Do I need a lawyer for an unemployment hearing in Florida?

Under Florida law, an employee who has worked full time for a sufficient period of time (as defined by Florida statutes) and is either terminated for reasons other than misconduct, laid off or resigned due to cause attributable to the employer may obtain unemployment compensation benefits (now called reemployment assistance). Generally, the easiest way to claim benefits is online through the State's Agency for Reemployment Assistance website (www.floridajobs.org). The applicant should carefully fill out the online claim form and complete all additional requirements identified by the Agency. Once a claim is filed, the applicant will be required to provide job search information to the Agency on a regular basis. Failure to provide required information to the Agency will result in a disruption or denial of benefits.

When an unemployment claim is filed, the Agency will contact the former employer to verify certain information, including whether the applicant resigned or was terminated, the reason for the separation and whether severance pay was provided. Under Florida law, the Agency can reduce benefits for the period of time in which the applicant is receiving severance pay.

After the Agency has processed the application for benefits, including receipt of information from the employer, the employee and former employee will receive a Letter of Determination indicating whether benefits will be paid. If benefits have been denied, the Agency will provide an explanation for the denial of benefits (such as separation for misconduct, voluntary resignation for reasons other than cause attributable to the employer, etc). Either the employee or former employer may appeal the Agency's determination, but must file that appeal within 20 days of the date in which the determination was issued.

If an appeal is filed, the Agency will schedule a telephonic hearing before a referee. If either party wishes to present documents as evidence at the hearing, these documents must be sent to the Agency, with a copy sent to the other party, prior to the hearing. Also, at the hearing, either party can present witness testimony. Usually, at a minimum, the employee and a representative of the employer with knowledge as to the separation will testify. The hearing is similar to a trial in that witnesses are administered an oath (sworn in), documents must be properly admitted into evidence to be considered, direct examination and cross-examination are allowed, as well as closing statements.

Although neither the employer nor employee is required to be represented by an attorney, either party may have attorney representation and, in appropriate cases, such representation is highly recommended. The appeals referee must approve the fee being paid by the employee to his or her attorney. However, at this level of appeal, the prevailing party cannot recover attorney's fees from the other party.

Following the hearing, usually within 10 days, the referee will issue a decision either affirming the Agency's determination or reversing it. The referee's decision is further appealable (within 20 days) to the Unemployment Compensation Commission. However, it is important to note that the role of the Commission is more limited in that it must accept as true all factual findings of the referee. So, for example, where there is a disputed fact between the employer and employee, and the referee concluded that the employer's facts were more believable, the Commission cannot reconsider those facts. Rather, the Commission's role is limited to determining whether the referee correctly applied the facts to the law in making the decision.

The ruling of the Commission is further appealable to a district court of appeal. However, as with the Commission, the appellate court's review is limited to consideration of whether the facts were properly applied to the law.

Because of the limitations of the appellate review process beyond the telephone hearing, it is extremely important for the parties to properly and fully establish the record with evidence so that a proper determination as to the law can be made and then reviewed on appeal. It is for this reason, in addition to others, that the parties would be well-served to retain counsel at the telephonic appeal hearing stage of the unemployment compensation process.