Bill Text: FL S0222 | 2013 | Regular Session | Introduced
Bill Title: Reemployment Assistance
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2013-05-03 - Died in Appropriations Subcommittee on Transportation, Tourism, and Economic Development, companion bill(s) passed, see CS/CS/HB 7007 (Ch. 2013-39) [S0222 Detail]
Download: Florida-2013-S0222-Introduced.html
Florida Senate - 2013 SB 222
By Senator Detert
28-00402-13 2013222__
1 A bill to be entitled
2 An act relating to reemployment assistance;
3 transferring the functions of the Reemployment
4 Assistance Appeals Commission to the Department of
5 Economic Opportunity; providing legislative intent
6 with respect to the transfer of programs and
7 administrative responsibilities; providing for a
8 transition period; requiring the department to
9 coordinate the development and implementation of a
10 transition plan; authorizing the Governor to transfer
11 funds and positions between agencies upon approval
12 from the Legislative Budget Commission to implement
13 the act; requiring that the Governor submit
14 information and obtain waivers as required by federal
15 law; providing that a transfer includes the transfer
16 of any records and unexpended balances of certain
17 funds; requiring the successor organization to be the
18 custodian of certain property; amending s. 443.012,
19 F.S.; deleting reference to the Reemployment
20 Assistance Appeals Commission and replacing it with
21 the Regional Appeal Offices; requiring the Department
22 of Economic Opportunity to create a regional appeal
23 office at each regional workforce board; requiring the
24 regional workforce board to appoint appeals referees;
25 providing that alternates may be used if a conflict of
26 interest arises; requiring each regional workforce
27 board to appoint a review panel; providing for
28 membership; providing for a general counsel; providing
29 for certain staggered terms for members; requiring the
30 department to establish a central appeals office for
31 recordkeeping; requiring the department to post final
32 orders online; requiring the department to create a
33 seal; providing for job performance appraisals;
34 amending ss. 443.151, 120.80, 443.0315, 443.041,
35 443.101, 443.141, and 443.171, F.S.; revising
36 references to the commission; deleting duplicative
37 language; providing for appeals to be filed at the
38 regional appeal office located at the regional
39 workforce board servicing the claimant’s last
40 principal place of business; providing for electronic
41 filing of appeals; providing that an appeal of an
42 appeals referee decision be made at the review panel
43 located at the same regional appeal office; providing
44 that an appeal of a review panel decision be made at
45 the district court of appeal where the order was
46 issued; requiring the department to enter an order in
47 accordance with decisions of the district court of
48 appeal; amending s. 20.60, F.S.; deleting a subsection
49 relating to the department’s power over the
50 Reemployment Assistance Appeals Commission; amending
51 ss. 110.205 and 443.036, F.S.; deleting references to
52 the commission; providing examples of misconduct;
53 amending s. 443.091, F.S.; limiting a claimants use of
54 the same prospective employer to meet work search
55 requirements; providing an exception; providing that
56 work search requirements do not apply to individuals
57 required to participate in reemployment services;
58 amending s. 443.131, F.S.; requiring the tax
59 collection service provider to calculate a certain
60 additional rate; providing for when an assessment may
61 not be made; requiring assessments to be available to
62 pay interest on federal advances; requiring certain
63 excess funds to be transferred to the Unemployment
64 Compensation Trust Fund after a certain time period;
65 deleting the provision referring to crediting employer
66 accounts; providing an expiration date; amending s.
67 443.1317, F.S.; providing that the department shall
68 have ultimate authority over administration of the
69 Reemployment Assistance Program; providing an
70 effective date.
71
72 Be It Enacted by the Legislature of the State of Florida:
73
74 Section 1. Type two transfer from the Reemployment
75 Assistance Appeals Commission.—
76 (1) All powers, duties, functions, records, offices,
77 personnel, associated administrative support positions,
78 property, pending issues, existing contracts, administrative
79 authority, administrative rules, and unexpended balances of
80 appropriations, allocations, and other funds relating to the
81 Reemployment Assistance Appeals Commission are transferred by a
82 type two transfer, as defined in s. 20.06(2), Florida Statutes,
83 to the Department of Economic Opportunity.
84 (2) Any binding contract or interagency agreement existing
85 before October 1, 2013, between the Reemployment Assistance
86 Appeals Commission, or an entity or agent of the commission, and
87 any other agency, entity, or person shall continue as a binding
88 contract or agreement for the remainder of the term of such
89 contract or agreement on the successor department, agency, or
90 entity responsible for the program, activity, or functions
91 relative to the contract or agreement.
92 (3) All powers, duties, functions, records, offices,
93 personnel, property, pending issues, and existing contracts,
94 administrative authority, administrative rules, and unexpended
95 balances of appropriations, allocations, and other funds
96 relating to the Reemployment Assistance Appeals Commission which
97 are not specifically transferred by this section are transferred
98 by a type two transfer, as defined in s. 20.06(2), Florida
99 Statutes, to the Department of Economic Opportunity.
100 Section 2. (1) It is the intent of the Legislature that the
101 changes made by this act be accomplished with minimal disruption
102 of services provided to the public. To that end, the Legislature
103 directs that, notwithstanding the changes made by this act, the
104 Reemployment Assistance Appeals Commission may continue with
105 such powers, duties, functions, records, offices, personnel,
106 property, pending issues, and existing contracts as provided in
107 Florida Statutes 2012 until September 30, 2013. Appeals filed
108 before October 1, 2013, shall be administered as provided in
109 Florida Statutes 2012; appeals filed on and after October 1,
110 2013, shall be administered in accordance with this act. The
111 Legislature believes that a transition period between the
112 effective date of this act and October 1, 2013, is appropriate
113 and warranted.
114 (2) The Department of Economic Opportunity shall coordinate
115 the development and implementation of a transition plan that
116 supports the implementation of this act.
