Unemployment Compensation After Settling Florida Workers’ Compensation Case – The Resignation Issue

legal document.jpgIt is customary in Florida for those wishing to settle workers’ compensation cases to be required to execute a voluntary resignation document. Typical resignation language will make it virtually impossible for the former employee to maintain a viable claim for unemployment compensation benefits. To avoid this consequence, language must be added to the effect that entitlement to unemployment compensation is not being waived,

This action led to a positive outcome for the applicant in Sullivan v. Florida Unemployment Appeals Commission (1st DCA; opinion filed May 15, 2012). In its initial form, the resignation language associated with the workers’ compensation settlement was silent on the issue of unemployment compensation. Ms. Sullivan refused to sign the form. Accordingly, her lawyer added the following language:

“Employer/Carrier will not contest Claimant’s application or request for unemployment benefits.”

The employer did not contest the language, allowing it to become part of the overall workers’ compensation settlement agreement. Thereafter, Ms. Sullivan applied for UC benefits. She was denied at the hearing level and by the Unemployment Compensation Appeals Commission. However, the 1st DCA reversed those holdings, siding, instead, with Ms. Sullivan.

The reasoning behind the holding in Sullivan is set forth in Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247 (Fla. 3d DCA 2003):

Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here [the claimant] received verbal and written representations from [the employer] about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by [the employer] were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of “good cause attributable to the employer” was satisfied.

Here are examples of language found by other courts, some in different settings, that allowed the resigning employee to successfully claim UC benefits. The language can be tailored to the particular workers’ compensation situation.

“the buyout would not interfere with applications for unemployment and those who accepted the buyout would acquire layoff status.”

“Employer/Carrier will not contest Claimant’s application or request for unemployment benefits.”

The release does not include a “waiver of any rights to . . . unemployment insurance that employee may have.”

Claimants and their attorneys must understand that not every employer will allow the resignation language to be modified as was done in the Sullivan case. The refusal will be because the employer considers the consideration paid in connection with the workers’ compensation to be the full bargain, that allowing additional unemployment compensation benefits, which, ultimately, comes out of the employer’s pocket, is not part of the bargain. This makes the UC issue one that must be kept in mind during the workers’ compensation settlement negotiations.

A somewhat related issue concerns General Releases. Every workers’ compensation settlement package will include a GR. This document, which must be signed by the claimant, purports to waive every other type of claim the settling worker may have against the employer, such as for discrimination, overtime wages, and sometimes even unemployment compensation. Unless explicit language is added to the GR excluding from its terms a particular type of claim, more likely than not the claim will be considered waived.

As with the resignation language, the GR language is a matter of negotiation among the parties.

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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.

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