Miami Employment Lawyer Blog

I am very happy to report that we prevailed last week on an unemployment compensation appeal for a client that was denied unemployment benefits because of a violation of company policy. The Florida Third District Court of Appeal, which sits in Miami, Florida, decided that a violation of company policy, which also was a violation of federal regulations, was not sufficient to deny a fourteen-year employee unemployment compensation benefits. Attached to this link is the full Opinion of the Court in Hernandez v. Florida Unemployment Appeals Commission, Docket No. 3D09-3326 (Fla. 3d DCA July 2010).

In that case, Ms. Hernandez, the employee, worked as a customer account specialist for American General Finance, one of the largest loan companies in the country. Sometime prior to her discharge, she processed a loan for a customer. When the customer took out the loan, he was with a third party and according to the evidence, the customer and the third party were very close friends. Subsequently, the third party came in and requested an increase in the amount of loan, which Ms. Hernandez duly processed. However, she failed to obtain the approval of the customer or the customer's signature on any of the loan increase papers. The customer found out about it and when he complained, that's when Ms. Hernandez was fired. The company claimed that it was a violation of company policy and a violation of federal regulations. However, Ms. Hernandez had never been given a reprimand or warning for this or any other type of conduct during her entire 14-year tenure with the company. Nevertheless, the Appeals Referee determined that this was misconduct as defined in the unemployment law and denied unemployment compensation benefits. The Unemployment Appeals Commission affirmed.

At oral argument before a panel of three judges of the Third District Court of Appeal, we argued that this was an isolated incident of a lapse of judgment that should not rise to the level of being "misconduct" as defined by the unemployment law. The Unemployment Appeals Commission ("UAC") argued that the conduct was so egregious that it was tantamount to a willful and wanton disregard of the employer's interests. The UAC cited several opinions for this proposition, such as the case of Sears & Roebuck v. Florida Unemployment Appeals Commission, 463 So.2 465, (Fla. 2d 1985), where an employee was denied unemployment benefits because of a clear violation of company policy, which also included a violation of law. However, I argued to the judges that the cases cited by the UAC involved situations where the employee garnered a benefit from the conduct. In the case before the Court, the employee received no benefit whatsoever. As such, it was a simple error in judgment. The Court agreed and found that one incident of poor judgment exercised by Ms. Hernandez over a fourteen-year career with the employer, does not rise to the level of being misconduct as defined by the unemployment law.

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Under Florida law, if an employee voluntarily quits his/her job, that employee would generally not be entitled to collect unemployment compensation benefits unless he/she can show that quitting was for a reason attributable to the employer. Yet, where the employer significantly reduces an employee's work hours, that may be sufficient good cause to voluntarily quit and still collect unemployment compensation benefits. That's what the Fifth District Court of Appeals held last month in the case of Diaz v. Unemployment Appeals Commission, Case No. 5D09-1011 (Fla. App. 3/26/2010).

In that case, a prep cook voluntarily left his employment and then filed a claim for unemployment compensation benefits. His claim was denied by the claims adjuster, but the employee appealed claiming that his hours were cut so severely that he spent more money getting to work than he actually earned. At the telephonic hearing, the Appeals Referee determined that the employee was not eligible for benefits because he voluntarily left work and the reason for leaving (his work hours) was not attributable to the employer. The Unemployment Appeals Commission affirmed the Appeals Referee's decision and the employee appealed to the Fifth District Court of Appeals.

On appeal the Fifth District Court of Appeals first noted that an employee who voluntarily leaves his employment without good cause attributable to the employer is not eligible for unemployment compensation benefits. The Court then noted that "good cause" for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment. Then the Court reasoned that a significant reduction in hours or salary may constitute good cause attributable to the employer, which would allow an employee to voluntarily terminate his employment and still remain eligible for unemployment benefits. The Court then noted that employer did not dispute the employee's testimony that his hours had been cut and he was only working one to two days per week, sometimes for only one hour at a time. Based on that evidence, the Court reversed the Appeals Commission's decision and remanded the case for consideration of whether the reduction in the employee's hours was substantial enough to constitute "good cause" attributable to the employer.

Continue reading "A Substantial Reduction in Hours May Constitute Good Cause for an Employee to Voluntarily Quit and Still Collect Unemployment Compensation Benefits" »

Recently, we have seen many clients come into our Miami office seeking to overturn a decision of the Florida Unemployment Appeals Commission which denies them benefits because they filed an untimely appeal. Unfortunately, there is no recourse in many of these cases. The typical case is where a laid-off employee files for unemployment compensation benefits and the Agency for Workforce Innovation issues an initial determination granting benefits. Once benefits begin flowing in, the claimant sometimes disregards future notices, including appeals by the employer. However, this can be fatal and may result in a requirement that the claimant repay all of the monetary benefits that have paid to the claimant.

It is a fundamental requirement in Florida that if an employer or claimant wants to appeal a determination or decision regarding unemployment compensation benefits, the appeal must be filed within twenty (20) days of the determination or decision being mailed. The requirement is jurisdictional and completely divests the Commission of jurisdiction if it is not met. Many cases are dismissed because of an untimely appeal. Even a few days is fatal to the appeal.

