Relevant Statutes: Misconduct Defense- “The Law”
Sexual harassment, bullying, and incidents of violence- all too prevalent
headlines stream across the screens of our daily lives time and again.
As such, it may be no surprise that these types of facts have likewise
been incorporated into recent JCC decisions regarding whether an injured
worker’s termination of employment is due to “misconduct,”
thus precluding entitlement to wage loss benefits.
Employees who are deemed to have been terminated due to “misconduct”,
as defined under Florida Statutes, are precluded from receiving temporary
partial disability (“TPD”) benefits post termination of employment
as per 440.15(4)(e),
Fla. Stat. Of note, termination for misconduct is not a defense to payment of TTD
benefits. “Misconduct” is defined under 440.02(18),
Fla. Stat., as:
(a) Conduct evidencing such willful or wanton disregard of an employer’s
interests as is found in deliberate violation or disregard of standards
of behavior which the employer has the right to expect of the employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest
culpability, wrongful intent, or evil design, or to show an intentional
or substantial disregard of an employee’s interests or of the employee’s
duties and obligations to the employer.
A determination into whether a claimant’s termination of employment
meets the criteria of a termination for “misconduct” is based
upon very specific factual findings and must be based upon competent substantial
evidence. Because misconduct is a dispositive defense for employer/carriers,
the JCC must set forth those factual findings which do not uphold a valid
Florida’s unemployment laws contain similar statutory provisions
which preclude the receipt of unemployment benefits if a worker is discharged
for “misconduct”. The unemployment statutory definition of
misconduct as per 443.036(29)(a) to (b),
Fla. Stat., also happens to be virtually identical to the worker’s compensation
definition of misconduct as per 440.02(18),
The 1st DCA has held that unemployment case law which interprets “misconduct”
is binding precedent for JCC’s decisions regarding the validity
of misconduct defense. Interestingly, however, JCC’s are not bound
by the factual findings or legal conclusions rendered in unemployment
hearings, though the findings may be considered persuasive for analysis purposes.
Termination for “good cause” is not the same as termination
for “misconduct”, with the latter being more difficult to
prove, as confirmed with recent case law and JCC decisions. A claimant
who is terminated for cause is not automatically disqualified from TPD
benefits; rather the E/C has the burden to prove that the claimant acted
intentionally or with a degree of careless or negligence that evidences
wrongful intent. In sum, the alleged conduct must be rather egregious,
i.e. jaw dropping or shocking rather than bothersome or irritating in nature.
Isolated incidents, such as those based on a violation of a rule or policy
or based on ordinary negligence, are generally not enough to justify the
defense, but can be deemed sufficient if the action is adequately or deliberately
egregious. Continued violations of company policy after repeated warnings
can be considered willful and/or deliberate and intentional, although
again, this will depend on the totality of the facts.
Recent JCC decisions and Case Law: What is “Misconduct”? Below are examples of recent cases in which the JCC found injured worker’s
sufficient enough to warrant a misconduct defense:
- Single incident of physical threat to co-worker- no misconduct found
Salus v. Island Hospitality Management and Gallagher Bassett, OJCC #17-009262, March 2,
2018: The claimant was terminated post accident for threatening another
co-worker, as prohibited per the employee handbook. The claimant got into
an argument with another employee, which resulted in his stating in a
“slightly raised voice” near the front desk, “Let’s
go outside and I’ll beat you with my bad arm”. This statement
was the sole basis for the claimant’s termination, with no prior
incidents at work.
The JCC found the claimant’s actions demonstrated poor judgment but
did not rise to the level of misconduct which would preclude entitlement
to TPD benefits. TPD benefits denied for reasons unrelated to the misconduct defense.
- Alleged act of uninvited touching of a female co-worker- no misconduct found
Ippolito v. Morton’s of Chicago/Palm Beach, LLC and Corvel Corp., OJCC#17-013893, February
21, 2018: The claimant was terminated for violating the employee handbook
by engaging in an uninvited touching of a female co-worker. The co-worker
did not testify at the final hearing. The JCC found claimant’s testimony
to be more credible than his co-worker’s deposition testimony, with
no evidence to rebut claimant’s allegation that the incident was
consensual and part of an ongoing joke between them.
The JCC found that this claimant may have been guilty of poor judgment
but did not engage in misconduct which would preclude his receipt of TPD
benefits. TPD benefits granted.
- Allegation of theft discovered post termination – no misconduct found
Toney v. Dollar General and Dollar General Corporation, OJCC#17-003648, February 5, 2018: The claimant was terminated for alleged
theft of store merchandise. However, the evidence supported a finding
that the employer's knowledge of the alleged theft did not occur until
four days after her termination. As such, the JCC concluded there was
no evidence to support a misconduct defense. TPD benefits granted.
