Board-Certified In Construction Law By The Florida Bar

Employee’s Misconduct May Warrant Dismissal While Not Warranting Forfeiture of Unemployment Compensation Benefits


Robert S. Tanner, Esq. of Malka & Kravitz, P.A.

Under Florida law, a person is an employee at will where either the employee or the employer has discretion as to the term of employment or the term of employment is indefinite. Under the Florida Unemployment Compensation Law, an at-will employee who is discharged may be entitled to unemployment benefits.

In Robinson v. Delta Painting, Inc., 2010 WL 532802 (Fla. 3d DCA Feb. 17, 2010), Jerome Robinson (“Employee”) worked for Delta Painting, Inc. (“Employer”) as a painter apprentice. Almost a year after starting with Employer, Employee was placed on a 30 day performance improvement plan as a result of repeated absences from work. Employee successfully completed the plan. Shortly thereafter, Employer asserted that Employee dripped yellow oil-based paint onto gray waterproofing which required additional time and expense to clean. As a result, Employer issued a final warning to Employee that he would be terminated if he was messy with his work. A few days later, Employee was alleged to have again dripped paint on some pavers and was discharged. Employee sought unemployment benefits and Employer challenged the claim. The referee concluded that Employee was entitled to benefits. On appeal, the Unemployment Appeals Commission accepted the referee’s findings of fact but found that Employee was guilty of disqualifying conduct because Employee had violated the order not to be messy and, therefore, was not entitled to benefits. Employee appealed to the Third District Court of Appeal.

The appellate court found applicable that section of the unemployment statute defining “misconduct” to include “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 employer.” Against the backdrop of the general rule that “misconduct serious enough to warrant dismissal is not necessarily sufficient to warrant forfeiture or unemployment compensation benefits,” the appellate court held that two incidents of dripping paint did not arise to misconduct under the statute. Consequently, the appellate court reversed the decision of the Unemployment Appeals Commission and order reinstatement of the unemployment benefits.

The Robinson v. Delta Painting case suggests that an employer seeking to avoid liability for unemployment compensation benefits on the grounds that the employee was discharged for sufficient misconduct to disqualify the employee from entitlement to benefits, that employer should develop a record of repeated warnings to the employee and several documented instances of violations. Further, it may also be that more instances of lesser misconduct are needed where fewer instances of egregious conduct suffice.