However, Florida courts have carved out an exception to this rule in cases where the appeal was filed untimely due to force majeure events (acts of God) or due to causes completely outside the control of the claimant. The seminal case is Dumorange v. Florida Unemployment Appeals Commission, 947 So.2d 472 (Fla. 3rd DCA, 2006). In that case, a former City of Miami police officer was laid off and initially granted unemployment compensation benefits. The City of Miami appealed the determination and a hearing was held before an Appeals Referee, who decided that the claimant was discharged because of misconduct connected with the work. Approximately twenty-seven days after the Appeals Referee's decision was mailed, the claimant filed an appeal of the decision. However, the Florida Unemployment Appeals Commission ruled that the appeal was untimely and that under Florida Statutes Section 443.151(4)(c), it had no jurisdiction to hear an untimely appeal. The claimant then appealed to the Third District Court of Appeals and argued that he could not file his appeal within the required twenty-day period because he was adversely affected by Hurricane Wilma. The Court of Appeals took judicial notice of the fact that Hurricane Wilma disrupted the lives of virtually all residents of South Florida and that electrical power was lacking in the vast majority of homes and businesses in Miami-Dade County. The Court then stated that it would be a denial of due process to not give the claimant an opportunity to be heard and therefore remanded the case to the Commission to adjudicate the appeal.

Continue reading "Untimely Appeal of Florida Unemployment Compensation Decision May be Waived in Certain Cases for Good Cause Shown" »

Many employees think that they are not entitled to unemployment compensation benefits if they quit their job. However, that is simply not true. While it is a commonly held belief that an employee who quits his job is not entitled to unemployment compensation benefits, a recent decision of the 1st District Court of Appeals in Florida demonstrates that this is not true in all cases. In essence, the Court held that even if an employee voluntarily quits his job, the employee does not necessarily lose his entitlement to unemployment compensation benefits.

In that case, Reedy v. Florida Unemployment Appeals Commission, Case No. 1D08-6330 (1st DCA 2009), the employee voluntarily left her job because she was facing significant stress at work that gave her anxiety and exacerbated her medical problems. On appeal, the Court of Appeals stated the general rule that an employee who voluntarily quits a job is not entitled to unemployment compensation benefits unless it is shown that she left for good cause attributable to the employer. Then the Court found that the employee's job had become exceedingly stressful and that she had repeatedly asked for assistance, but simply did not get the assistance that she needed. She began to suffer headaches and chest pains, which her physician diagnosed were related to the anxiety and stress that she suffered at work. Her job performance began to slip significantly. Then, after a short vacation, the employee informed her employer that she would not return to work. She then applied for unemployment compensation benefits.

The Court held that under the circumstances of the case, the employee had shown good cause because those circumstances were such that any reasonable person would be compelled to have given up her job when faced with what the employee was faced. The Court found that the employee voluntarily left her job for good cause attributable to the employer and reinstated the unemployment compensation benefits.

This case demonstrates that there are circumstances where an employee will still receive unemployment compensation benefits even if he quits his job. Similar circumstances could include (i) where the employer cuts the employee's hours to such an extent that the employee resigns in order to seek a job that offers more hours, (ii) where the employee walks off the job because of a hostile work environment, and (iii) where the employer transfers the employee to a location that is much further away from her home.

Continue reading "Florida Court of Appeals Holds that an Employee Who Voluntarily Quits her Job May Still Receive Unemployment Compensation Benefits" »

Many employees come into our Miami offices and ask whether they can be denied unemployment compensation because of an accident, a cash register shortage or similar mistakes at work. The answer is usually no. Under Florida law, an unemployed individual who is otherwise eligible and has met the wage requirements cannot be denied unemployment compensation due to simple negligence. This means that a careless accident or an inadvertent shortage in the cash register will generally not be sufficient to deny unemployment compensation benefits.

Florida law provides that an individual may be disqualified from receiving unemployment compensation benefits if he or she was involved in "misconduct connected with the work." Under the statute, "misconduct" is defined as conduct demonstrating willful disregard of the employer's interests or negligence that demonstrates culpability, wrongful intent or evil design. Simple carelessness or negligence is not sufficient. Specifically, carelessness that does not "manifest culpability, wrongful intent, or evil design" does not constitute "misconduct" within the meaning of the Florida unemployment compensation laws. Furthermore, in defining whether specific employee action constitutes misconduct, courts are required to liberally construe the statute in favor of the employee.

Thus, an individual's conduct at work may be sufficient to justify termination from employment, yet not amount to misconduct sufficient to deny unemployment compensation benefits. Each case, however, must be viewed on its own facts and circumstances. The following examples show how the law is interpreted:

• Where an employee was discharged due to ineptitude and poor work performance that was not a result of a lack of effort, the employee was not denied unemployment compensation benefits.

• Where an employee was given a corrective action plan due to poor performance, his disagreement with the corrective action plan was sufficient to warrant discharge, but insufficient to deny unemployment compensation benefits.

• Bank teller's mistake that cost the bank a significant amount of money was sufficient to warrant discharge, but insufficient to deny her unemployment compensation benefits.

• The use of foul language or vulgarity directed at a supervisor was sufficient to warrant discharge but insufficient to deny unemployment compensation benefits.

It should be noted that a mere isolated violation of a company policy is insufficient to deny an individual unemployment compensation, particularly if the employee was never warned that such a violation could result in discharge. However, if an employee continuously violates company policies, and is warned that further violations will result in termination, it is likely that the employee will be denied unemployment compensation. Also, excessive absenteeism and tardiness that demonstrate a lack of effort are also sufficient to warrant a denial of unemployment compensation benefits.

Therefore, as it can be seen, conduct that will deny unemployment compensation benefits must be fairly egregious and be a willful or wanton disregard of the employer's interests. As indicated by the cases, the conduct must demonstrate an "evil design" or "wrongful intent".

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