Appeals Commission, 663 So.2d1382 (Fla. 4th DCA 1995), involved a claimant who quit his job as a roofing foreman becausehis employer insisted that he shave three days growth of beard before beginning work. The UAC
ruled that the claimant had good cause attributable to the employer to quit because the employerfailed to demonstrate the reasonableness of its clean shaven requirement. The court reversed. Itfound that the employer had a legitimate business interest in having its employees present acertain appearance to the public. The court further found that the claimant had right to quit hisemployment if he did not like the employers policy but his quitting was not for good causeattributable to the employer. The court distinguished cases where it was held that a governmententity must demonstrate rational relationship with a valid public purpose before it can interferewith an individuals right to choice of personal appearance. 4. Change in duties. Perez v. State Department of Labor and EmploymentSecurity, 377 So.2d 806 (Fla. 3d DCA 1979), involved a clerk in an auto parts dealership whowas required to fill in for the delivery driver who had quit. The clerk complained because hewas not relieved of his regular duties. After two weeks, he quit claiming the job had becomeintolerable. The court agreed with the agency that the clerk did not have good cause to quitwithin the meaning of the statute because the average, able-bodied qualified worker would nothave left his or her employment because of the conditions. See Uniweld Products, Inc. v.Industrial Relations Commission, 277 So.2d 827 (Fla. 4th DCA 1973). The court furtherobserved that it would not overturn a decision of an administrative agency if it was based uponan acceptable view of the evidence. Yet in Iglesias v. Eagle National Bank of Miami, 598 So.2d262 (Fla. 3d DCA 1992), an assistant bank branch manager was given additional duties after thebranch manager was terminated. For six months, the claimant requested additional assistancefrom his supervisor, but he received no response. The court reversed the UAC finding that theclaimant did not have good cause to quit and reinstated the appeals referee who found that theemployers disregard of the claimants requests for assistance gave him good cause to leave theemployment. Similarly, in Mattice v. Florida Unemployment Appeals Commission, 992 So.2d428 (Fla. 4th DCA 2008), the court found that a claimant who quit after being assignedadditional duties without a pay raise had good cause attributable to the employer to quit. In Salinas v. Eastern Aero Marine, 908 So. 2d 1169 (Fla. 3rd DCA 2005), the court foundthe claimant had good cause to quit when he was transferred to a job that exposed him to certainchemicals that affected his allergies. The decision discusses similar cases: In Vazquez v. GFC Builders Corp., 431 So. 2d 739 (Fla. 4th DCA 1983), the court held that an employer may "add to, subtract from, or change an employees work assignments," and if "the duties and requirements are reasonable, within the ambit of the position for which the employee is hired, and applied to all employees without discrimination," the employees refusal to perform the change of assignments constitutes misconduct connected with work "sufficient to relieve the employer of liability for unemployment benefits." Vazquez, 431 So. 2d at 741; see also Davidson v. AAA Cooper Transp., 852 So. 2d 398, 401 (Fla. 3d DCA 2003) ("Terminated employees are not . . . necessarily disqualified from receiving benefits for refusing to perform tasks outside the scope of employment."); Maynard v. Florida Unemployment Appeals Commn, 609 So. 2d 143, 145 (Fla. 4th DCA 1992) ("The general
rule is that changes may be made in the duties of an employee, so long as they are reasonable and are usual for the particular position for which the employee was hired. Moreover, where such a change of duties is made and the employee refuses to perform, the employee is guilty of misconduct, justifying denial of employment compensation benefits."); Kraft, Inc. v. State of Fla., Unemployment Appeals Commn, 478 So. 2d 1183 (Fla. 2d DCA 1985). 