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FL - Unemployment compensation after getting arrested

by Devin
(Coral Springs, FL)

When originally filing for unemployment benefits, I found this question nearly impossible to get an answer to: Can I collect unemployment benefits if I was terminated due to getting arrested? From nearly everyone I spoke to and every website I researched, the answer was a resounding NO. The reason everyone gave was that the employer most likely made the firing decision based on the absences rather than the arrest. I am here to tell you that this is not always the case.

Below is a timeline of events and actual correspondence between myself and the DEO.

Phase 1 - Applying:
I applied for unemployment benefits on August 27 of 2012. I received a letter stating that I qualified for the maximum ($275) per week of UC. After 3 weeks of claiming, I called to inquire about why I had not received a deposit yet. They said since I was terminated, they would need to interview me and the employer to make a decision.

Phase 2 - Interview:
After a week, the interview finally took place. The interview lasted 3 minutes and 30 seconds. She simply asked when I got arrested, what the charges were, my date of termination, and why I was terminated. I answered. When I tried to ask questions, I was told to be quiet and let her finish. I was never provided the opportunity to ask questions. After it was over, she stated she would mail the decision. I received the decision a week later. Here is what it said:

Section 1 - "The claimant quit due to being incarcerated and unable to report to work. The claimants quitting was due to personal reasons not of the fault of the employer."
Section 2 - "In accordance with section 443, Florida statutes: Benefits are not payable because: The reason for quitting was not attributable to the employer. The law requires disqualification from 03/20/2012 and until you earn $4,625".
They then stated my right to appeal.

Phase 3 - Appealing the denial:
My appeal was as follows:
"It is stated that I quit due to being incarcerated and not being able to report to work. However, the day after I was arrested a certified letter of terminated was received by my family. A reason for termination was not given. In no way did I ever quit my job."

Two weeks later, I was given a hearing date of November 14th. The telephone hearing began promptly at 2:00pm with myself, the CEO of my company, and the hearing referee attending. The hearing lasted a total of 45 minutes. My employer perjured himself multiple times, unbeknownst to the referee. Long story short, the employer tried to say I was terminated due to absences, not due to arrest. However, I was able to corner him into saying he sent the termination letter AFTER he found out I was arrested. The referee asked im if I would still be employed had I not been arrested, to which he said yes. I was told I would be notified in two days through mail of the decision.

Phase 4 - Reversal:
I received the decision letter on November 16th. It is as follows:

Issues Involved:
SEPARATION: Whether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause as defined in the statute, persuant to sections 443.101, Florida Statutes.
CHARGES TO EMPLOYMENT RECORD: Whether benefit payments made to the claimant shall be charged to the employment record of
the employer.

Finding of Fact:
The claimant began working as a Systems Administrator for the employer, a software development company, in June of 2011. The claimant last worked on March 20, 2012. The claimant was arrested and charged with ********* on March 21, 2012. Effective March 22, 2012 the claimant was separated due to the absences caused by his incarceration. As of the date of the hearing on November 14, 2012, the charges remain pending. The claimant has plead NOT GUILTY to the charges.

Conclusions of Law:
The record shows the claimant was separated due to absences caused by his incarceration. The burden of proving misconduct is on the employer. The proof must be by a preponderance of competent substantial evidence. Testimony reveals the claimant was arrested and plead not guilty to the charges that caused the absences. The claimant is not culpable for the absences caused by the incarceration. The claimant's actions do not constitute misconduct. Therefore, the claimant is qualified for the receipt of benefits.

The hearing officer was presented with conflicting testimony regarding material issues of fact and is charged with resolving these conflicts. The commission set forth factors to be considered in resolving credibility questions. These factors include the witness' opportunity and capacity to observe the event or act in question; any prior inconsistent statement by the witness; witness bias or lack of bias; the contradiction of the witness' version of events by other evidence or its consistency with other evidence; the inherent improbability of the witness' version of events; and the witness' demeanor.

Upon considering these factors, the hearing officer finds the testimony of the claimant to be more credible. Therefore, material conflicts in the evidence are resolved in favor of the claimant. The record shows the claimant was discharged for reasons other than misconduct; therefore, the employer's account will be charged.