- Single incident of failure to follow company’s “coupling”
procedure- no misconduct found
Omidvar v. Schneider National Carriers, Inc. and Liberty Insurance, OJCC#16-008029, January
9, 2018: The claimant, a truck driver was terminated for her first offence
of improperly “coupling” or attaching a cab to the hauling
trailer. The employer considered this a terminable offence because of
the risk to the motoring public. Because the claimant did not actually
attempt to drive the improperly coupled vehicle, the court found that
she correctly followed the company’s coupling procedure with regards
to an improperly coupled truck. The JCC found claimant’s testimony
credible and held that the claimant’s conduct did rise to the level
of misconduct as per applicable workers’ compensation laws. TPD
- Violation of trucking company policy regarding out of date meat products
– no misconduct found
Lee v. Winn Dixie Stores and Sedgwick CMS, OJCC#17-001764, November 30, 2016: THe claimant, a meat and seafood manger,
was terminated post accident because 5-6 pieces of product, which were
out of date by one day or displayed on the same date as the sale date,
had been found in the claimant’s display case. The JCC found no
evidence of prior written warnings for any violation or that claimant’s
actions were intentional, although the employer alleged giving verbal
warnings. The court considered that the food items in question did not
violate any law and did not result in any sick customers.
The JCC found that the claimant’s actions did not rise to the level
of “misconduct” as defined by Chapter 440, with no intentional
action take in disregard of the employer’s interests. TPD benefits granted.
- Multiple & inconsistent allegations of walking off the job, encouraging
other employees to quit, and power struggle issues with management- no
Sams v. Family Dollar and Sedgwick CMS, OJCC#17-015392, December 21, 2017: The claimant was terminated for a
number of reasons, to include walking off the job, encouraging other employees
to quit, and engaging in a power struggle with management. The court found
the evidence put forth by the employer as to the basis for her termination
was inconsistent and therefore did not support a misconduct defense. TPD
- Multiple incidents of poor job performance, including final incident
of violating personal protective equipment safety rule- no misconduct found
Shrowder v. Anchor Glass Containers and Safety National Casualty Corp., OJCC#17-0125641, December 9, 2017: The claimant was terminated on the
date of the accident due to reasons of poor job performance. The claimant
had a history of prior disciplinary actions, both verbal and written,
for job performance related issues. The final incident involved violation
of a safety rule due to the claimant retrieving personal property from
the hot end of the plant in the business of bottle assembly.
The JCC found that the while the employer had every right to terminate
the claimant, the job performance and minor safety rule violations were
not sufficient for the E/C to meet its burden of proving an affirmative
misconduct defense. The JCC noted that the job involved a fast paced,
demanding work environment. As such, claimant’s lack of attention
and other negative job performance issues did not appear to be wrongful
intent or evil design. TPD benefits granted.
- Single incident of statements made to third party regarding desire to
cause physical harm to co-worker- not misconduct
Minor v. Cory Fairbanks/PMA Insurance, (Fla. 1
DCA 2016), Case No. 1D15-160: The
claimant was terminated for statements made to her own attorney that she
felt like “punching out the lights of a co-worker”, who caused
the claimant’s work related injuries by striking her with a door.
The JCC held there was lack of evidence showing that the claimant intended
or expected that the employer would receive notice about the statements
that she made about her co-worker.
The co-worker in question testified at the final hearing that the claimant
never harmed or said that she would hurt her and thus there was no face
to face contact between them. The claimant’s treating psychiatrist
opined the claimant’s actions amounted to her merely “blowing
off steam” as opposed to being declarations of an imminent intent
to cause physical harm, to her co-worker. The JCC noted that, “Malevolent
thoughts alone, without the requisite evidence establishing an intent
to harm, do not meet the definition.” TPD benefits granted.
Other examples of conduct which has deemed sufficient to justify a misconduct
defense in the past five years include the following:
Failure to report to employer damage to pallet while operating a forklift
considered isolated incident of poor judgement-
not misconduct, (Howard v. Home
Depot and Liberty Mutual Insurance, OJCC#08,025633, February 11, 2016);
Boat operator, with 40 year history of employment, involved in isolated
incident of accepting cash tips in violation of company rule – not
misconduct, (Smith v. Dep- Wakulla Springs State Park/The Division of Risk Management, OJCC#13-005037, October 1, 2013); and
Traffic ticket for careless driving received on account of subject motor
vehicle accident considered bad judgment due to negligence. despite receipt of a ticket for another MVA while working for the employer
– not misconduct (Porter v.