5. Family Emergency. In cases that involve a claimant’s contention that she wascompelled by the employer to resign from her employment in order to address a familyemergency, the Commission requires the referee to make a special inquiry as to whether theclaimant had the option of taking a leave of absence with reasonable, defined parameters. Thereferee must also make findings regarding whether the claimant gave the employer anopportunity to provide such a leave, and whether the claimant made a reasonable request for timeoff or other temporary accommodation to address a family emergency. See Tittsworth v.Unemployment Appeals Commission, 920 So.2d 139 (Fla. 4th DCA 2006). If such a request wasmade, the referee must then determine whether the employer’s denial of such leave oraccommodation was unreasonable and would reasonably impel the average able-bodied qualifiedworker to leave gainful employment. See Szniatkiewicz v. Unemployment AppealsCommission, 864 So.2d 498 (Fla. 4th DCA 2004). Generally, the decision of an appeals refereeinvolving a purported “family emergency” should address each of the following points: • Whether a bona fide family emergency existed; • The nature of the emergency and its anticipated duration; • Whether the claimant requested time off or another accommodation to address the emergency and, if so, whether the request was reasonable and appropriate under the circumstances; • Whether an alternative response to the emergency was available, discussed and/or offered to the claimant; • Whether this alternative would permit the claimant to remain employed and/or was otherwise reasonable under the circumstances and, if so, why the claimant did not elect an alternative solution; • Whether the employer granted or denied the claimant’s request, and the reason for denial; and • Any other pertinent circumstances regarding the specific situation. 6. Good Cause Due to Illness. A claimant does not lose eligibility for voluntarilyleaving a job due to “illness or disability of the individual requiring separation from his or herwork.” Florida Statutes 443.101(1)(a)1. In such situations, the employer’s account is notcharged. Florida Statutes 443.131(3)(a)1. The Commission, in reliance upon recent courtdecisions, has held that an employee who is separated due to illness or injury or disability isnot disqualified if that condition was the cause of the claimant being separated from his/her pre-injury/pre-illness/pre-disability job. For instance, if a claimant was employed as a laborer andsuffered a back injury, he/she would not be disqualified from the receipt of benefits if he/she is
terminated due to an inability to perform the duties of his/her laborer position. If the employeroffers an alternative position which the claimant refuses, then the inquiry becomes whether thisis a suitable offer of employment. If the claimant seeks to return to work in an alternativeposition and no such position is offered (or is offered and then discontinued), the Commissionwill nonetheless treat this as a quit due to illness or disability, as it was the injury/illness ordisability that caused the separation from “his or her work,” i.e., the pre-injury position. SeeUAC Order No. 07-08542 (2007). Generally, if a decision is rendered finding the claimant quitdue to illness or disability, the account of the employer is not charged. In Jennings v.Unemployment Appeals Commission, 825 So.2d 525 (Fla. 2d DCA 2002), the court held: “[T]he determination of whether an employee voluntarily leaves a job without good cause attributable to an employer should focus on whether the circumstances behind the employee’s departure would have impelled the average, ableminded, qualified worker to give up his employment.” Lewis v. Lakeland Health Care Ctr. Inc., 685 So. 2d 876, 879 (Fla. 2d DCA 1996) (quoting Dean v. Fla. Unemployment Appeals Comm’n, 598 So. 2d 100, 101 (Fla. 2d DCA 1992)). Applying this test, the Third District granted benefits to a factory worker who was physically unable to do the heavy lifting required by her job. Gottardi v. Joaquin Gen. Distribs., Inc., 618 So. 2d 363 (Fla. 3d DCA 1993). The Third District concluded that the factory worker acted reasonably in quitting a job that was physically beyond her. “[T]here is no meaningful difference between an employee who unavoidably finds that he or she cannot meet a known condition of employment and one who is discharged for simply failing to measure up to the requirements of the job.” 618 So. 2d at 365 (quoting Gulf County Sch. Bd. v. Washington, 567 So. 2d 420, 423 (Fla. 1990)). See also Krulla v. Barnett Bank, 629 So. 2d 1005 (Fla. 4th DCA 1993) (awarding unemployment benefits because claimant was physically unable to do job); Vajda v. Fla. Unemployment Appeals Comm’n, 610 So. 2d 645 (Fla. 3d DCA 1992) (same); Herman v. Fla. Dep’t of Commerce, 323 So. 2d 608, 609 (Fla. 3d DCA 1975) (considering the remedial and humanitarian purpose of the unemployment compensation statute, “[a] claimant ought not be penalized for seeking to be employed even if, in her desire to be employed, she takes an unsuitable job and after a few days cannot continue the employment”). Because the referee found that Jennings felt the job was too physically strenuous and there are no other findings, of fact or credibility, to support a contrary conclusion, we reverse the denial of unemployment compensation benefits.
