Williams Parker Attorneys at Law Sarasota Attorneys

Employment Law Update

Kimberly Page Walker

Reducing Unemployment Compensation Payouts

Recent revisions to Florida’s Unemployment Compensation law should result in the payment of fewer employee claims, and, presumably, lower unemployment taxes for employers. The change applies to terminations occurring after June 27, 2011.

Generally, the Florida Agency for Workforce Innovation denies unemployment benefit claims only when an employer has clearly proven that the employee resigned “without cause” or was terminated for “misconduct.” Previously, misconduct was defined as “willful or wanton” behavior by the employee, a very high standard. The revision has broadened the definition of misconduct to include an employee’s “conscious disregard” for the employer’s interests when that disregard is found to be a deliberate disregard or violation of a reasonable standard of behavior, and may include activities that did not occur at the workplace or during working hours.
Examples of misconduct which can result in a denial of benefits can include:

• Chronic absenteeism or tardiness in deliberate violation of a known policy or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence. (An employer seeking to enforce this provision should standardize a process wherein each unapproved absence results in a written reprimand or warning. This would not require the employer to terminate on the second absence, but would provide a stronger case when termination does result.)

• A deliberate violation of a Florida standard or regulation that would cause a Florida-certified or Florida-licensed employer to be sanctioned or have its license or certification suspended by the state.

• A violation of an employer’s rule, unless the employee can show that (a) the employee was unaware of the rule and could not have reasonably known about its existence or (b) the rule was unlawful or unrelated to the job or (c) the rule was not fairly or consistently enforced. (As a result of this change in the law, employers may want to put more rules in writing.)

We will watch the Agency for Workforce Innovation to see what they do with these revisions in practice.

New Poster Requirement for Employers

By January 31, 2012, most private-sector employers, including those without unions, are required to post a notice of employee rights under the National Labor Relations Act (“NLRA”). The National Labor Relations Board (“NLRB”) issued this controversial ruling on August 25, 2011. The NLRB plans for the free 11x17 inch notice (or two 8x11 notice pages taped together) to be available for downloading or ordering from www.NLRB.gov by November 1st. The notice should be posted with other required employee notices. Employers with policies available electronically are required to also post a copy of the notice electronically. If at least 20% of the employees are not proficient in English, the employer must also post versions of the notice in all appropriate languages for which the NLRB publishes translated notices. Federal Contractor special notices already meet these requirements. Failure to report the notice may be considered an unfair labor practice. However, the NLRB does not have authority to levy fines.

E-Verify Required for Doing Business with the State

Governor Scott has mandated the use of E-Verify for most entities doing business with the State of Florida and for those doing business with state contractors. Prior to these Orders, private employers could choose whether to use E-Verify. Now, employers contracting with any state agency reporting to the Governor or to a subcontractor of such an agency may find that new contracts contain language mandating their use of E-Verify.

E-Verify is an Internet-based system that compares information from an employee or applicant’s Form I-9, Employment Eligibility Verification, to data from the U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. If the information matches, the individual is eligible to begin work. If the information does not match, E-Verify alerts the employer and the individual of the “mismatch.” The individual has eight days to contact the Social Security Administration (SSA) and must visit the SSA office in person to initiate an effort to address the mismatch. During the period in which SSA and the individual continue to address the mismatch, the employer is prohibited from taking any action against the individual, including delaying start dates or training, reducing hours, or terminating employment. Employers have reported a feeling of limbo and lack of control while waiting to decide whether the candidate will be cleared.

A governmental report quoted a mismatch rate of 3.9% with 0.4% eventually being cleared U.S. citizens or those otherwise legally permitted to work in the U.S. The remainder are reported to have given up or have been rejected as illegal.

The language of Governor Scott’s initial Executive Order on the subject, 11-02, appeared to inadvertently go beyond the reach of any state or federal E-Verify legislation by requiring the use of E-Verify for “all persons” working with such entities, not just new hires. In June, 2011, Governor Scott revised the Order in an effort to fix the most significant issues with the legislation. The revised order limited the requirement to all new employees hired during the contract term. Unfortunately, this language continues to cause confusion by suggesting that the order may extend to all newly-hired employees working for the contractor or subcontractor, including those not working on the specific state contract. However, it is unclear. Thus, employers contracting with a state subcontract may be required to sign a contract agreeing to comply with E-Verify’s requirements for all newly-hired employees, regardless of whether the newly hired employee works on the state contract or subcontract.

Kim Walker, Board Certified Labor & Employment Attorney, can be reached at kwalker@williamsparker.com or (941) 329-6628.

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