When you need some good advice

August 2022
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Waiver and Release - On Florida’s Unemployment Benefits
Filed under: General
Posted by: RPLaw Firm @ 2:56 pm

In today’s economy, most people are
familiar with unemployment benefits.  Record highs are being reported
monthly of new applicants seeking state unemployment checks or qualifying
for federal extensions of benefits. For those who have not been
educated about Florida’s unemployment compensation rules and rights,
unemployment benefits are given to qualified claimants who have been
involuntarily separated from their employment.  In common language,
employees who have been terminated, released, or laid off not due to
resignation or misconduct.[1]


Following that general
explanation of qualification for unemployment compensation, several
employees have questions in regards to when employers asked them to
resign to reduce staff and overhead cost. Can a force resignation by
equivalent to being laid off? Sometimes. Certain specific facts need to
be present for a claimant to have a chance at getting unemployment


The most convenient set of facts for an
employee is that there is no severance agreement involved and the
employer reports that they are not going to challenge the awarding of
benefits and actually do not.  However, the majority of employers aware
of old adage of “the one with the most documentation wins.”  An employer
who has documents that the employee voluntarily resigned has the better
chance for victory in most types of litigation especially an unemployment
appeal hearing.


If a release or severance agreement is a
requirement of the separation the separation terms, the best scenario is if the release
does not include any language that expresses that the employee is
“voluntarily resigning,” or any combination of words similar to that
phrase. An agreement absent of that type of terminology will help
support a claimant’s position that the claimant is entitled to Florida’s
unemployment compensation.  It implies that the separation was solely the
result of the employer’s decision and in the employer’s best interest. 


if the separation agreement does include voluntary separation, which
mostly likely it will, there are other acts and behaviors performed by
employer for a claimant to be successful in an unemployment appeal.  Such
actions included, either verbally or a written expression that the
claimant would still be eligible or entitled to benefits under the state
of Florida’s rules and laws.  Also, the employer, by and through its agents, guarantees the employee will get the benefits even if the
employee signs the release.  The final act must be that the employee
believed and relied on the promises of the employer that the employee
would qualify for the unemployment compensation even after entering the
separation agreement.  Florida courts cases have ruled that under these
circumstances, a claimant acted in good faith based on the acts of the
employer and is entitled to benefits.[2]


If a claimant
does not have those sets of facts and an employee knowingly enter into a
separation agreement, severance agreement, or release which expresses
that the employee voluntarily resigned, the employee does not qualify
for unemployment compensation in Florida.  This scenario occurs
frequently in workers’ compensation settlements.  The employer/carrier
will have language in the agreement that the injured employee is
resigning as a term of the settlement. Sometimes they will add extra
settlement monies to assure that this term is agreeable.


both employees and employers need to be careful of is waivers of
unemployment benefits.  On occasions, employers will terminate an
at-will employee and will attempt to avoid unemployment taxes being
charged to its account.  During the notice of termination, the employer
will ask the newly fired employee to sign documents prepared by the
employer.  At times, the document will express that the employee has
received all wages. Other documents will be just confirming that the
employee knows why the employee is being terminated.  Some documents
actually contain language that states that the employee agrees not
to apply for or is waiving rights to be eligible for unemployment
benefits.  In Florida, it is against the law to have any agreement “to
waive, release, or commute” an employee’s rights to unemployment
benefits.[3]   Any agreement that does is void.  Any employer, officer,
or agent of an employer that has an employee enter an agreement as such
has committed a second degree misdemeanor.


Florida laws
and courts have made it clear that the rules and laws should be
construed to provide benefits to the claimant.  However, there are ways
that prevent employees from receiving monthly benefits after separation
from employment.  When it comes to unemployment benefits, waivers and
releases are stumbling blocks for both employers and employees.  While
in most situations, the waiver and release is a complete
disqualification of benefits.  Employees have some leverage and defenses
to gain benefits.



[1] FS
443.036(29)“Misconduct”includes, but is not limited to, the following,
which may not be construed inpari materia with each other (a)Conduct
demonstrating willful or wanton disregard of an employer’s interests and
found to be a deliberate violation or disregard of the standards of
behavior which the employer has a right to expect of his or her employee;
or (b) Carelessness or negligence to a degree or recurrence that
manifests culpability, wrongful intent, or evil design or shows an
intentional and substantial disregard of the employer’s interests or of
the employee’s duties and obligations to his or her employer.


Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247
(Fla. 3d DCA 2003) dictates that, where the employer provides assurance
to its employees considering taking a buyout that acceptance of the
buyout will not affect their eligibility for unemployment benefits, a
claimant who accepts the buyout will have a good claim for UC benefits
because the employer does not have totally clean hands.

[3] Florida Statute §443.041.

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