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Unemployment Hearings and Appeals

In the current electronic age, workers are tuned into just about every right that they can possibly assert against their employer.  If they are not, they quickly become informed through basic internet searches.  One right that most employees are cognizant of is the right to seek unemployment compensation benefits upon the cessation of their employment.  To do this, all an employee has to do is file for unemployment compensation benefits upon separation with employment.  You need to know that we vigorously defend unemployment claims made by employees, and if one of your employees files for unemployment compensation, you should contact Mr. Zinchiak for a free consultation

Typically, employees do not stop with the mere filing of unemployment benefits, but rather typically follow up with lawsuits.  These lawsuits are typically brought under the state' workers' compensation statute (claiming workplace injury), the Fair Labor Standards Act (claiming unpaid overtime and/or minimum wages), and/or discrimination statutes (claiming race, sex, age, disability, etc.).  Most often, these suits are frivolous, and designed to unduly presure the employer in paying money rather then spending time and money defending such suits.  Unfortunately, we now see many cases in which the former employee quit (yet, files for unemployment compensation benefits claiming that they were fired), then files a workers' compensation case (even though the employee never suffered any workplace injury), and then files for overtime (even though the employee was either paid it or not entitled to it, and never made any inquiry of the employer about being owed any overtime or other wages).  This is becoming a common refrain in employment litigation, and these various actions against the employer are usually not filed at the same time, but rather individually at different times (months apart).  Yes, you read it correctly, these individuals are bringing workers' compensation cases months after they quit claiming for the first time that they were really injured on the job.

Some basic facts concerning unemployment compensation benefits in the State of Florida are set forth below.  First, the employee must have completed the employer' ninety (90) probationary period or they are not entitled to unemployment benefits.  However, even if they have not completed the probationary period, they can still file for benefits and it is up to the employer to assert this defense.  Second, the employee must have been fired to receive unemployment benefits, and if they quit, they are not entitled to unemployment benefits.  However, again, it is up to the employer to assert this defense.  Unfortunately, in this day, as set forth above, many employees are claiming entitlement to these benefits even though they were not fired.  Third, if the individual seeking unemployment benefits was an independent contractor, as opposed to an employee, they are not entitled to unemployment benefits.  Fourth, even if the employee was fired, they are not entitled to benefits if they engaged in misconduct that was the reason for their termination.  What constitutes "misconduct" is often hotly debated in these cases.  However, acts such as stealing from the employer, engaging in insubordination, and acting against the employer' best interests in front of other employees and/or customers typically constitutes misconduct, particularly if there are repeated violations of the employer' work rules or policies and procedures that have been documented or can be corroborated through witnesses.  The definition of "misconduct" was changed in Florida as of July 24, 2011, to make the employer' job of proving misconduct much more difficult than it was before.

Our firm has handled many unemployment compensation matters, and has almost always been successful, even after the change in the definition of "misconduct".  

The procedural process for unemployment benefits (and if they are awarded appealing that decision) is straightforward in the State of Florida.  First, it is decided preliminarily (typically after input from both the employee and the employer) whether the employee is entitled to benefits (this is when the defenses need to be vigorously asserted).  Second, whoever loses at the preliminary stage can then appeal that decision (the appeal must be filed within twenty (20) days), and the case then is assigned to an appeals referee, who conducts a telephonic hearing.  This hearing is critical for a number of reasons, and you need counsel at this hearing.  Both sides are allowed to present evidence, and their attorneys are allowed to question witnesses.  Thus, the employee is subject to cross-examination by us.  The appeals referee then makes a decision.  If the losing side desires to appeal further, the next step is to appeal to the agency (Unemployment Appeals Commission).  If the losing side desires to appeal further, the next step is to file an appeal with either the First District Court of Appeal or the district court of appeal in the geographic location in which the employment arose--this decision is the appealing party' decision.  

Finally, unemployment compensation hearings are extremely important and an attorney should be retained, because valuable information about any future workers' compensation case, overtime case, or discrimination case can be (and almost always is) discovered.  That is why you should hire our firm to handle these matters.