Florida: Behavior Outside Office May Stop Unemployment Checks

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In what some see as an assault on the unemployed, Congress is considering changes that would "dismantle" jobless benefits for millions of workers. In Florida, a law awaiting the governor's signature would deny benefits to anyone found to have engaged in misconduct; not just on-the-job, but outside the office, outside business hours and on the employee's own time.

While defenders of the Florida legislation insist only misbehavior relevant to a person's job could result a denial of benefits, others aren't so sure.

"This new legislation, if signed by our governor, is definitely going to make it easier for employers to disqualify somebody from getting unemployment," says Jack Lord, a labor law attorney with Foley & Lardner LLP in Orlando. He calls it "all part of the Florida legislature's extremely pro-business stance during this recession."

Under HB 7005, the definition of "misconduct" would be broadened to include misbehavior whether or not it occurs at the workplace or during working hours. Such misconduct for the first time includes, under certain circumstances, "violation of an employer's rule."

So, if your boss has a rule that you can't speak disrespectfully of him, and if on Saturday night, on your own time, you tell your friends that he's a good-for-nothing so-and-so, can he fire you and deny you unemployment benefits? What if your boss is prim and proper and gets wind that you, after hours, like to swear a blue streak?

Arthur Rosenberg of Florida Legal Service in Miami says courts will have to decide. "I'm not a lawyer," he says, "but to some degree this [new legislation] will determine what's permissible. What kind of behavior constitutes misconduct? What kind of rules can an employer set? If not drinking during working hours is an acceptable requirement, can your boss fire you and deny you unemployment if you drink outside of work?"

George Wentworth, senior staff attorney with the National Employment Law Center in New York, says Florida's proposed change would be "a big deal in unemployment circles. Florida seems to be giving employers a pretty wide berth as to regulating off-duty conduct. An employer can, of course, fire you for any reason. The question here is: Can you be denied benefits? "

Though the states, he says, differ in the wording of their unemployment laws and their definitions of terms, "The national standard is that the conduct needs to relate to what happens during the workday and needs to be on the premises. This opens it up more broadly."

In one sense, he points out, the proposed change isn't revolutionary: Most states' employment laws imagine a "certain reasonable sphere within which some off duty conduct could be considered" grounds to disqualify a worker from getting unemployment insurance: "If you're a school bus driver, and you get arrested off duty for DUI," says Wentworth, that might be considered misconduct related to your workplace.

Jack Lord also thinks the proposed change "sounds bigger than it is," and for the same reason: "If somebody is using drugs outside of work and not on the premises, and then they clock-in high, they can be disqualified" from getting unemployment.

Tamela Perdue, general counsel to the Associated Industries of Florida, a business group that lobbied heavily for the changes, thinks that critics of the bill have lost sight of an important fact: Even if the bill is signed into law, the onus will be on the employer to prove that the worker's off-site or after-hours misconduct "had an impact on the workplace. If I went somewhere for the weekend and did something my employer didn't like, he could not disallow my benefits unless what I did related to the workplace."

In every unemployment claim subject to dispute, she points out, "a judge's view will still be absolute. It's a mistaken belief that an employer can deny benefits. He can't just cut a person off. True, the employer can appeal; but it's the referee who decides." And the judge or referee, she emphasizes "will consider the totality of the circumstances."

What Florida is proposing, says Perdue, is not unique. Connecticut, Massachusetts, Missouri, Rhode Island, South Dakota and Washington have laws saying misconduct can be grounds for disqualifying someone from receiving benefits. Georgia and Mississippi hold that a failure to obey a company rule can be legitimate grounds.

On the federal level, a bill affecting the future of some $31 billion previously allocated for helping the long-term unemployed was voted out of the House Ways and Means Committee on Monday. It would allow the states to re-direct those funds for other purposes, including tax relief for corporations. The National Employment Law Project contends the bill would "dismantle" unemployment insurance.

Its sponsors, Rep. Dave Camp of Michigan and Sen. Orrin Hatch of Utah, say it would enhance the states' flexibility, allowing them, for example, to use some or all the money to "prevent job-destroying unemployment tax hikes" on business.

Christine Owens, executive director of NELP, finds it reprehensible. In a press release she says that last December "Congress made a promise to the unemployed that federal unemployment insurance would be maintained throughout 2011." The proposed change, she says, "breaks that promise" at a time when long-term unemployment remains at record levels and more than 4 million workers are receiving federal unemployment benefits.