Florida’s New Definition of Misconduct for Unemployment Insurance Compensation Purposes – A Change for the Better

Effective July 1, 2011, the Florida Legislature enacted amendments to Chapter 443 of the Florida Statutes governing unemployment compensation benefits and taxes.  Prior to the July 1, 2011 amendment, many employers complained about an employee being able to receive unemployment benefits even though the employee was terminated for misconduct.  Why?  Because the old definition of misconduct favored the former employee, not the employer.  What follows below is the old definition of misconduct that existed prior to July 1, 2011 and the new definition of misconduct which was effective July 1, 2011.[1]

Old Definition:

“Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:

●          Conduct demonstrating willful or wanton disregard of an employer's interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or

●          Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

New Definition as of 7/1/2011

“Misconduct,” irrespective of whether the misconduct occurs at the workplace or during working hours, includes, but is not limited to, the following, which may not be construed in pari materia with each other:

●          Conduct demonstrating conscious disregard of an employer's interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.

●          Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer.

●          Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or 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 this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.

●          A violation of an employer's rule, unless the claimant can demonstrate that:

            1.         He or she did not know, and could not reasonably know, of the rule's requirements;

            2.         The rule is not lawful or not reasonably related to the job environment and performance; or

            3.         The rule is not fairly or consistently enforced.

Significantly, the new definition of misconduct eliminates the concepts of “willful or wanton disregard” and “evil design and substantial disregard of an employer’s interests” with balanced concepts, e.g. “conscious disregard” or “violation of an employer’s rule.”

Employers are well advised to review their disciplinary procedures to determine the method used to document employee disciplinary matters and ensure that every method of documentation that is used is designed to document misconduct in a manner that is consistent with Florida’s current definition of misconduct. 

Employees should be required to sign a receipt when they are given a copy of an employer’s handbook or when they receive notice of rules and regulations governing conduct in the workplace as same provides evidence that the employee knew of the rule.

Employees who are responsible for responding to unemployment claims on behalf of an employer should be advised of the change in Florida’s definition of misconduct effective July 1, 2011. 

 

A note to the reader:  This article is intended to provide general information and is not intended to be a substitute for competent legal advice.  Competent legal counsel should be consulted if you have questions regarding compliance with the law. 

Questions regarding the content of this article or past articles may be e-mailed to Christina Harris Schwinn at christinaschwinn@paveselaw.com.  To view articles written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com.  Ms. Schwinn is a partner and an experienced employment and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone:  (239) 336-6228; Telecopier:  (239) 332-2243.




[1] Florida Statute §443.036.