117 (3) Notwithstanding ss. 216.292 and 216.351, Florida
118 Statutes, upon approval by the Legislative Budget Commission,
119 the Executive Office of the Governor may transfer funds and
120 positions between agencies to implement this act.
121 (4) Upon the recommendation and guidance of the Department
122 of Economic Opportunity, the Governor shall submit in a timely
123 manner to the applicable federal departments or agencies any
124 necessary amendments or supplemental information concerning
125 plans that the state is required to submit to the Federal
126 Government in connection with any federal or state program. The
127 Governor shall seek any waivers from the requirements of federal
128 law or rules which may be necessary to administer the provisions
129 of this act.
130 (5) The transfer of any program, activity, duty, or
131 function under this act includes the transfer of any records and
132 unexpended balances of appropriations, allocations, or other
133 funds related to such program, activity, duty, or function.
134 Unless otherwise provided, the successor organization to any
135 program, activity, duty, or function transferred under this act
136 shall become the custodian of any property of the organization
137 that was responsible for the program, activity, duty, or
138 function immediately prior to the transfer.
139 Section 3. Section 443.012, Florida Statutes, is amended to
140 read:
141 443.012 Regional Appeal Offices Reemployment Assistance
142 Appeals Commission.—
143 (1) The Department of Economic Opportunity shall establish
144 an appeal office at each regional workforce board as defined
145 under s. 445.007 at the location where the regional workforce
146 board executive director is located. The department shall
147 provide an appeals referee and review panel with proper
148 facilities and assistance for the execution of their functions.
149 Administrative staff of the regional appeal offices shall serve
150 both an appeals referee and review panel and shall be employees
151 of the department, in accordance with s. 443.171(3).
152 (2)(a) Each regional workforce board shall, pursuant to
153 qualifications established by the department, appoint one or
154 more impartial salaried appeals referees to hear and decide
155 appealed claims. Such a referee shall be an employee of the
156 department, in accordance with s. 443.171(3).
157 (b) A person may not participate as an appeals referee in
158 any case in which she or he has a conflict of interest. The
159 regional workforce board may designate alternates to serve in
160 the absence or disqualification of an appeals referee on a
161 temporary basis. These alternates must have the same
162 qualifications required of appeals referees.
163 (3)(a) Each regional workforce board shall appoint a review
164 panel to review appeals from the decisions of the regional
165 appeals referee. There is created within the Division of
166 Workforce Services of the Department of Economic Opportunity a
167 Reemployment Assistance Appeals Commission. The review panel
168 commission is composed of a chair and two other members selected
169 from the membership of the regional workforce board and
170 appointed by the board chair Governor, subject to approval of a
171 majority vote of the regional workforce board, a quorum having
172 been established confirmation by the Senate. Only one appointee
173 may be a representative of employers, as demonstrated by his or
174 her previous vocation, employment, or affiliation; and only one
175 appointee may be a representative of employees, as demonstrated
176 by his or her previous vocation, employment, or affiliation.
177 (a) The chair shall devote his or her entire time to
178 commission duties and is responsible for the administrative
179 functions of the commission.
180 (b) A regional workforce board The chair has authority to
181 appoint a general counsel and other personnel to carry out the
182 duties and responsibilities of the review panel, pursuant to
183 qualifications established by the department commission. The
184 general counsel must serve the panel in the review process. The
185 general counsel must be admitted to practice law in Florida, and
186 must have, at a minimum, 1 year of experience in conducting
187 judicial or administrative hearings or 5 years of experience in
188 the practice of law. The general counsel shall be an employee of
189 the department, in accordance with s. 443.171(3).
190 (c) The chair must have the qualifications required by law
191 for a judge of the circuit court and may not engage in any other
192 business vocation or employment. Notwithstanding any other law,
193 the chair shall be paid a salary equal to that paid under state
194 law to a judge of the circuit court.
195 (d) The remaining members shall be paid a stipend of $100
196 for each day they are engaged in the work of the commission. The
197 chair and other members are entitled to be reimbursed for travel
198 expenses, as provided in s. 112.061.
199 (e) The total salary and travel expenses of each member of
200 the commission shall be paid from the Employment Security
201 Administration Trust Fund.
202 (c)(2) The members of the review panel commission shall be
203 appointed to staggered terms of 2 4 years each. A vacancy for
204 the unexpired term of a member shall be filled in the same
205 manner as the original appointment. The presence of two members
206 constitutes a quorum for any called meeting of the review panel
207 commission.
208 (3) The commission has all authority, powers, duties, and
209 responsibilities relating to reemployment assistance appeal
210 proceedings under this chapter.
211 (4) The property, personnel, and appropriations relating to
212 the specified authority, powers, duties, and responsibilities of
213 the commission shall be provided to the commission by the
214 Department of Economic Opportunity.
215 (5) The commission is not subject to control, supervision,
216 or direction by the Department of Economic Opportunity in
217 performing its powers or duties under this chapter.
218 (6) The commission may make expenditures, including
219 expenditures for personal services and rent, for law books,
220 books of reference, periodicals, furniture, equipment, and
221 supplies, and for printing and binding as necessary in
222 exercising its authority and powers and carrying out its duties
223 and responsibilities. All such expenditures of the commission
224 shall be allowed and paid as provided in s. 443.211 upon the
225 presentation of itemized vouchers approved by the chair.
226 (7) The commission may charge fees for publications,
227 subscriptions, and copies of records and documents. These fees
228 must be deposited in the Employment Security Administration
229 Trust Fund.
230 (4)(8) The department shall establish a central appeal
231 office for the purposes of maintaining commission shall maintain
232 and keep open during reasonable business hours an office in
233 Tallahassee for the purpose of transacting its business, at
234 which office the commission shall keep its official records and
235 papers. The department shall also post final orders of the
236 review panels online The offices shall be furnished and equipped
237 by the commission. The commission may hold sessions and conduct
238 hearings at any place within the state.
