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Important Changes to Florida's Unemployment Compensation Laws

On June 27, 2011, Governor Rick Scott signed new legislation amending Florida’s unemployment compensation law.  As we reported in our August 26 blog post, the new laws significantly expand the definition of employee misconduct.  The amendments also have important consequences for employee severance pay.

Under the old unemployment compensation law, establishing misconduct often proved difficult for employers because the employer had to show that either: (1) the employee demonstrated a willful or wanton disregard of the employer’s interests and deliberately violated or disregarded the standards of behavior which the employer had a right to expect of his or her employee; or (2) acted so carelessly or negligently as to establish an intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations to the employer. The new law changes the definition of misconduct under the first prong to provide that an employee’s conduct must demonstrate a “conscious” as opposed to “willful or wanton” disregard of the employer’s interests. One of the other important expansions to the definition of misconduct is that misconduct is not limited to acts committed by the employee at the workplace or during working hours.

The new statutory definition of misconduct, which may be found in Fla. Stat. §443.036(30), also provides specific examples of misconduct, which include:

Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer.One or 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 the State ofFloridaby an employee of an employer licensed or certified by the State, which violation would cause the employer to be sanctioned or have its license or certification suspended by the State.  Violations of an employer’s rules, unless the claimant can show that he or she did not know and could not reasonably know about the rule; the rule is unlawful or not reasonably related to the claimant’s job or job performance; or the rule is not fairly or consistently enforced by the employer.

The new law underscores the importance of the promulgation by employers of policies and procedures governing an employee’s conduct and job expectations. It is thus prudent for employers to provide their employees with an employee manual or handbook upon hire, and to ensure that employees acknowledge receipt of the policy manual in writing. If the manual is updated or amended, employees should be notified in writing of the policy changes and should also be required to provide written acknowledgement of any policy updates.

While the expansion of the definition of misconduct will likely benefit employers by making the employer’s burden to prove misconduct less onerous, employers should keep in mind that, simply because they may have a valid basis for terminating an employee does not automatically disqualify an employee from receiving unemployment compensation benefits. Instead, the employer must demonstrate that the employee’s conduct meets the statutory definition of misconduct defined above. Written documentation of employee discipline is important, as is evidence of the employee’s awareness of the employer’s policy prohibiting the conduct for which the employee was discharged.

Another notable change to the unemployment compensation law relates to employees who receive severance pay. Under the prior law, employees were allowed a double recovery in that they could be eligible for unemployment compensation benefits notwithstanding their receipt of severance pay. Under the new law, effective August 1, 2011, employees who receive severance pay are not entitled to unemployment compensation for any week that their severance pay is equal to or greater than their weekly unemployment compensation benefit amount. If however, there is a week when an employee’s severance pay is less than the weekly benefit amount, the employee is eligible for the benefit payment less the severance pay.

Further, effective January 1, 2012, the duration of benefits (which was previously 26 weeks) will be determined based on the state’s unemployment rate, which will be determined once a year. The maximum duration of benefits will now be 12 to 23 weeks. If the average unemployment rate is 5% or less, the maximum duration will be 12 weeks, but if the average unemployment rate rises above 10.5%, the maximum duration may increase up to 23 weeks.

Categories: Labor and Employment
Tags: Brett J. SchneiderAlison F. SmithUnemployment CompensationEmployee MisconductSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation LawyersFort Lauderdale Employment Law AttorneysMiami Employment Law AttorneysSouth Florida Employment Law AttorneysFort Lauderdale Labor Law AttorneysMiami Labor Law AttorneysSouth Florida Labor Law Attorneys
Author(s): Brett J. Schneider & Alison F. Smith