Florida’s new unemployment law (HB 7005), which takes effect July 1, 2011, will reduce employers’ taxes through the implementation of several features. Unemployed workers will see their benefits drop on a sliding scale from 26 to 23 weeks if the state’s unemployment rate is at least 10.5 percent to as few as 12 weeks if the jobless rate is five percent or lower. The new law also provides additional opportunities for employers to defend themselves when employees seek unemployment benefits.

How does the new law change the way employers contest unemployment claims?

The biggest change employers will experience is better guidance in responding to applications for unemployment compensation benefits. The current version of the law appeared to give an advantage to employees terminated for violations of employer’s policies. The current law required employers to prove an egregious offense by a terminated employee – that he or she had schemed with “willful and wanton” evil intent against the employer, in order to be denied unemployment compensation. The new law adjusts the standard downward in a way that allows an employer to mount a meaningful challenge to an employee who seeks unemployment. Now when an employer seeks to prove misconduct, they will only need to prove the employee had ‘conscious disregard’ rather than ‘willful and wanton’ transgressions.

Are there additional definitions of misconduct?

Yes. Misconduct now includes chronic absenteeism or tardiness. Employers should be sure that there is a definition of chronic absenteeism and tardiness in their policies. Misconduct has also been expanded to include conduct during off duty hours. Employers should not regard this expansion as a way to trap employees but rather should define in policy what off duty conduct is prohibited. For example if you intend to terminate an employee because they made a statement or engaged in conduct that brings negative publicity to the employer, the employer’s policy should put the employee on notice that termination is possible. The new law also takes into consideration employee conduct that can cause an employer to lose a license. Employers still have the obligation to monitor employee performance, abide by their own policies, and apply them consistently.

Are there any steps employers need to take to bolster their standing in unemployment hearings?

Fortunately, this law provides questions that employers should answer before terminating any employee. Do you have a policy that prohibits the conduct that is the underlying reason for the termination? Have you communicated that policy to the employee? Have you consistently applied the policy? When notifying employees about the reasons for the termination, the employer should identify the policy violated and provide the employee with the basis for the employee’s knowledge of the policy. For example, employers should have an acknowledgement form indicating receipt of the employer’s policy manual or employee handbook. The employer should review their disciplinary database to determine whether they have terminated other employees for this same policy violation. During any unemployment hearing, the employer should have a representative available to testify that the policy is consistently applied.

In the past, employees have resigned their positions and still qualified for unemployment compensation. Does the new law change that?

Not exactly. The new law provides a clearer definition than “good cause attributable to the employer”, the current standard. The new standard will provide unemployment compensation for “an employee who voluntarily resigns for any reason that would compel a reasonable person to cease working” For instance, if an employee resigns due to an illness or disability, that employee will not qualify for benefits. Employees who receive a severance package or those who are convicted of violating a law, such as stealing from the employer, will no longer be eligible for unemployment benefits. The law also specifically bars anyone serving time in prison from drawing benefits.

What other provisions of the new law benefit employers?

Hearsay evidence will be allowed to supplement or explain other evidence. This will only be allowed if the opposing party has an opportunity to review it and if the evidence is trustworthy and provides proof to support the evidence. Employers cannot simply submit documents to the hearing officer during an unemployment appeal hearing. The employer must provide a copy to the opposing side, have a person who can establish the authenticity of the document, and if there is a hearsay exception, you must establish the exception.