239 (9) The commission shall prepare and submit a budget
240 covering the necessary administrative cost of the commission.
241 (5)(10) The department shall establish commission shall
242 have a seal for authenticating all review panel its orders,
243 awards, and proceedings, upon which shall be inscribed the words
244 “State of Florida–Reemployment Assistance Review Panel Appeals
245 Commission–Seal,” and it shall be judicially noticed.
246 (6) The regional workforce board shall submit to the
247 department information concerning the job performance of all
248 designated employees of the department at the regional appeal
249 office. The department shall consider any such information
250 submitted by the regional workforce board in conducting
251 performance appraisals of the employees.
252 (11) The commission has authority to adopt rules under ss.
253 120.536(1) and 120.54 to administer the provisions of law
254 conferring duties upon it.
255 (12) Orders of the commission relating to reemployment
256 assistance under this chapter are subject to review only by
257 notice of appeal to the district courts of appeal in the manner
258 provided in s. 443.151(4)(e).
259 Section 4. Paragraph (e) of subsection (3), subsection (4),
260 and paragraph (b) of subsection (5) of section 443.151, Florida
261 Statutes, are amended to read:
262 443.151 Procedure concerning claims.—
263 (3) DETERMINATION OF ELIGIBILITY.—
264 (e) Redeterminations.—
265 1. The department may reconsider a determination if it
266 finds an error or if new evidence or information pertinent to
267 the determination is discovered after a prior determination or
268 redetermination. A redetermination may not be made more than 1
269 year after the last day of the benefit year unless the
270 disqualification for making a false or fraudulent representation
271 under s. 443.101(6) is applicable, in which case the
272 redetermination may be made within 2 years after the false or
273 fraudulent representation. The department must promptly give
274 notice of redetermination to the claimant and to any employers
275 entitled to notice in the manner prescribed in this section for
276 the notice of an initial determination.
277 2. If the amount of benefits is increased by the
278 redetermination, an appeal of the redetermination based solely
279 on the increase may be filed as provided in subsection (4). If
280 the amount of benefits is decreased by the redetermination, the
281 redetermination may be appealed by the claimant if a subsequent
282 claim for benefits is affected in amount or duration by the
283 redetermination. If the final decision on the determination or
284 redetermination to be reconsidered was made by an appeals
285 referee, a review panel the commission, or a court, the
286 department may apply for a revised decision from the body or
287 court that made the final decision.
288 3. If an appeal of an original determination is pending
289 when a redetermination is issued, the appeal unless withdrawn is
290 treated as an appeal from the redetermination.
291 (4) APPEALS.—
292 (a) Appeals referees.—The Department of Economic
293 Opportunity shall appoint one or more impartial salaried appeals
294 referees in accordance with s. 443.171(3) to hear and decide
295 appealed claims. A person may not participate on behalf of the
296 department as an appeals referee in any case in which she or he
297 is an interested party. The department may designate alternates
298 to serve in the absence or disqualification of any appeals
299 referee on a temporary basis. These alternates must have the
300 same qualifications required of appeals referees. The department
301 shall provide the commission and the appeals referees with
302 proper facilities and assistance for the execution of their
303 functions.
304 (b) Filing and hearing.—
305 1. The claimant or any other party entitled to notice of a
306 determination may appeal an adverse determination to an appeals
307 referee within 20 days after the date of mailing of the notice
308 to her or his last known address or, if the notice is not
309 mailed, within 20 days after the date of delivering the notice.
310 Notice of appeal must be filed with the regional appeal office
311 located at the regional workforce board servicing the area of
312 the claimant’s last principal place of business. Appeals filed
313 with the incorrect regional appeal office may be forwarded to
314 the appropriate office upon timely request of a party to the
315 appeal. Appeals may be filed electronically through a central
316 system or in a manner otherwise prescribed by the department.
317 2. Unless the appeal is untimely or withdrawn or review is
318 initiated by the review panel commission, the appeals referee,
319 after mailing all parties and attorneys of record a notice of
320 hearing at least 10 days before the date of hearing,
321 notwithstanding the 14-day notice requirement in s.
322 120.569(2)(b), may only affirm, modify, or reverse the
323 determination. An appeal may not be withdrawn without the
324 permission of the appeals referee.
325 3. However, if an appeal appears to have been filed after
326 the permissible time limit, the regional appeal office of
327 Appeals may issue an order to show cause to the appellant which
328 requires the appellant to show why the appeal should not be
329 dismissed as untimely. If, within 15 days after the mailing date
330 of the order to show cause, the appellant does not provide
331 written evidence of timely filing or good cause for failure to
332 appeal timely, the appeal shall be dismissed.
333 4. If an appeal involves a question of whether services
334 were performed by a claimant in employment or for an employer,
335 the referee must give special notice of the question and of the
336 pendency of the appeal to the employing unit and to the
337 department, both of which become parties to the proceeding.
338 5.a. Any part of the evidence may be received in written
339 form, and all testimony of parties and witnesses shall be made
340 under oath.
341 b. Irrelevant, immaterial, or unduly repetitious evidence
342 shall be excluded, but all other evidence of a type commonly
343 relied upon by reasonably prudent persons in the conduct of
344 their affairs is admissible, whether or not such evidence would
345 be admissible in a trial in state court.
346 c. Hearsay evidence may be used for the purpose of
347 supplementing or explaining other evidence, or to support a
348 finding if it would be admissible over objection in civil
349 actions. Notwithstanding s. 120.57(1)(c), hearsay evidence may
350 support a finding of fact if:
351 (I) The party against whom it is offered has a reasonable
352 opportunity to review such evidence prior to the hearing; and
353 (II) The appeals referee or special deputy determines,
354 after considering all relevant facts and circumstances, that the
355 evidence is trustworthy and probative and that the interests of
356 justice are best served by its admission into evidence.