Human Resources, OJCC#12-026896, June 19, 2013)
Alas! Misconduct Found: Below are examples of recent cases in which the
JCC found conduct to be sufficient enough to warrant a misconduct defense:
- Single incident of pouring grease into deli floor drain found intentional –
Rodriguez v. Walmart and Sedgwick CMS/Walmart & Sam’s Club, OJCC#16-006230, October
9, 2017: Claimant was terminated for the witnessed act of pouring grease
into the deli floor drain in violation of store policy. The claimant was
held to have knowledge of this being a violation of policy through employee
training. Her actions subjected the store to a multitude of potential
fines or other penalties based on strict environmental laws and regulations.
The JCC found that the claimant knowingly and intentionally violated company
store policy and that her actions were in substantial disregard of the
employer’s interests. The court found this claimant not very credible
in her testimony regarding the reasons for her actions. E/C met its burden
of proving misconduct. TPD benefits denied.
- Single incident of drug test showing positive results for controlled
substances - misconduct found
Anders v. Marlin James and Summit, OJCC#17-011426, January 8, 2018: The claimant was terminated for the results
of a drug test being positive for cocaine and marijuana. Although the
JCC found there was insufficient evidence for the employer to meet the
requirements of a drug free workplace defense, the employer had a policy
in effect regarding a drug free workplace. The JCC found that claimant’s
one time use of illicit drugs was sufficient for a finding of misconduct.
TPD benefits denied.
- Single incident of placing unattended purse in personal vehicle - misconduct found
Mallette v. Walmart Stores, Inc. and Sedgwick CMS, OJCC#14-027537, December 20, 2017: The claimant was terminated for failure
to comply with the company’s policy regarding found items. The claimant
found an unattended purse in a shopping cart and placed it in his own
vehicle. Although the claimant testified he was hoping to receive a monetary
award, he should not have taken possession of a purse that did not belong
to him and should have turned the purse in to the service desk. The employer
called the police and charged the claimant with a third degree felony.
The JCC found that the reason for his unemployed work status and loss of
income related to his violation of the employer’s policy regarding
found items. PTD benefits denied.
- Single incident of falsely denying prior felony convictions on employment
application – misconduct found
Flannery v. Keller Mechanical & Engineering, Inc. and Bridgefield Employers Insurance
Company, OJCC#16-006236, November 30, 2017: The claimant was terminated for falsely
denying any history of prior felony convictions on his employment application
. The JCC found the employer’s testimony that they would not have
hired the claimant if he had accurately reported his prior criminal history
to be credible. The JCC found the claimant’s testimony lacked credibility.
The E/C met its burden regarding its misconduct defense. TPD benefits denied.
Other examples of conduct which has deemed sufficient to justify a misconduct
defense in more recent years include the following:
Intentionally chasing down a shoplifter after recovering stolen property
and causing damage to store property, thus causing safety concerns to
employees and customers, plus history of prior warnings – misconduct found, (Farris v.
Sweetbay/Kash n’ Karry/Risk Management/Food Lion, LLC, OJCC#11-025479, May 31,
Drinking alcoholic beverages on the job during work hours- misconduct found, (Fulkerson v. Walmart Supercenter and Sedgwick CMS, OJCC#09-029118; and
And what to take from all this.... That drinking on the job, stealing,
committing crimes, and lying are one way tickets to a misconduct defense...
True. Seemingly, there must be a common thread from amongst these recent
One may surmise that a JCC is more likely to uphold a finding in favor
of a misconduct defense if the actions involved violations of other laws,
whether criminal, environment, or otherwise, or if the action resulted
in damage to property or physical harm to others, or if the conduct posed
a real threat to the safety of people. Those cases that did not meet the
mark seemingly did not cross that line which would bring to life a more
real and tangible threat to life and/or property, thus having potential
consequences which are more detrimental to the employer’s business
in nature instead of just plain irritating.
In sum, one should consider the consequences of the injured worker’s
actions and the impact that said actions have upon the employer, its employees,
and the public, i.e. the degree of jeopardy at stake as a direct result
of the infraction, or violation(s) of a company policy.
Consideration should be given to unemployment law which includes a greater
scope of cases addressing the type of actions which should warrant a finding
Employers should be careful to document any and all disciplinary issues,
and provide detailed findings if an employee violates a company rule or
procedure. Supervisors should be prepared to testify, if necessary, and
therefore complete written statements to help preserve evidence which
may be later needed for depositions and/or live testimony. Unemployment
records should also be kept as they may be helpful regarding an analysis
into whether a termination was justified on the grounds of misconduct.
Adjusters should be proactive in their communication efforts with the employer
and possibly defense count to obtain the details surrounding a termination
for cause. The efficient exchange of communication between parties is
our greatest ally to ensure a continued endeavor to make informed decisions
regarding employment related matters, decisions which should ultimately
serve the best interests of our businesses, work environment, and injured
workers, as well as provide benefits to workers when benefits are due
and withhold benefits when there is simply no entitlement to same.