Unemployment Compensation

Introduction to Misconduct

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

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

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

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

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

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

Cases in Which There Have Been Findings of No Misconduct

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

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

Misconduct, as grounds for disqualification from unemployment compensation benefits, is to be narrowly construed. In applying these principals, it has been held that an isolated act of poor judgement will not necessarily amount to misconduct. See: LaRocca v. Unemployment Appeals Commission, 643 So. 2d 1199 (Fla. 5th DCA 1994). Thus, in Cooks v. Unemployment Appeals Commission, 670 So.2d 178 (Fla. 4th DCA 1996) the claimant was not disqualified when he was dismissed after he challenged his manager to fire him during a heated discussion in which he was being criticized. It should be noted that the court contrasted the facts in that case with Hines v. Department of Labor and Employment Security, 455 So. 2d 1104 (Fla. 3rd DCA 1995), where the claimant was disqualified for challenging his foreman to fire him. In Hines, the claimant had previously suggested to the company vice-president during a heated discussion that he should fire him. At that time, he had been warned that a repeat of this conduct would lead to his dismissal. The distinction in Hines was that the employee repeated the conduct, and there was a specific warning.

Repetition of the conduct and prior warnings are often considered in decisions as to compensability. For example, in Benitez, supra, 609 2d at p.666 the claimant was allowed one free pass where she called her manager a "liar" and a "f...ing son of a bitch." The court characterized it as an isolated incident, which did not amount to misconduct. Further, in Bulkan v. Florida Unemployment Appeals Commission, 648 So.2d 846 (Fla. 4th DCA 1995), an automotive service technician was not guilty of misconduct when, on one occasion, he worked on a car without preparing a service order. This was in violation of a recently initiated rule prohibiting technicians from working on an automobile unless a service order was prepared for the vehicle.

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

The issue of whether an individual was discharged for misconduct often comes up in cases where there has been a physical altercation. As a rule, where there is provocation and the claimant is not the aggressor, no misconduct will be found. In Davis v. Florida Unemployment Compensation Appeals Commission, 472 So.2d 800 (Fla. 3rd DCA 1985) the claimant was awarded benefits after she reacted violently to a co-worker's verbal attack which included racial insults. The court conceded that, while the claimant may have used poor judgement, allowance was made for the fact that an otherwise satisfactory employee was provoked. See also: Lucas v. Unemployment Appeals Commission, 664 So. 2d 1043 (Fla. 2nd DCA 1995), where benefits were awarded to an employee who pushed a co-worker with his hand as the two came toward one another. Since the co-worker had provoked the confrontation with repeated verbal badgering, the court found this to be a non-disqualifying single act of loss of self control.

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

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

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

Cases in Which Misconduct Has Been Found

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

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

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

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

Southeast Atlantic Corporation, 588 So. 2d 1039 (Fla. 1st DCA 1991). A single act of intoxication on the job in a safety sensitive industry may also result in a finding of a disqualifying act of misconduct. Florida Mining & Materials Corporation v. Florida Unemployment Appeals Commission, 530 So. 2d 426 (Fla. 1st DCA 1988).

An employer may run into difficulty in proving illegal drug use. The Act provides some assistance in this respect in F.S.443.101(11), to an employer who obtains a beneficial insurance rating from the Department of Insurance as provided in the insurance code at F.S.627.0915. The rating is obtained by maintaining a drug free work place as set out in the Workers Compensation Act, F.S.440.102, An employer with the required rating is entitled to admit into evidence, drug test results from a drug testing laboratory that is licensed and approved as provided in F.S. 440.102(9). Such test results and the chain of custody documentation provided to the employer by the laboratory will be self- authenticating, admissible and will create a rebutable presumption as to their validity. An employer who plans to take advantage of this section of the statute must be certain to have a representative present at the hearing who can testify competently as to the employer's insurance status. It is also necessary to have a representative of the testing laboratory who is competent to introduce into evidence the laboratory's certificate of approval. In SKF Management v. Unemployment Appeals Commission. 664 So.2d 345 (Fla. 5th DCA 1996), the employer was unsuccessful in proving drug related misconduct because it only presented hearsay testimony as to these crucial elements.