357 6. The parties must be notified promptly of the referee’s
358 decision. The referee’s decision is final unless further review
359 is initiated under paragraph (b) (c) within 20 days after the
360 date of mailing notice of the decision to the party’s last known
361 address or, in lieu of mailing, within 20 days after the
362 delivery of the notice.
363 (b)(c) Review by review panel commission.—The review panel
364 commission may, on its own motion, within the time limit in
365 paragraph (a) (b), initiate a review of the decision of an
366 appeals referee located at the same regional appeal office. The
367 review panel commission may also allow the department or any
368 adversely affected party entitled to notice of the decision to
369 appeal the decision by filing an application within the time
370 limit in paragraph (a) (b). An adversely affected party has the
371 right to appeal the decision to the review panel located at the
372 same regional appeal office as the referee if the department’s
373 determination is not affirmed by the appeals referee. The review
374 panel commission may affirm, modify, or reverse the findings and
375 conclusions of the appeals referee based on evidence previously
376 submitted in the case or based on additional evidence taken at
377 the direction of the review panel commission. The review panel
378 commission may assume jurisdiction of or transfer to another
379 appeals referee the proceedings on any claim pending before an
380 appeals referee at the same regional appeal office. Any
381 proceeding in which the review panel commission assumes
382 jurisdiction before completion must be heard by the review panel
383 commission in accordance with the requirement of this subsection
384 for proceedings before an appeals referee. When the review panel
385 commission denies an application to hear an appeal of an appeals
386 referee’s decision, the decision of the appeals referee is the
387 decision of the review panel commission for purposes of this
388 paragraph and is subject to judicial review within the same time
389 and manner as decisions of the review panel commission, except
390 that the time for initiating review runs from the date of notice
391 of the review panel’s commission’s order denying the application
392 to hear an appeal.
393 (c)(d) Procedure.—The manner that appealed claims are
394 presented must comply with the review panel’s commission’s
395 rules. Witnesses subpoenaed under this section are allowed fees
396 at the rate established by s. 92.142, and fees of witnesses
397 subpoenaed on behalf of the department or any claimant are
398 deemed part of the expense of administering this chapter.
399 (d)(e) Judicial review.—Orders of the review panel
400 commission entered under paragraph (b) (c) are subject to review
401 only by notice of appeal in the district court of appeal in the
402 appellate district in which a claimant resides or the job
403 separation arose or in the appellate district where the order
404 was issued. However, if the notice of appeal is filed solely
405 with the commission, the appeal shall be filed in the district
406 court of appeal in the appellate district in which the order was
407 issued. Notwithstanding chapter 120, the review panel commission
408 is a party respondent to every such proceeding. The department
409 may initiate judicial review of orders in the same manner and to
410 the same extent as any other party. Upon a final determination
411 by a district court of appeal, the department shall enter an
412 order in accordance with such determination.
413 (5) PAYMENT OF BENEFITS.—
414 (b) The department shall promptly pay benefits, regardless
415 of whether a determination is under appeal if the determination
416 allowing benefits is affirmed in any amount by an appeals
417 referee or is affirmed by a review panel the commission, or if a
418 decision of an appeals referee allowing benefits is affirmed in
419 any amount by the review panel commission. In these instances, a
420 court may not issue an injunction, supersedeas, stay, or other
421 writ or process suspending payment of benefits. A contributing
422 employer that responded to the notice of claim within the time
423 limit provided in subsection (3) may not, however, be charged
424 with benefits paid under an erroneous determination if the
425 decision is ultimately reversed. Benefits are not paid for any
426 subsequent weeks of unemployment involved in a reversal.
427 Section 5. Subsection (8) of section 20.60, Florida
428 Statutes, is amended, and present subsections (9) through (13)
429 are renumbered as subsections (8) through (12), respectively, to
430 read:
431 20.60 Department of Economic Opportunity; creation; powers
432 and duties.—
433 (8) The Reemployment Assistance Appeals Commission,
434 authorized by s. 443.012, is not subject to control,
435 supervision, or direction by the department in the performance
436 of its powers and duties but shall receive any and all support
437 and assistance from the department which is required for the
438 performance of its duties.
439 Section 6. Paragraph (n) of subsection (2) of section
440 110.205, Florida Statutes, is amended to read:
441 110.205 Career service; exemptions.—
442 (2) EXEMPT POSITIONS.—The exempt positions that are not
443 covered by this part include the following:
444 (n)1.a. In addition to those positions exempted by other
445 paragraphs of this subsection, each department head may
446 designate a maximum of 20 policymaking or managerial positions,
447 as defined by the department and approved by the Administration
448 Commission, as being exempt from the Career Service System.
449 Career service employees who occupy a position designated as a
450 position in the Selected Exempt Service under this paragraph
451 shall have the right to remain in the Career Service System by
452 opting to serve in a position not exempted by the employing
453 agency. Unless otherwise fixed by law, the department shall set
454 the salary and benefits of these positions in accordance with
455 the rules of the Selected Exempt Service; provided, however,
456 that if the agency head determines that the general counsel,
457 chief Cabinet aide, public information administrator or
458 comparable position for a Cabinet officer, inspector general, or
459 legislative affairs director has both policymaking and
460 managerial responsibilities and if the department determines
461 that any such position has both policymaking and managerial
462 responsibilities, the salary and benefits for each such position
463 shall be established by the department in accordance with the
464 rules of the Senior Management Service.
465 b. In addition, each department may designate one
466 additional position in the Senior Management Service if that
467 position reports directly to the agency head or to a position in
468 the Senior Management Service and if any additional costs are
469 absorbed from the existing budget of that department.
470 2. If otherwise exempt, employees of the Public Employees
471 Relations Commission, and the Commission on Human Relations, and
472 the Reemployment Assistance Appeals Commission, upon the
473 certification of their respective commission heads, may be
474 provided for under this paragraph as members of the Senior
475 Management Service, if otherwise qualified. However, the deputy
476 general counsel of the Public Employees Relations Commission
477 shall be compensated as members of the Selected Exempt Service.
