Archive for the ‘Unemployment Benefits’ Category

In Florida and most other states, where an employee quits his/her job, they are typically not entitled to recover unemployment benefits. The exception to this rule is where an employee quits based upon good cause attributable to the employer.

Believe it or not, in a case in Miami, a female employee quit her employment based upon the sexual harassment of her employer, and sought unemployment thereafter. Florida unemployment refused her unemployment benefits questioning whether or not she was sexually harassed because she did not go to the police or seek counseling. The employee claimed that she tolerated the actions of her employer for a while because she needed her job, but could not tolerate it any longer and quit.

The Third District Court of Appeal in Miami, thankfully, ruled that this employee was entitled to her unemployment benefits. The Court ruled, “Additionally, sexual harassment can continue for several years before the victim makes public her complaint . . . . Considering a job is usually a person’s economic lifeline, the claimant’s failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable.”

The case is 940 Lincoln Road Enterprises v. Margarita Hernandez.

If you are refused unemployment benefits by your employer or the unemployment office, seek the advice of an employment lawyer. There are many deadlines to be observed to protect your legal rights so don’t let them slip by. Feel free to call Scott Behren and the Behren Law Firm with questions on your unemployment benefits.

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Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.

Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.

The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.

The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”

The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.

The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.

The Opinion of the Third District Court of Appeal is here.

If you have questions about your right to receive unemployment benefits, feel free to call Scott Behren and the Behren Law Firm to discuss your legal rights.

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The Florida Senate and new Florida Gov Rick Scott are now seeking to restrict unemployment benefits to employees calling some recipients of these benefits “slackers and malingerers.”

State Sen. Nancy Detert, filed a bill Monday that would tighten unemployment eligibility, make it easier for businesses to deny benefits and push laid-off workers to take lower-paying jobs after they have received 12 weeks of payments.

The bill would also reduce benefits for workers who’d received severance packages and require first-time claimants to complete a workplace-skills test within 14 days of filing for benefits.

Detert, R-Venice, chairs the Senate’s Commerce and Tourism Committee.
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Under Florida unemployment law as well as that of most other states, an employee must be actively seeking and ready and wiling to accept employment in order to receive unemployment benefits. In most cases, the State of Florida asks those receiving unemployment benefits to maintain a written log or report of jobs that you have searched for during your unemployment.

However in a recent opinion released from the Florida Fourth District Court of Appeal yesterday, the court ruled that there is no requirement in the law that such written log be maintained. Olin Carilus was an employee who was terminated from his job with a convenience store. During a hearing to determine whether he was entitled to receive unemployment benefits, the hearing officer asked whether he had maintained a written log of his search for jobs. Carilus said he did not, but did testify about his search for work. Florida Unemployment refused him unemployment benefits based upon has failure to keep such log. He appealed the ruling to the Fourth District Court of Appeal that ruled that there is no requirement for an employee to keep such a written log to get unemployment benefits and that the unemployment office should have considered his testimony of his search for employment instead. The Opinion that came out yesterday is Olin Carilus v. Florida Unemployment Appeals Commission. The link to the case follows: http://www.4dca.org/opinions/Jan%202011/01-26-11/4D10-126.op.pdf.
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In light of the current unemployment rates in Florida and the country it is not suprising that more and more people are seeking unemployment benefits. As a result, more and more unemployment related issues are being hotly litigated in the courts.

One of the recent cases decided last week in Florida ruled upon whether someone who had obtained a new job, but was still participating in unpaid training, was still unemployed and entitled to receive unemployment benefits. Initially, the Florida Agency for Workforce Innovation and the the Florida Unemployment Appeals Commisison refused benefits to Jermain Kennedy on the basis that he had a new job, and was employed, even though he was still engaged in unpaid training. In fact, since some benefits had already been paid to Kennedy, the Agency was seeking repayment of the benefits paid to him.

To be entitled to unemployment benefits, a person must be unemployed. See § 443.091(1), Fla. Stat. (2002). Under section 443.036(39)(a) of the Florida Statutes, “an individual shall be deemed `totally unemployed’ in any week during which he or she performs no services and with respect to which no earned income is payable to him or her.”

In light of this statute, the Florida Appeals Court overturned the decision of the Agency and directed that Kennedy was not required to repay the benefits previously paid to him.

The opinion was issued by Florida’s First District Court of Appeal is is entitled Kennedy v. Florida Unemployment Appeals Commission.

For assistance with issues relating to being paid unemployment, you should consult with an experienced employment lawyer.

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Under unemployment laws, its is pretty clear that as a general rule if you quit your job, you can’t receive unemployment benefits. So what happens if you quit your job for a better paying job and than, thereafter, are terminated or laid off due to no fault of your own?

Well the Florida First District Court of Appeals recently addressed this issue in the case of Rachel Lakey v. Cracker Barrel and Florida Unemployment Appeals Commission. In this case. Lakey worked for Cracker Barrel for about a month during the end of 2008. She then left to go work for the Peabody Hotel for a better paying job. Sometime thereafter, Lakey was laid off from the Peabody. Presumably the ducks did not like her. Its not clear from the opinion how long she worked for the Peabody. She then applied for unemployment and was told by the State of Florida that she could not receive unemployment since she quit her job with Cracker Barrel. This decisioin was then affirmed by the Florida Unemployment Appeals Commission. So Lakey sought further appeal with the First District Court of Appeal pro se (without a lawyer). The Appeals Court reversed the decision of the State of Florida 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.”

