Burden of Proof in Florida Unemployment Compensation Hearings

After being terminated from a job, an employee may apply for Unemployment Compensation benefits through the State of Florida Agency of Workforce Administration. The employer will be notified of the application and given a chance to respond. An agency administrator will then make a decision based on the paperwork submitted by the two parties. The losing party will be advised of the decision and given the right to appeal. If an appeal is taken, the matter will be set for an evidentiary hearing before an appeals referee.

Hearings are usually conducted by telephone, with the appeals referee contacting the parties from his or her office in Tallahassee, Florida. If the employee will be represented at the hearing by an attorney, the appeals referee should be provided with this information in writing in advance, including where to contact the employee (usually at the attorney’s office).

Importantly, no matter which party is the appellant, i.e., the party challenging the administrative ruling, at the evidentiary hearing the burden of proving misconduct* to deny benefits is always on the employer. Cullen v. Neighborly Senior Services, 775 So.2d 392 (Fla. 2d DCA 2000). Not only is the burden of proof on the employer, but the proof must be by a preponderance of the evidence. Tallahassee Housing Authority v. Unemployment Appeals Commission, 483 So.2d 413 (Fla. 1986).

*”Misconduct” is the word used in unemployement compensation cases to describe the level of conduct on the part of the employee that must be proven to deny the payment of benefits. Sections 443.036(29) and 443.101 Florida Statutes.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.