478 Section 7. Paragraphs (b) and (c) of subsection (10) of
479 section 120.80, Florida Statutes, are amended to read:
480 120.80 Exceptions and special requirements; agencies.—
481 (10) DEPARTMENT OF ECONOMIC OPPORTUNITY.—
482 (b) Notwithstanding s. 120.54(5), the uniform rules of
483 procedure do not apply to appeal proceedings conducted under
484 chapter 443 by the reemployment assistance review panels Appeals
485 Commission, special deputies, or reemployment assistance appeals
486 referees.
487 (c) Notwithstanding s. 120.57(1)(a), hearings under chapter
488 443 may not be conducted by an administrative law judge assigned
489 by the division, but instead shall be conducted by the
490 reemployment assistance review panels Appeals Commission in
491 reemployment assistance appeals, reemployment assistance appeals
492 referees, and the Department of Economic Opportunity or its
493 special deputies under s. 443.141.
494 Section 8. Section 443.0315, Florida Statutes, is amended
495 to read:
496 443.0315 Effect of finding, judgment, conclusion, or order
497 in separate or subsequent action or proceeding; use as
498 evidence.—Any finding of fact or law, judgment, conclusion, or
499 final order made by a hearing officer, a review panel the
500 commission, or any person with the authority to make findings of
501 fact or law in any proceeding under this chapter is not
502 conclusive or binding in any separate or subsequent action or
503 proceeding, other than an action or proceeding under this
504 chapter, between an individual and his or her present or prior
505 employer brought before an arbitrator, court, or judge of this
506 state or the United States, regardless of whether the prior
507 action was between the same or related parties or involved the
508 same facts.
509 Section 9. Subsections (12) and (30) of section 443.036,
510 Florida Statutes, are amended, and present subsections (13)
511 through (47) are renumbered as (12) through (46), respectively,
512 to read:
513 443.036 Definitions.—As used in this chapter, the term:
514 (12) “Commission” means the Reemployment Assistance Appeals
515 Commission.
516 (29)(30) “Misconduct,” irrespective of whether the
517 misconduct occurs at the workplace or during working hours,
518 includes, but is not limited to, the following, which may not be
519 construed in pari materia with each other:
520 (a) Conduct demonstrating conscious disregard of an
521 employer’s interests and found to be a deliberate violation or
522 disregard of the reasonable standards of behavior which the
523 employer expects of his or her employee. Such conduct may
524 include, but is not limited to, willful damage to an employer’s
525 property that results in damage of more than $50; or theft of
526 employer property or property of a customer or invitee of the
527 employer.
528 (b) Carelessness or negligence to a degree or recurrence
529 that manifests culpability or wrongful intent, or shows an
530 intentional and substantial disregard of the employer’s
531 interests or of the employee’s duties and obligations to his or
532 her employer.
533 (c) Chronic absenteeism or tardiness in deliberate
534 violation of a known policy of the employer or one or more
535 unapproved absences following a written reprimand or warning
536 relating to more than one unapproved absence.
537 (d) A willful and deliberate violation of a standard or
538 regulation of this state by an employee of an employer licensed
539 or certified by this state, which violation would cause the
540 employer to be sanctioned or have its license or certification
541 suspended by this state. Such conduct may include, but is not
542 limited to, failure to maintain a license, registration, or
543 certification required by applicable law in order for the
544 employee to perform her or his assigned job duties.
545 (e)1. A violation of an employer’s rule, unless the
546 claimant can demonstrate that:
547 a.1. He or she did not know, and could not reasonably know,
548 of the rule’s requirements;
549 b.2. The rule is not lawful or not reasonably related to
550 the job environment and performance; or
551 c.3. The rule is not fairly or consistently enforced.
552 2. Such conduct may include, but is not limited to,
553 committing criminal assault or battery on another employee, or
554 on a customer or invitee of the employer; or committing abuse or
555 neglect of a patient, resident, disabled person, elderly person,
556 or child in her or his professional care.
557 Section 10. Paragraphs (a), (c), and (d) of subsection (2)
558 of section 443.041, Florida Statutes, are amended to read:
559 443.041 Waiver of rights; fees; privileged communications.—
560 (2) FEES.—
561 (a) Except as otherwise provided in this chapter, an
562 individual claiming benefits may not be charged fees of any kind
563 in any proceeding under this chapter by a review panel the
564 commission or the Department of Economic Opportunity, or their
565 representatives, or by any court or any officer of the court. An
566 individual claiming benefits in any proceeding before a review
567 panel the commission or the department, or representatives of
568 either, or a court may be represented by counsel or an
569 authorized representative, but the counsel or representative may
570 not charge or receive for those services more than an amount
571 approved by a review panel the commission, the department, or
572 the court.
573 (c) The department shall pay attorney attorneys’ fees
574 awarded under this section from the Employment Security
575 Administration Trust Fund as part of the costs of administration
576 of this chapter and may pay these fees directly to the attorney
577 for the claimant in a lump sum. The department or a review panel
578 the commission may not pay any other fees or costs in connection
579 with an appeal.
580 (d) Any person, firm, or corporation who or which seeks or
581 receives any remuneration or gratuity for any services rendered
582 on behalf of a claimant, except as allowed by this section and
583 in an amount approved by the department, a review panel the
584 commission, or a court, commits a misdemeanor of the second
585 degree, punishable as provided in s. 775.082 or s. 775.083.
