IT'S THE LAW: Unemployment compensation even if you quit

Q: I gave my boss two weeks notice that I would be quitting. He got so mad he fired me on the spot. Can I get unemployment compensation?

A: Unemployment compensation is a rather complicated system of both federal and state law. If a state adopts laws in accordance with federal requirements, it is eligible for federal funds.

In addition, Florida employers pay a payroll tax to the state of a specified percentage of total wages. In states where a qualifying employment tax is not in effect, employers must pay a wage excise tax to the federal government.

By statute, the standard rate of tax is 5.4 percent of payroll. Employers are eligible for reduction in that rate if the employer is not chargeable with any payable unemployment compensation to former employees the rate can be reduced to as low as 2.7 percent if no claims are chargeable to the employer.

It is a common misconception that the former employer actually pays the unemployment compensation to the former employee. That is not the case. It is an insurance system to soften the effect of discharge from employment.

Burden of proving eligibility for unemployment is on the applicant. To be eligible, an unemployed individual must show that he or she is eligible for unemployment compensation. To meet the preliminary standard, an employee need only show that he or she is unemployed. Benefits are available beginning the first week after unemployment began.

That does not mean that everyone who is unemployed gets unemployment compensation. If discharge was for misconduct, the applicant is disqualified. Disqualifying misconduct is more than unsatisfactory performance or unsatisfactory conduct. Even violation of an employment rule or policy is usually insufficient, unless it is repeatedly done with warning that continued violation will result in termination.

To maintain eligibility for benefits, an unemployed person must:

1. Make a claim for benefits.

2. Register for work with and report to the Agency for Work Force Innovation in accordance with its rules (an entity established under Florida law consist in finding employment).

3. Show ability and availability for work.

4. Participate in reemployment services, show proof he or she has been paid wages for work covered by the unemployment compensation law equal to 1.5 times his or her high quarter wages during his or her base period.

5. Have a valid social security number and provide proof of same.

When an employee voluntarily quits employment, he or she is usually disqualified for unemployment compensation unless it can be shown that resignation was “forced” or working conditions were intolerable. Where the employee is fired after serving notice at least one Florida Appellate Court has found the employee qualifies for unemployment compensation.

In the recent case of Porter v. Florida Unemployment Appeals Commission, Shirley Porter gave her employer a letter of termination. She was fired before the effective date of the letter. The appellate court found no Florida cases on point. Accordingly, it referenced decisions from other states.

Courts in some states have held that where an employee is fired before effective date of her resignation, the employee never left work voluntarily and therefore cannot be disqualified from unemployment compensation. In other states, courts have held that unemployment compensation under these circumstances must be limited to the period between the date of an employee’s discharge and the effective date of his resignation. The court concluded that in Florida where an employee is fired before the effective date of a resignation letter the employee never left voluntarily and is eligible for unemployment compensation benefits.

As with all legal matters, the facts and circumstances of a particular case will affect the outcome. I suggest you consult with an experienced attorney promptly to discuss the facts of your situation.

William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

© 2009 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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