In some cases employees who have been discharged for poor performance have been denied benefits based on a finding that their conduct was willful. In these instances it was determined that the employee was fully capable of performing up to the employer's standards. The court commented in Rycraft v. United Technologies, et al, 449 So. 2d 382,383 (Fla. 4th DCA 1984), while inefficiency or sub-standard performance are not misconduct where they result from inability, a capable employee's refusal to perform can evidence intentional and substantial disregard of the employer's interests.

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

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


Disqualifications based on reasons other than Misconduct


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

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

An employee who left work early to attend to moving her residence, contrary to her employer's instructions, was found guilty of misconduct and denied benefits in Thurber v. Hillier & Wanless, P.A. et al, 642 So. 2d 75 (Fla. 4th DCA 1994) Where the employee has been shown to be absent without personal fault, the rulings have favored the employee. A claimant sustained her burden of showing that her absences were not misconduct when she missed work because of injuries caused by her abusive husband in Gilbert v. Department of Corrections, et al, 696 So. 2d 416 (Fla. 1st DCA 1997).

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

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

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

Disqualification for Voluntarily Leaving Employment

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

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

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

To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able bodied qualified worker to give up his or her employment. ... The applicable standards are the standards of reasonableness as applied to the average man or woman, and not to the supersensitive. (citations omitted)

The fact situations where employees have been awarded benefits after quitting their jobs are varied, as will be seen from the following scenarios. An employee who quit when she was paid less than she had been offered to leave her prior job, prevailed in Kralj v Florida Unemployment Appeals Commission, 537 So. 2d 301 (Fla. 2nd DCA 1989). Good cause was also found where an employee quit after having additional duties with no help and no increase in pay. Morgan v. Unemployment Appeals Commission, 623 So. 2d 607 (Fla. 4th DCA 1993) In contrast, is the case of a worker who left because he was temporarily required to take on the duties of an employee who had quit, in effect requiring him to perform two jobs. Perez v. State of Florida, et al., 377 So. 2d 806 (Fla. 3rd DCA 1979) The court found that Perez voluntarily left his employment under circumstances that would not reasonably impel the average employee to quit. An individual who resigned in order to take his employer's reduction in force separation package was found to have left his employment for good cause attributable to his employer. Martin v. State of Florida, 654 So. 2d 1203 (Fla. 1st DCA 1995) An employee who was unable to perform the lifting requirements of her job after the person who had been assisting her left was found to have left with good cause. Gottardi v Joaquin General Distributors, Inc.,618 So. 2d 363 (Fla. 3rd DCA 1993) The court reasoned that one who resigns because of inability to meet the requirements of the job is in the same position as one who is discharged for inability to perform the job.

Some cases raise the issue of whether an employee has in fact resigned. In Mathieu v. Ferman Motor Car Company, Inc., et al., 651 So. 2d 211 (Fla. 2nd DCA 1995) An employee had to take part of the afternoon off when he was stricken with grief on receiving news of the death of a friend. He was found not to have voluntarily left his employment. The court decided that his repeated efforts to talk to members of management to get permission to return to work was evidence that he had not voluntarily resigned. He was therefore awarded benefits.

Other Bases For Disqualification:

Refusal to Accept Suitable Work

An individual will be disqualified from receiving unemployment compensation benefits where he or she "...has failed without good cause either to apply for available suitable work when so directed by the division or employment office, or to accept suitable work when offered to him or her ..." F.S.443.101(2) (emphasis supplied) The statute gives some guidance on what constitutes suitable work at F.S.440.101(2)(a):

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

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

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

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

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

Labor Disputes

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

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

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

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

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