586 Section 11. Paragraph (d) of subsection (1) of section
587 443.091, Florida Statutes, is amended to read:
588 443.091 Benefit eligibility conditions.—
589 (1) An unemployed individual is eligible to receive
590 benefits for any week only if the Department of Economic
591 Opportunity finds that:
592 (d) She or he is able to work and is available for work. In
593 order to assess eligibility for a claimed week of unemployment,
594 the department shall develop criteria to determine a claimant’s
595 ability to work and availability for work. A claimant must be
596 actively seeking work in order to be considered available for
597 work. This means engaging in systematic and sustained efforts to
598 find work, including contacting at least five prospective
599 employers for each week of unemployment claimed. The department
600 may require the claimant to provide proof of such efforts to the
601 one-stop career center as part of reemployment services. A
602 claimant’s proof of efforts may not include the same prospective
603 employer at the same location for the duration of benefits,
604 unless the employer has indicated since the time of the initial
605 contact that the employer is hiring. The department shall
606 conduct random reviews of work search information provided by
607 claimants. As an alternative to contacting at least five
608 prospective employers for any week of unemployment claimed, a
609 claimant may, for that same week, report in person to a one-stop
610 career center to meet with a representative of the center and
611 access reemployment services of the center. The center shall
612 keep a record of the services or information provided to the
613 claimant and shall provide the records to the department upon
614 request by the department. However:
615 1. Notwithstanding any other provision of this paragraph or
616 paragraphs (b) and (e), an otherwise eligible individual may not
617 be denied benefits for any week because she or he is in training
618 with the approval of the department, or by reason of s.
619 443.101(2) relating to failure to apply for, or refusal to
620 accept, suitable work. Training may be approved by the
621 department in accordance with criteria prescribed by rule. A
622 claimant’s eligibility during approved training is contingent
623 upon satisfying eligibility conditions prescribed by rule.
624 2. Notwithstanding any other provision of this chapter, an
625 otherwise eligible individual who is in training approved under
626 s. 236(a)(1) of the Trade Act of 1974, as amended, may not be
627 determined ineligible or disqualified for benefits due to
628 enrollment in such training or because of leaving work that is
629 not suitable employment to enter such training. As used in this
630 subparagraph, the term “suitable employment” means work of a
631 substantially equal or higher skill level than the worker’s past
632 adversely affected employment, as defined for purposes of the
633 Trade Act of 1974, as amended, the wages for which are at least
634 80 percent of the worker’s average weekly wage as determined for
635 purposes of the Trade Act of 1974, as amended.
636 3. Notwithstanding any other provision of this section, an
637 otherwise eligible individual may not be denied benefits for any
638 week because she or he is before any state or federal court
639 pursuant to a lawfully issued summons to appear for jury duty.
640 4. Union members who customarily obtain employment through
641 a union hiring hall may satisfy the work search requirements of
642 this paragraph by reporting daily to their union hall.
643 5. The work search requirements of this paragraph do not
644 apply to persons who are unemployed as a result of a temporary
645 layoff or who are claiming benefits under an approved short-time
646 compensation plan as provided in s. 443.1116.
647 6. In small counties as defined in s. 120.52(19), a
648 claimant engaging in systematic and sustained efforts to find
649 work must contact at least three prospective employers for each
650 week of unemployment claimed.
651 7. The work search requirements of this paragraph do not
652 apply to persons required to participate in reemployment
653 services under paragraph (e).
654 Section 12. Subsections (6) and (9) of section 443.101,
655 Florida Statutes, are amended to read:
656 443.101 Disqualification for benefits.—An individual shall
657 be disqualified for benefits:
658 (6) For making any false or fraudulent representation for
659 the purpose of obtaining benefits contrary to this chapter,
660 constituting a violation under s. 443.071. The disqualification
661 imposed under this subsection shall begin with the week in which
662 the false or fraudulent representation is made and shall
663 continue for a period not to exceed 1 year after the date the
664 Department of Economic Opportunity discovers the false or
665 fraudulent representation and until any overpayment of benefits
666 resulting from such representation has been repaid in full. This
667 disqualification may be appealed in the same manner as any other
668 disqualification imposed under this section. A conviction by any
669 court of competent jurisdiction in this state of the offense
670 prohibited or punished by s. 443.071 is conclusive upon the
671 appeals referee and the review panel commission of the making of
672 the false or fraudulent representation for which
673 disqualification is imposed under this section.
674 (9) If the individual was terminated from his or her work
675 as follows:
676 (a) If the Department of Economic Opportunity or a the
677 reemployment assistance review panel Appeals Commission finds
678 that the individual was terminated from work for violation of
679 any criminal law, under any jurisdiction, which was in
680 connection with his or her work, and the individual was
681 convicted, or entered a plea of guilty or nolo contendere, the
682 individual is not entitled to reemployment assistance benefits
683 for up to 52 weeks, pursuant to rules adopted by the department,
684 and until he or she has earned income of at least 17 times his
685 or her weekly benefit amount. If, before an adjudication of
686 guilt, an admission of guilt, or a plea of nolo contendere, the
687 employer proves by competent substantial evidence to the
688 department that the arrest was due to a crime against the
689 employer or the employer’s business, customers, or invitees, the
690 individual is not entitled to reemployment assistance benefits.
691 (b) If the department or a the reemployment assistance
692 review panel Appeals Commission finds that the individual was
693 terminated from work for any dishonest act in connection with
694 his or her work, the individual is not entitled to reemployment
695 assistance benefits for up to 52 weeks, pursuant to rules
696 adopted by the department, and until he or she has earned income
697 of at least 17 times his or her weekly benefit amount. If the
698 employer terminates an individual as a result of a dishonest act
699 in connection with his or her work and the department finds
700 misconduct in connection with his or her work, the individual is
701 not entitled to reemployment assistance benefits.
702
703 If an individual is disqualified for benefits, the account of
704 the terminating employer, if the employer is in the base period,
705 is noncharged at the time the disqualification is imposed.
706 Section 13. Subsection (5) of section 443.131, Florida
707 Statutes, is amended to read:
708 443.131 Contributions.—
709 (5) ADDITIONAL RATE FOR INTEREST ON FEDERAL ADVANCES.—
710 (a) When the Unemployment Compensation Trust Fund has
711 received advances from the Federal Government under the
712 provisions of 42 U.S.C. s. 1321, each contributing employer
713 shall be assessed an additional rate solely for the purpose of
714 paying interest due on such federal advances. The additional
715 rate shall be assessed no later than February 1 in each calendar
716 year in which an interest payment is due.
