Not all non-full time employment is part-time employment

In Florida, the timing of when an employee quits full time and part time positions is critical to whether you will be eligible for unemployment compensation benefits.

In the early 1990s in Neese v. Sizzler, 404 So. 2d 371 (fla. 2d DCA 1981), the claimant had both a full time and part time job.  They were laid off from the full time job, sought and received unemployment benefits, and then quit their part time job.  The courts found that the claimant was not disqualified from partial unemployment benefits when the income from the part time job would not have exceeded the unemployment benefits the claimant would receive.

In 1999, the Florida Legislature passed an amendment which was to overturn Neese and its progeny, which would require total disqualification for individuals who work a full time and part time job simultaneously, qualify for partial benefits based upon being separated from the full time employer, if they subsequently quit the part time job.

What about individuals with "on call" jobs?  Or with jobs where they are in a pool of employees that try to secure work shifts on a first come/first served basis?  Or with jobs that have no regular schedule, no regular pay, and no regular contact with the employer?  These position might not be relevant to the determination of unemployment benefits and may be incorrectly considered the proper employer for consideration of benefits.

In this economic environment, it is not unusual for an individual to have some sort of non-full time, non-part time arrangement in addition to their full-time employment.  However, if you are laid off from your full time job and then quit your non-full time job, you may be denied unemployment benefits as voluntarily leaving employment without good cause attributable to your employer.

Quitting a job to move away, closer to your family, or for economic reasons are currently not considered "good cause" by the case law or the statutes, but still may be argued as "good cause."  Remember, "good cause" is that which would cause the able bodied worker to leave a position.  While your decision to leave may be "voluntary," it is involuntary due to the absence of a full time position, the absence- of suitable alternative work, and compelled by your need to survive.  It all depends upon how you argue your position before the Appeals Referee.

There are several cases which discuss the full-time/part-time employment situation as well as the on-call situation, and they may be available to support your position.  I would welcome the opportunity to discuss your case with you in the event you are considering filing an appeal for unemployment compensation benefits or have to defend an appeal by your employer.  The telephonic hearing is arguably the most important hearing in the entire process.

Don't go into any hearing unprepared and uninformed.  I offer a free initial consultation and affordable flat fee arrangements.  Please visit my website (http://www.deanjohnsonlaw.com) or call me at 850-298-8836 or the toll free number on my website.  I look forward to speaking with you and helping you through this difficult time.

Inadequate Work Performance is Not Misconduct

As you may know, Florida is an "at will" employment state -- meaning that without an employment contract, an employer may fire you for any reason without liability (except for federally and state protected discriminatory bases).  Without liability, the employer may fire you if he doesn't like your attitude, or if your constantly late, or you don't meet certain sales quotas, or if you just don't get along with other coworkers.  Employers routinely terminate employees for inadequate and/or poor work performance.  While that may be sufficient for being let go from your job, it generally is not enough to deny you unemployment benefits. 

In Florida, to be denied eligibility for unemployment benefits, the employee must have been terminated for misconduct connected with work.  "Misconduct" is defined specifically in the Florida Statutes.  While an employer may see your poor work performance, your failure to meet company standards, or your failure to follow company policies as misconduct, it generally is not sufficient under the Florida Statutes.  

Several cases hold that being fired based on an unsatisfactory work performance, without more, is "insufficient as a matter of law to constitute misconduct" under section 443.036(26) and thus result in a denial of unemployment compensation benefits.  In Gulf County Sch. Bd. v. Washington, 567 So.2d 420 (Fla.1990), the Florida Supreme Court stated  "[i]t is well settled that an employee who is discharged because he cannot adequately perform the work is entitled to unemployment compensation in spite of the fact that the employer had good reason to fire him."

If you receive a determination that you are not eligible for benefits due to misconduct when you have been fired for unsatisfactory work performance, you may have satisfactory grounds for an appeal and a hearing before an Appeals Referee.  Remember that you have the right to hire an attorney to represent you at these hearings.  Additionally, this telephonic hearing may be your only chance to present documents, testimony, and all of the legal arguments which may support your position.  Appeals to the Unemployment Appeals Commission and the District Court of Appeal generally do not review or allow you to provide new or additional evidence or arguments that you did not provide to the Appeals Referee.  

Of course, each unemployment case is different and yours may or may not fall within this exception.  Accordingly, you should speak with an attorney experienced in unemployment compensation if you have any questions about your situation.  Feel free to contact me for a Free Initial Consultation.  I'd be happy to speak with you.