Decision: The determination dated November 15, 2012, is REVERSED. The claimant is qualifird for the receipt of benefit payments.

Section 4 - Waiting and Whining:

After waiting a week since the notice of my reversal, I called to find out when I can expect to receive my direct deposit. They stated the lump sum deposit would take 21 days to be processed. They then hung up on me before I could say anything. 21 days is not going to work for me... I haven't received a dime since March and I have a mortgage and family to pay for. I wrote e-mails to the following offices:

-Florida Attorney General
-Office of the Inspector General
-Department of Economic Opportunity - Lead Inspector's Office
-District 22 Congressman
-Florida Senator's Office
-Florida Governor's Office

So far, the Attorney General's office and the OIG have responded to be by phone and email on the same day. Both of them say they will make inquiries to the DEO to find out what is going on and make sure they know about my case.

So what's next? All I can do is sit and wait. However, I am happy that I achieved something that seemed nearly impossible initially. From what I gathered, as long as you plead not guilty AND MAKE THAT KNOWN, they cannot use arrest absences as misconduct. If you are convicted at a later date, the employer has the right to appeal again and try for a reversal, since it would then be found as your fault.

I hope all of you in similar situations can use this as a guide to get the benefits you so deserve.

Comments for FL - Unemployment compensation after getting arrested

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Jun 08, 2017
for Tricia in Florida.
by: Chris -

I just emailed you about the coaching request you sent.

Although it may be interesting from a personal point of view, that you are a single mother with two minor children .. I don't understand why that should be pondered, or be relevant to why you should be allowed to collect benefits after being terminated for excessive absenteeism .. or a voluntary quit by way of generally, more than one no call / no shows.

Jun 08, 2017
by: Tricia

Yes it is Florida. Saint Petersburg where I reside. And yes they have postponed it a couple of times already. I am also a single mother with 2 minor children which makes it all more interesting. Thank you both Chris and Devin for writing your experiences on this website. Next scheduled hearing is June 14th. Tricia

May 31, 2017
What State Tricia?
by: Chris -

Just want to make sure this is Florida who keeps letting the employer postpone a hearing .. I'm assuming??

May 31, 2017
incarceration for unemployment
by: Tricia

This is exactly what happened to me. I still have not had the hearing because they keep postponing it. I have two teenage children and am a single parent. I am a Registered Nurse and worked for my employer for three years. Upon my incarceration I was terminated due to excessive absences. The charges I was incarcerated for were dropped after I was terminated. My denial letter stated exactly what Chris said his stated. I have been out of work now since the end of January and now tomorrow is June and I have not received a dime. I have lost my apartment and am currently residing with family.

Nov 20, 2012
response from higher powers
by: Devin

I emailed the Governor's office yesterday. Here's the response I got today:

November 20, 2012

Dear Devin:

The Office of Governor Scott has asked the Department of Economic Opportunity to respond to your email.

Our records indicate the appeals referee ruled in your favor regarding the reason for job separation from your former employer. The appeal decision has been entered today. Benefits for the weeks you have claimed plus one waiting week will process Wednesday, November 21. It takes two business days to transfer to your bank account. Due to the Thanksgiving holidays the benefits will be in your bank Tuesday, November 27. If your bank is open Friday, November 23, the benefits may be in your bank Monday, November 26. I hope this information is helpful.

Nov 19, 2012
Thank you for posting the hearing officer's decision
by: Chris

Thank you for taking the time to post a very coherent story about how and why you received unemployment benefits after being fired for being incarcerated.

The hearing decision is very telling and I wish more people would take the time to post their results.

The claim interviewer's adjudication sounds biased. Maybe they chose to ignore the flowchart of adjudication questions?

I'm not surprised you won. Seems to me, you really have your employer to thank for the certified letter sent the next day to discharge you .. and his contradictory or perjured testimony that wasn't perceived as credible.

Employers often don't get that even when arrested .. we are innocent until proven guilty.

It's not a good idea to fire an employee for being arrested alone .. rather, suspend and wait to see if the employee is convicted.

That's when it becomes a no brainer to prove the violation of the attendance policy wasn't .. not beyond the control of the employee and should of known that committing the crime could endanger their job.

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