Employers and employees should all be aware that Florida’s Division of Unemployment Compensation has a public policy mission to grant benefits unless:
"Misconduct" as defined by Florida's Unemployment Division is not an employee’s inability to do a job. Laziness, while frustrating, usually does not rise to the level of “misconduct." Unemployment’s “misconduct" standard is actually a high burden for an employer to meet. Misconduct is easily shown when someone smokes next to a gasoline tank, batters a co-worker or customer, or screams obscenities in front of co-workers or customers. Simply being tardy or leaving work early usually won’t rise to the level of misconduct. However, this is where well written and consistently applied policies and procedures come into play. Applying those policies and procedures consistently and documenting the employee’s file is key. As an employer, it will assist you to show that supervisors noted performance discrepancies, that a performance improvement plan was implemented, and the employee was counseled but appeared unwilling to do the job as required. As an employee, the lack of these items will bolster your claim that your were terminated for reasons other than "misconduct associated with work."
Not all claims for unemployment benefits should be appealed. Be very aware of all deadlines provided by Unemployment in the Notice of Determination - missing a deadline will result in the dismissal of your appeal. Gather all evidence and witness testimony to prove your case. Of great significance, affidavits from co-workers, managers or customers will not win the day - live testimony from witnesses who observed the alleged misconduct is absolutely positively required! The rules and statutes governing Unemployment proceedings guarantee former employees the right to confront.
The Unemployment Compensation Division conducts telephonic hearings with a Hearing Officer making determinations as to credibility. Witnesses must be present at that telephonic hearings so that the former employee, the former employer, and the Hearing Officer have the ability to question and cross examine. Prepare arguments well in advance and have your questions ready for the hearing. Have all documents such as handbook policies and disciplinary notes faxed to the Hearing Officer prior to the hearing, and provide copies of those same documents to your opposing side.
If you receive a Notice of Determination upholding the award of benefits, you may want to consider further administrative appeals through Unemployment and then on the First District Court of Appeal. The Unemployment Division's website is very helpful in providing specific details about the process.
A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.