A "Resign or Be Fired" Resignation is Not a Voluntary Termination under Unemployment Statutes

Many workers have heard this:  "Either you can resign or we'll have to fire you.  Which do you think would look better on your resume?"

Writing out a resignation in light of knowledge that you're no longer going to be employed anyway is clearly not a voluntary resignation. You'd rather keep your job, I'm sure.  It's getting more difficult to do that in this economy.

Under the unemployment compensation statutes, a voluntary termination or separation from your employer generally disqualifies you from receiving unemployment compensation benefits.  This is because unemployment benefits are provided for those who have been laid off or terminated for non-work related reasons.  If you voluntarily resign, that shows a deliberate choice on your behalf to leave a job you would otherwise keep.

The question of whether a claimant left work voluntarily is one of fact and within the province of the appeals referee.  See Porter v. Fla. Unemployment Appeals Comm'n, 1 So. 3d 1101 (Fla. 1st DCA 2009).

So, if you are faced with an appeal of an AWI determination that because you "voluntarily" resigned from your employer under such circumstances, you need to make sure that you present a record of evidence to the appeals referee that it was a "resign or be fired" situation and not voluntary by any means.

If you have any unemployment appeals questions or would like to seek representation for the appeal, I encourage you to visit my webpage or call me at 866-666-6141.  I'd be happy to discuss your options with you.

Voluntarily Leaving One Job for a Better Paying Job that Doesn't Work Out Does Not Disqualify You from Seeking Unemployment Benefits

Under unemployment laws, a general rule is if you voluntarily quit your job, you can’t receive unemployment benefits. But what happens if you quit your job for a better paying job which then either never comes to fruition or from which you are terminated or laid off due to no fault of your own?

In Lakey v. Cracker Barrel and Florida Unemployment Appeals Commission, the First District Court of Appeal held that such a move does not automatically disqualify the individual from seeking unemployment compensation benefits from the prior employer--but the appellate court did not hold that it would entitle the individual to benefits.   

The facts of the case are as follows:  Ms. Lakey worked for Cracker Barrel for about a month during the end of 2008.  She then left to go work for a better paying job at the Peabody Hotel.  Sometime thereafter, she was laid off from the Peabody.  Lakey then applied for unemployment from Cracker Barrel.  AWI denied the petition on the basis that she voluntarily quit her job at Cracker Barrel.   The appeals referee and the Florida Unemployment Appeals Commission affirmed that denial.  Lakey appealed the UAC's affirmance to the First District Court of Appeal . The First DCA reversed the decision stating that “nothing in the statute provides that leaving one job in order to take a better paying job disqualifies an employee later terminated without good cause from receiving unemployment compensation benefits.”  The appellate court reversed the determination and remanded "for further proceedings."  It did not mandate granting such benefits.

The First DCA seems to implicitly recognize that an individual should not be penalized for trying to improve their employment situation when things at the new job don't work out.  The decision, however, is fairly narrow in that it provides that such a move does not disqualify the employee from receiving unemployment benefits.  The disqualification for voluntarily leaving work is a threshold criterion in the determination of entitlement to unemployment benefits.  The employee must still meet all other requirements.

Notwithstanding, the decision seems to be in line with a growing sympathy toward the unemployed during this difficult economy.  Employees need all the help they can get, and we'll take it.

If you have been denied unemployment compensation benefits and would like some free legal advice on your situation, please do not hesitate to call me to discuss your appeal options because you only have 20 days from the date of the denial to file your appeal.  Visit www.deanjohnsonlaw.com for contact information.

Lack of Transportation is Not Misconduct Sufficient to Deny Unemployment Benefits

     In Gallagher v. State of Florida, Unemployment Appeals Commission and Sofla Wings 1, LLC, (Fla. 4th DCA Feb. 3, 2010), the appellate court addressed a situation where an employee was fired for not reporting to work when the transmission in his vehicle broke down.  The employee called his supervisor to tell him, but the supervisor said he was busy and hung up. The employee tried again to speak with the supervisor later that day, but was unable to reach him. The employee was fired the next day for not showing up to work.

     The employee then sought unemployment benefits and the appeals referee found that the employee could not perform the duties of the job because his vehicle broke down. The Unemployment Appeals Commission, however, rejected the referee's findings and denied the employee unemployment benefits. The employee then appealed that decision to the Fourth District Court of Appeal.