In a recent case involving a claimant who quit her job without notice during her firstweek on the job, the Commission reversed the referee and found a quit with good causeattributable to illness. The Commission noted: The referee held the claimant disqualified from the receipt of benefits, reasoning that, since she did not inquire prior to accepting the job whether she would be allowed to sit during her shift, the claimant did not have good cause attributable to the employer to quit. The claimant testified she was hired as a cashier for the employer and, when she reported to the job, she asked her supervisor if she could have a chair to use during her shift. According to the claimant, the supervisor, who did not appear at the hearing, responded it was not the employer’s policy to give her a chair and no chairs were allowed in the cashier area. The claimant further testified she worked the eight hour shift and, when she got home, she had to take pain medications because of the effects of her continued standing. Finally, the claimant testified she returned to the job the next day, but was unable to work the entire shift because of the pain, so she advised the supervisor at noon that she was resigning. The employer’s witness testified the claimant’s supervisor advised her that the claimant had quit because she was asked to do some light cleaning, which she refused. This testimony must be rejected, however, because it constitutes hearsay evidence. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it is not sufficient, in and of itself, to support a finding unless it would be admissible over objection in civil actions. §120.57(1)(c), Fla. Stat.; Yost v. Unemployment Appeals Commission, 848 So.2d 1235 (Fla. 2d DCA 2003). In Belcher v. Unemployment Appeals Commission, 882 So.2d 486 (Fla. 5th DCA 2004), the appellate court considered a somewhat factually similar case. The claimant in Belcher was a 52 year old, five feet 2 inch, 110 pound female who was physically unable to perform the work, which involved the lifting of heavy boxes. The court specifically held the claimant was not told at hire the work would require her to perform manual labor and that the physical inability to perform the job gave her good cause to leave her employment. See also Humble v. Unemployment Appeals Commission, 963 So. 2d 956 (Fla. 2d DCA 2007); Vajda v. Unemployment Appeals Commission, 610 So. 2d 645 (Fla. 3d DCA 1992). In the instant case, the claimant had not been advised by a doctor to quit this job. However,
like the claimant in Belcher, the claimant did seek accommodation from her supervisor (she asked for a chair). Moreover, the claimant gave unrebutted evidence regarding her physical impairments which precluded her from performing the requirements of the job as the employer had defined the job (standing required; no chair permitted). The claimant’s physical impairments were not short-term, such as a broken arm. Similar to the claimant in Humble, the claimant in the instant case accepted a job offer without fully understanding the nature of the job and the work environment and the impact that her physical impairments would have on her ability to perform her job functions. She made an attempt to perform the job, determined that her physical impairment precluded her from doing so (as the job was structured) without impacting her health, and resigned before completing a full week on the job. Although the claimant made a minimal effort to preserve her employment (she only spoke with her supervisor), the Belcher decision stands for the proposition that notice of physical difficulty in performing the job is not required beyond notice to the first- level supervisor (if at all). However, in a situation such as this (new job, long-term impairments that interfere with claimant’s performance of expected duties), the statute and case law dictate the conclusion that the claimant had good cause attributable to illness or disability requiring separation from this position. A claimant in this situation can not be said to be “gaming” the system. There is no impact on the employer’s account (as the employer is not subject to charging) and little direct impact on the unemployment regime in general, as the claimant accumulated very little in the way of wage benefits from his very short stint with this employer. Inasmuch as the record in the present case does not reflect the claimant was told at hire that she could not sit during her shift and she was unable to work an eight hour shift without such an accommodation, we find the claimant quit her employment with good cause attributable to illness or disability. Accordingly, the claimant is not disqualified from the receipt of benefits. 