So Ms. Lakey gets her unemployment benefits. While in this case, Ms. Lakey was able to recover her benefits representing herself, I would not advise it. There are many different levels of appeal to contest a decision made about unemployment by the State. There are also many different deadlines and if you miss one, you will find yourself with no available remedy. So if you find yourself being denied your unemployment benefits, it would probably be a good idea to speak with an employment law attorney to help you out with your issues and discuss a course of action.

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More and more these days, employees want desparately to leave their employment, but in some cases they are afraid to quit because they don’t think they will then qualify for unemployment benefits. While it is true that in most states, if you quit your job you do not remain eligible for unemployment benefits, there are circumstances where if you quit you can still recover those benefits.

Generally, when someone quits their job, they are not entitled to unemployment compensation benefits. However, if the person quits their job for GOOD CAUSE ATTRIBUTABLE TO THE EMPLOYER, then unemployment compensation benefits will be paid to the employee. Good cause attributable to the employer means that the reason you quit your job was because of something the employer did or failed to do which made continuing to work for the employer unreasonable.

Some Examples Might Include:

Employer significantly changes your work conditions such that a reasonable person would elect to leave the employment rather than continue under those conditions. These conditions include decrease in pay and change in shift from day to night;

You are experiencing harassment or discrimination, you have repeatedly complained to the employer about the situation without getting any relief;

The working conditions are so harsh, you are required to quit for health reasons;

Under Florida Law, if you are physically unable to continue in the work (even though it is not the employer’s fault) that is good cause to quit. You will need medical evidence, such as a doctor’s note, to support your case and you will need to give notice to the employer of the problem and allow him to try to give you work you can still do before quitting.

These are just some examples, but they are not exhaustive. So if you quit your job for what you believe is good cause, apply for unemployment benefits. If you are rejected, make sure to file all necessary appeals within the deadlines provided by the notices received from the unemployment office. If you unsure of what to do or how to handle the matter, contact an employment law attorney.

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As some of you may be aware, in April, Congress passed a retroactive 2 month extension of federal unemployment insurance programs and a two month of extension of time to qualify for the COBRA subsidy. These programs expire however at the end of this month.

Probably on Wednesday, the House of Representatives will be take up a bill that would extend Unemployment Insurance and COBRA through the end of December 2010. There will be fierce debates over whether to approve this extension based upon the cost of the bill and the claims that it will add to our federal deficit. As if this extension of benefits would even marginally impact our federal deficit….LOL.

Needless to say, the persons who oppose this bill are short sighted. Even if you don’t personally need the relief, if it is given to others, it helps support your community and probably will keep the foreclosure crisis from getting worse than it is.

Please contact your Congresspersons this week and let them know that this relief needs to be supported to help out all for the workers of this country. You can call the Capital switchboard at (202) 224-3121 and they will put you through to the right office. Tell them that you demand that they vote in favor of extending unemployment and COBRA benefits through the end of the year.

If you wish to click on a link that will allow you to e-mail the appropriate representative from your district go to http://www.nelp.org/page/speakout/BenefitsNOW. This is a link by the National Employment Law Project.

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First, off this post is limited to Florida law. While I generally try to provide legal information that is applicable in many states, I have no knowledge of unemployment laws in other states other than Florida. So if you have questions relating to unemployment benefits in another state, you should check with the applicable agency for your state or speak with an employment lawyer.

In Florida, in many circumstances where an employee gets fired, they are not sure whether to try to collect unemployment benefits. The answer is, YES, you should always make your claim for unemployment benefits. Go the the Florida Agency for Workforce Innovation site and you can apply online. You will be required to fill out basic information and will be advised of the decision on your unemployment some time later. You need to make sure, while you are claiming unemployment, that you are actively looking for alternative employment and keeping records of your search.

Even if you were fired, you are entitled to claim unemployment benefits under Florida law. The only time where you are not entitled to recover them is if you were fired for misconduct. In many instances the employer may try to fight your recovery of unemployment benefits by claiming that you were fired for “misconduct.” However, even if the State agrees with the employer, you should not just lay down and accept the decision. “Misconduct” under Florida law, to not be able to recover unemployment benefits is a very difficult burden to prove. You have to have been fired for really bad stuff to not be able to get your unemployment benefits. This means that just because you get fired for not doing a good job or not following an employer’s rules you still are probably entitled to recover benefits. In most cases, even if the employer has fired you for a justified reason, it does not mean they are able to deny you your unemployment benefits. Even if your employer denies your benefits, there are many levels of appeal you can take and can have a hearing to address these issues. You probably also want to speak to an attorney when/if your benefits are refused since there are deadlines you need to meet. Many attorneys, such as my office, take these matters on a flat fee basis.

The other question that is typically asked to me is whether if I quit my job I am entitled to receive unemployment benefits. The answer to that question is is it depends on whether you quit or not for “good cause.” Generally, under Florida law if an employee quits, they are not entitled to recover benefits. However, if the employee was forced to quit or the work conditions were intolerable, than the employee may still be able to recover benefits. Once again, if you apply for benefits are are refused you probably want to speak to an attorney who can research the issues applicable to your situation and give you advice and how to deal with it. There are many different levels of appeal that can be pursued with the State of Florida to preserve your benefits.

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