EMPLOYER PREVAILS BEFORE FLORIDA UNEMPLOYMENT APPEALS COMMISSION

Attorney Peter Mavrick’s client, a condominium association, recently prevailed in an appeal before the Florida Unemployment Appeals Commission. The appeal was from an adverse decision made by an unemployment appeals referee following the termination of the condominium association manager. The manager was terminated for what appeared to be disloyalty and lack of candor to her employer.

As part of her job duties, the manager/employee was supposed to obtain and maintain documentation from construction contractors to protect the condominium association from legal liabilities. The documentation was supposed to show each construction contractor was lawfully licensed as a contractor, had liability insurance, and was lawfully permitted to perform such work for the condominium association. The manager/employee had recommended a particular construction contractor based on her allegedly arms-length business dealings with him in the past. Problems arose with the contractor, and the employer asked the manager/employee for the documentation she was supposed to maintain, i.e., the proof of contractor license, liability insurance, and work permit. The manager/employee contended she had gotten the documentation before the work project commenced, but could not locate the documents. The employee contended the documents were misplaced. The employer terminated the manager/employee. Later the employer discovered that the now former manager/employee had been using the construction contractor’s personal residence as her personal address. The employer also independently researched the existence of a license for the construction contractor and could find nothing in the public records.

In representing the employer in the appeal, Mr. Mavrick argued that the Referee made two legal errors that invalidated the decision against the employer and required a new hearing. First, the unemployment appeals Referee refused to consider evidence that the employee had more than a mere “arms-length” relationship with the construction contractor, as reflected in the employee’s use of the construction contractor’s home address as her own address too. On appeal, Mr. Mavrick argued that this evidence would be relevant to the bias and integrity of the employee. The second error was the unemployment appeals Referee’s decision that the employer failed to tender admissible evidence of the employee’s misconduct, and instead relied solely on hearsay. However, in the appeal Mr. Mavrick argued that the Referee overlooked an exception to the rule barring hearsay evidence; that exception allows admissibility of the absence of a record that would otherwise be expected to be contained in the employer’s business records. Specifically, the absence of copies of the contractor’s license, liability insurance, and work permit should be admissible to show those records were never obtained by the former manager/employee because her job required her to get and maintain those records. Mr. Mavrick argued on appeal that if the employee was dishonest about getting those records from the construction contractor in order to help him get remuneration from the condominium association, then it would constitute gross misconduct and dishonesty. Florida’s unemployment compensation statute defines the term “misconduct” to include “willful or wanton disregard of an employer’s interests and to be a deliberate violation or disregard of the standards of behavior which the employer has the right to expect of his or her employee.” Mr. Mavrick argued that due to those two legal errors, the Referee never properly considered or weighed the evidence and the decision must be reversed.

The Unemployment Appeals Commission ruled in favor of the employer.

Attorney Peter Mavrick practices in the area of employment and labor law, defending small, medium, and large businesses in South Florida. His practice also includes a great deal of advising management and human resource departments regarding employment law issues, including employee discipline, demotions, and terminations. His office is located in Fort Lauderdale, Florida. This article is intended for information purposes only and is not a substitute for legal advice tailored to a particular client’s situation. Peter Mavrick can be reached at: Website: mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: pmavrickesq@yahoo.com.