7. Demotion. ABC Auto Parts, Inc. v. Florida Department of Labor andEmployment Security, 372 So.2d 197 (Fla. 1st DCA 1979), involved an employee who wasdemoted for failure to perform her assigned duties. She refused to accept the demotion and leftthe employment. The court held that the employer was disqualified from receivingunemployment benefits, reasoning as follows:
We hold that under a reasonable interpretation of the letter, intent and purpose of the unemployment compensation law, an employer may, in lieu of discharge of an employee who has been guilty of misconduct sufficient to justify discharge, transfer or demote that employee to a lesser position; and that if the employee on that account voluntarily leaves the employment, it cannot be claimed that it was for "good cause attributable to he employer"…. 372 So.2d at 199. 8. Settlement. When an individual accepts an early retirement opportunity, aworkers’ compensation settlement, or some similar voluntary job separation program, in theabsence of explicit notice of layoff or discharge, such individual cannot be said to have separatedwith good cause attributable to the employer within the meaning of the unemploymentcompensation law. Under such circumstances, the individual is disqualified from the receipt ofbenefits. See Smith v. Unemployment Appeals Commission, 823 So.2d 873 (Fla. 5th DCA2002); Calle v. Unemployment Appeals Commission, 692 So.2d 961 (Fla. 4th DCA 1997); In reAstrom, 362 So.2d 312 (Fla. 3d DCA 1978). The decision in Rodriguez v. FloridaUnemployment Appeals Commission, 851 So.2d 247 (Fla. 3d DCA 2003) dictates that, wherethe employer provides assurance to its employees considering taking a buyout that acceptance ofthe buyout will not affect their eligibility for unemployment benefits, a claimant who accepts thebuyout will have a good claim for UC benefits because the employer does not have totally cleanhands. In Yarabothu v. Unemployment Appeals Commission, 721 So.2d 379 (Fla. 5th DCA1998), a claimant accepted a cash settlement from the employer to end a lawsuit he had initiated.A condition of the settlement agreement was that the claimant would resign. The Commissionconcluded that the claimant had voluntarily left his employment without good cause attributableto the employer. The court held that the Commissions interpretation was not clearly erroneousand affirmed. The court was less deferential to the Commission in Sardinas v. FloridaUnemployment Appeals Commission, 906 So.2d 1204 (Fla. 4th DCA 2005). Chairman Forst’sconcurring opinion in UAC Order No. 04-04988 (2005) details the deficiencies in the court’sdecision. 9. Good Faith Efforts to Preserve Employment. Even if the employee arguablyhas “good cause” to leave his or her employment, he or she may be disqualified from benefitsbased on a failure to expend reasonable effort to preserve his or her employment. See Glenn v.Florida Unemployment Appeals Commission, 516 So.2d 88 (Fla. 3d DCA 1987). See alsoMorales v. Florida Unemployment Appeals Commission, 43 So.3d 157 (Fla. 3d DCA 2010);Lawnco Services, Inc. v. Unemployment Appeals Commission, 946 So.2d 586 (Fla. 4th DCA2006) (claimant voluntarily left work without good cause when he quit due to dissatisfactionswith his pay without first bringing his concerns to the employer’s attention or making any otherreasonable effort to preserve his employment); Tittsworth v. Unemployment AppealsCommission, 920 So.2d 139 (Fla. 4th DCA 2006) (claimant quit her job without good causeattributable to her employer as there was no evidence that she asked the employer for time off togo to Columbia to care for a sick member of her family or otherwise sought to take the leave andretain her job).