     The appellate court went through the history of cases where generally, an employee's transportation problems do not constitute misconduct such that the employee would be denied unemployment benefits. The appellate court reiterated that courts and agencies must liberally construe the unemployment statute in favor of the employee. The appellate court noted that the Florida Administrative Code provides that "chronic or unauthorized absenteeism or tardiness over which the claimant has control" may constitute misconduct. F.A.R. 60BB-3.020(3)(b) (2008). The appellate court further cited cases in which no misconduct was found when an employee missed three consecutive days of work because of vehicle malfunction and when the employee did not call the employer until the next day to report his vehicle's malfunction.

     Thus, if the reason you were terminated was because you were late for work or did not show up for work due to a vehicle malfunction, that may not be a legitimate reason (without more) to deny you unemployment compensation. 

    I strongly urge anyone who has been denied unemployment compensation benefits to contact an unemployment compensation appeal attorney to evaluate your chances at overruling that determination. Many factors must be considered. If you fail to provide the appeals referee with the appropriate documentation or testimony, you may lose your ability to receive those unemployment benefits to which you may be entitled.

     Please contact me for a free consultation. Flat fee arrangements are available as well as possible payment arrangements. You may also be able to have your attorney's fees paid by the employer if successful.

Prior Warnings Normally Required to Affirm Termination of Employee

In Hernandez v. American General Finance and Florida Unemployment Appeals Commission, Case No. 3d-09-3326 (July 7, 2010), the Third District Court of Appeal reversed the Unemployment Appeals Commission's denial of unemployment benefits based on what it described as an "isolated incident" of "poor judgment."

The 14-year employee was terminated for not seeking proper corporate authorization before approving a $2000 increase to a loan.  The company had not given the employee any warnings regarding this behavior and the appellate court deemed it an isolated incident.  The appellate court reiterated that there has been a distinction drawn between (1) an isolated incidence of poor judgment and (2) misconduct that demonstrates "willful or wanton disregard of an employer's interests."  The court cited the case of Grossman v. JC Penney Co 2071, 689 So. 2d 1206, 1207-08 (Fla. 3d DCA 1997), which reversed a denial of unemployment benefits because the employee was not aware that the subject action caused her employer any concern until she was discharged and that the act itself did not reflect a substantial disregard of her employer's interest.

The court also cited Riveras v. Unemployment Appeals Commission, 884 So. 2d 1143, 1145 (Fla. 2d DCA 2004), which held that misconduct "usually involves repeated violations of explicit policies after several warnings" and that was "in keeping with the explicit philosophy behind the unemployment compensation law."

Thus, the court found that the Unemployment Appeals Commission abused its discretion in denying unemployment benefits to Ms. Hernandez.

This opinion helps support a terminated employee's argument that several warning are usually required if the acts upon which the company fires the employee do not demonstrate a "substantial disregard of her employer's interests or manifest the 'wrongful intent' or 'evil design' described in section 443.036(29)."

Florida Unemployment Benefits Available to the Justly Terminated

Let's look at the level of misconduct required to be denied unemployment benefits.

Employees justly terminated from their jobs may nevertheless be entitled to receive unemployment compensation benefits. Although an employee's actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits. Betancourt v. Sun Bank Miami, N.A., 672 So. 2d 37 (Fla. 3rd DCA 1996).

For Unemployment Compensation benefits to be denied, an employee's behavior must rise to the level of "misconduct," defined as acting willfully, wantonly, or be in substantial disregard of the employer's interest. See §§ 443.036(29), and 443.101, Fla. Stat.

An isolated incident of poor judgment does not rise to that level. See McKnight v. Florida Unemployment Appeals Comm'n, 713 So. 2d 1080 (Fla. 1st DCA 1998); Betancourt, Bulkan v. Florida Unemployment Appeals Comm'n, 648 So. 2d 846 (Fla. 4th DCA 1995); Smith v. Krugman-Kadi, 547 So. 2d 677 (Fla. 1st DCA 1989), review denied, 558 So. 2d 20 (Fla. 1990); and Erber v. Federal Express Corp., 409 So. 2d 522 (Fla. 5th DCA 1982).

In Florida, an isolated incident or, sadly, no incident at all may lead to the lawful termination of an employee, as Florida is an at-will state.

The above reasons, however, do not constitute grounds to prevent a terminated employee from receiving Unemployment Compensation benefits.