Legal Question in Employment Law in Florida

Hi,

I was wondering about how long the Unemployment Appeals Council is allowed to take regarding an appeals process. I submitted the below appeal on Nov 2nd, 2009. I have called them numberous times about the time frame. The last time, they said it could take up to 90 days.... It's been past the 90 days... any advice??

Thanks for your time,

Travis

To whomever it may concern:

I am in receipt of correspondence dated October 12, 2009 from the Florida Agency for Workforce Innovation (the �Agency�), informing me that the Agency has determined, as a result of the October 9, 2009 hearing, that I am ineligible for unemployment benefits. This correspondence also provides that I may appeal the Agency�s decision by November 2, 2009. Please allow this correspondence to constitute my appeal of the Agency�s October 9, 2009 decision.

HISTORY OF THE PROCEEDINGS

On January 15, 2009, I received notice from Air Tran, Inc. (�Air Tran�) that I was being terminated for an alleged violation of Air Tran�s Attendance Policy (the �Policy�) that occurred on January 10, 2009. At that time I informed my Air Tran supervisor that I disputed the alleged violation of the Policy. Subsequent to my termination, I filed for unemployment benefits with the Agency. On April 2, 2009, I received notice from the Agency that my application for unemployment benefits were denied pursuant to Section 443, Florida Statutes, as a result of alleged misconduct associated with my employment. On April 6, 2009, I appealed the Agency�s decision. On May 4, 2009, I participated in a hearing, in which the Agency reversed their earlier decision denying my unemployment benefits, and determined that I was eligible for unemployment benefits in the amount of $3418.00. On May 11, 2009, Air Tran appealed the Agency�s decision. Another hearing was rescheduled for October 9, 2009, in the Agency reversed the May 4, 2009 decision in favor of Air Tran. I recently received correspondence from the Agency informing me that I must return the unemployment benefits received to date.

DISCUSSION

I have argued throughout these proceedings that I am eligible for unemployment benefits because the circumstances giving rise to my termination from Air Tran, Inc. do not amount to �misconduct� within the meaning of the statute. Cargill, Inc. v. Hill, 503 So. 2d 1340 (1st DCA 1987). An employee is eligible for unemployment benefits where it is determined that the employee�s actions did not constitute willful or wanton disregard for the employer�s interests. Id. at 1342. In the present case, my actions did not amount to willful or wanton disregard for my employer�s interests.

The event that precipitated my termination occurred on January 10, 2009. I made plans to be out of town on January 10, 2009. I was later scheduled to work on this date. Knowing that I would be unable to appear for work, I made arrangements with another Air Tran employee (Jen Stirn) to cover my shift. Believing in good faith that this employee would adhere to our agreement, I went out of town. That morning I received a call from my co-worker that I was on the schedule as a no call no show for my shift. At that time I contacted my supervisor on duty and explained my situation and that another employee agreed to cover my shift. I am well aware of the swap protocols and I followed through with my end of the arrangement by filling out the swap ahead of time and leaving it on the swap board (a place to coworkers to pick up other workers shifts). Jen Stirn agreed to pick up the shift if no one else had picked it up by Friday.

At the October 9, 2009 hearing, this employee corroborated my presentation of the events previously made in my statements and response before the Agency. This employee acknowledged that they had forgotten to cover the shift. At no time did I act with willful or wanton disregard toward my employer, but rather made arrangements to ensure that my employer�s needs were met. This occurrence was a good faith error in judgment, which resulted in my termination. The case cited above permits a company to have a strict attendance policy, but also argues that the employer must make their policy work with the function of their employee�s position. Id. In addition, my actions do not amount to �carelessness or negligence� of such a degree or recurrence as to manifest wrongful intent. Id. at 1341.

My attendance rate with Air Tran is not indicative of an employee who acts with �willful or wanton disregard� or �carelessness or negligence.� During the applicable time period, I only called in sick four times which does not constitute misconduct. It should be noted that these absences did not violate the Air Tran attendance policy. I also acknowledge that I had two documented tardees, but it is important to note, this was out of 225 scheduled work shifts amounting to a 99.99% on time show rate. I believe that the no show occurrence on January 10, 2009 could have been dealt with in a more reasonable manner by my Air Tran supervisor. I believe that my effort to arrange coverage of my shift, along with the employee�s statements to the Agency supporting these efforts demonstrate that my absenteeism was not due to misconduct within the meaning of the statutes.

Based on the discussion herein, I respectfully request that my unemployment benefits remain intact, and that the Agency reverse their October 9, 2009 decision in favor of Air Tran.

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