717 (b) The Revenue Estimating Conference shall estimate the
718 amount of such interest due on federal advances no later than
719 December 1 of the calendar year preceding the calendar year in
720 which an interest payment is due. The Revenue Estimating
721 Conference shall, at a minimum, consider the following as the
722 basis for the estimate:
723 1. The amounts actually advanced to the trust fund.
724 2. Amounts expected to be advanced to the trust fund based
725 on current and projected unemployment patterns and employer
726 contributions.
727 3. The interest payment due date.
728 4. The interest rate that will be applied by the Federal
729 Government to any accrued outstanding balances.
730 (c)(b) The tax collection service provider shall calculate
731 the additional rate to be assessed against contributing
732 employers. The additional rate assessed for a calendar year
733 shall be determined by dividing the estimated amount of interest
734 to be paid in that year by 95 percent of the taxable wages as
735 described in s. 443.1217 paid by all employers for the year
736 ending June 30 of the immediately preceding calendar year. The
737 amount to be paid by each employer shall be the product obtained
738 by multiplying such employer’s taxable wages as described in s.
739 443.1217 for the year ending June 30 of the immediately
740 preceding calendar year by the rate as determined by this
741 subsection. If the amount of assessments on deposit from
742 previous years, plus any earned interest, is at least 80 percent
743 of the estimated amount of interest, then an assessment may not
744 be made.
745 (d) The tax collection service provider shall make a
746 separate collection of such assessment, which may be collected
747 at the time of employer contributions and subject to the same
748 penalties for failure to file a report, imposition of the
749 standard rate pursuant to paragraph (3)(h), and interest if the
750 assessment is not received on or before June 30. Section
751 443.141(1)(d) and (e) does not apply to this separately
752 collected assessment. The tax collection service provider shall
753 maintain those funds in the tax collection service provider’s
754 Audit and Warrant Clearing Trust Fund until the provider is
755 directed by the Governor or the Governor’s designee to make the
756 interest payment to the Federal Government. Assessments on
757 deposit shall be available to pay the interest on advances
758 received from the Federal Government under 42 U.S.C. s. 1321.
759 Assessments on deposit may be invested and any interest earned
760 shall be part of the balance available to pay the interest on
761 advances received from the Federal Government under 42 U.S.C. s.
762 1321.
763 (e) Four months after In the calendar year that all
764 advances from the Federal Government under 42 U.S.C. s. 1321 and
765 associated interest are repaid, if there are assessment funds in
766 excess of the amount required to meet the final interest
767 payment, any such excess assessed funds in the Audit and Warrant
768 Clearing Trust Fund, including associated interest, shall be
769 transferred to the Unemployment Compensation Trust Fund credited
770 to employer accounts in the Unemployment Compensation Trust Fund
771 in an amount equal to the employer’s contribution to the
772 assessment for that year divided by the total amount of the
773 assessment for that year, the result of which is multiplied by
774 the amount of excess assessed funds. Any assessment amounts
775 subsequently collected shall also be transferred to the
776 Unemployment Compensation Trust Fund.
777 (f) However, If the state is permitted to defer interest
778 payments due during a calendar year under 42 U.S.C. s. 1322,
779 payment of the interest assessment shall not be due. If a
780 deferral of interest expires or is subsequently disallowed by
781 the Federal Government, either prospectively or retroactively,
782 the interest assessment shall be immediately due and payable.
783 Notwithstanding any other provision of this section, if interest
784 due during a calendar year on federal advances is forgiven or
785 postponed under federal law and is no longer due during that
786 calendar year, no interest assessment shall be assessed against
787 an employer for that calendar year, and any assessment already
788 assessed and collected against an employer before the
789 forgiveness or postponement of the interest for that calendar
790 year shall be credited to such employer’s account in the
791 Unemployment Compensation Trust Fund. However, such funds may be
792 used only to pay benefits or refunds of erroneous contributions.
793 (g) This subsection expires July 1, 2014.
794 Section 14. Paragraph (a) of subsection (1) of section
795 443.1317, Florida Statutes, is amended to read:
796 443.1317 Rulemaking authority; enforcement of rules.—
797 (1) DEPARTMENT OF ECONOMIC OPPORTUNITY.—
798 (a) Except as otherwise provided in s. 443.012, The
799 Department of Economic Opportunity has ultimate authority over
800 the administration of the Reemployment Assistance Program.
801 Section 15. Paragraph (b) of subsection (2) and paragraph
802 (f) of subsection (3) of section 443.141, Florida Statutes, is
803 amended to read:
804 443.141 Collection of contributions and reimbursements.—
805 (2) REPORTS, CONTRIBUTIONS, APPEALS.—
806 (b) Hearings.—The determination and assessment are final 15
807 days after the date the assessment is mailed unless the employer
808 files with the tax collection service provider within the 15
809 days a written protest and petition for hearing specifying the
810 objections thereto. The tax collection service provider shall
811 promptly review each petition and may reconsider its
812 determination and assessment in order to resolve the
813 petitioner’s objections. The tax collection service provider
814 shall forward each petition remaining unresolved to the
815 department for a hearing on the objections. Upon receipt of a
816 petition, the department shall schedule a hearing and notify the
817 petitioner of the time and place of the hearing. The department
818 may appoint special deputies to conduct hearings and to submit
819 their findings together with a transcript of the proceedings
820 before them and their recommendations to the department for its
821 final order. Special deputies are subject to the prohibition
822 against ex parte communications in s. 120.66. At any hearing
823 conducted by the department or its special deputy, evidence may
824 be offered to support the determination and assessment or to
825 prove it is incorrect. In order to prevail, however, the
826 petitioner must either prove that the determination and
827 assessment are incorrect or file full and complete corrected
828 reports. Evidence may also be submitted at the hearing to rebut
829 the determination by the tax collection service provider that
830 the petitioner is an employer under this chapter. Upon evidence
831 taken before it or upon the transcript submitted to it with the
832 findings and recommendation of its special deputy, the
833 department shall either set aside the tax collection service
834 provider’s determination that the petitioner is an employer
835 under this chapter or reaffirm the determination. The amounts
836 assessed under the final order, together with interest and
837 penalties, must be paid within 15 days after notice of the final
838 order is mailed to the employer, unless judicial review is
839 instituted in a case of status determination. Amounts due when
840 the status of the employer is in dispute are payable within 15
841 days after the entry of an order by the court affirming the
842 determination. However, any determination that an employing unit
843 is not an employer under this chapter does not affect the
844 benefit rights of any individual as determined by an appeals
845 referee or a review panel the commission unless:
846 1. The individual is made a party to the proceedings before
847 the special deputy; or
848 2. The decision of the appeals referee or a review panel
849 the commission has not become final or the employing unit and
850 the department were not made parties to the proceedings before
851 the appeals referee or a review panel the commission.
852 (3) COLLECTION PROCEEDINGS.—
853 (f) Reproductions.—In any proceedings in any court under
854 this chapter, reproductions of the original records of the
855 Department of Economic Opportunity, its tax collection service
856 provider, the former Agency for Workforce Innovation, the former
857 Department of Labor and Employment Security, or the former
858 Reemployment Assistance Appeals Commission, including, but not
859 limited to, photocopies or microfilm, are primary evidence in
860 lieu of the original records or of the documents that were
861 transcribed into those records.
862 Section 16. Section 443.171, Florida Statutes, is amended
863 to read:
864 443.171 Department of Economic Opportunity and commission;
865 powers and duties; records and reports; proceedings; state
866 federal cooperation.—
867 (1) POWERS AND DUTIES.—The Department of Economic
868 Opportunity shall administer this chapter. The department may
869 employ those persons, make expenditures, require reports,
870 conduct investigations, and take other action necessary or
871 suitable to administer this chapter. The department shall
872 annually submit information to Workforce Florida, Inc., covering
873 the administration and operation of this chapter during the
874 preceding calendar year for inclusion in the strategic plan
875 under s. 445.006 and may make recommendations for amendment to
876 this chapter.
877 (2) PUBLICATION OF ACTS AND RULES.—The Department of
878 Economic Opportunity shall cause to be printed and distributed
879 to the public, or otherwise distributed to the public through
880 the Internet or similar electronic means, the text of this
881 chapter and of the rules for administering this chapter adopted
882 by the department or the state agency providing reemployment
883 assistance tax collection services and any other matter relevant
884 and suitable. The department shall furnish this information to
885 any person upon request. However, any pamphlet, rules,
886 circulars, or reports required by this chapter may not contain
887 any matter except the actual data necessary to complete them or
888 the actual language of the rule, together with the proper
889 notices.
890 (3) PERSONNEL.—Subject to chapter 110 and the other
891 provisions of this chapter, the Department of Economic
892 Opportunity may appoint, set the compensation of, and prescribe
893 the duties and powers of employees, accountants, attorneys,
894 experts, and other persons as necessary for the performance of
895 the duties of the department under this chapter. The department
896 may delegate to any person its power and authority under this
897 chapter as necessary for the effective administration of this
898 chapter and may bond any person handling moneys or signing
899 checks under this chapter. The cost of these bonds must be paid
900 from the Employment Security Administration Trust Fund.
901 (4) EMPLOYMENT STABILIZATION.—The Department of Economic
902 Opportunity, under the direction of Workforce Florida, Inc.,
903 shall take all appropriate steps to reduce and prevent
904 unemployment; to encourage and assist in the adoption of
905 practical methods of career training, retraining, and career
906 guidance; to investigate, recommend, advise, and assist in the
907 establishment and operation, by municipalities, counties, school
908 districts, and the state, of reserves for public works to be
909 used in times of business depression and unemployment; to
910 promote the reemployment of the unemployed workers throughout
911 the state in every other way that may be feasible; to refer any
912 claimant entitled to extended benefits to suitable work which
913 meets the criteria of this chapter; and, to these ends, to carry
914 on and publish the results of investigations and research
915 studies.
916 (5) RECORDS AND REPORTS.—Each employing unit shall keep
917 true and accurate work records, containing the information
918 required by the Department of Economic Opportunity or its tax
919 collection service provider. These records must be open to
920 inspection and are subject to being copied by the department or
921 its tax collection service provider at any reasonable time and
922 as often as necessary. The department or its tax collection
923 service provider may require from any employing unit any sworn
924 or unsworn reports, for persons employed by the employing unit,
925 necessary for the effective administration of this chapter.
926 However, a state or local governmental agency performing
927 intelligence or counterintelligence functions need not report an
928 employee if the head of that agency determines that reporting
929 the employee could endanger the safety of the employee or
930 compromise an ongoing investigation or intelligence mission.
931 (6) OATHS AND WITNESSES.—In the discharge of the duties
932 imposed by this chapter, the Department of Economic Opportunity,
933 its tax collection service provider, the members of the review
934 panels commission, and any authorized representative of any of
935 these entities may administer oaths and affirmations, take
936 depositions, certify to official acts, and issue subpoenas to
937 compel the attendance of witnesses and the production of books,
938 papers, correspondence, memoranda, and other records deemed
939 necessary as evidence in connection with the administration of
940 this chapter.
941 (7) SUBPOENAS.—If a person refuses to obey a subpoena
942 issued to that person, any court of this state within the
943 jurisdiction of which the inquiry is carried on, or within the
944 jurisdiction of which the person is found, resides, or transacts
945 business, upon application by the Department of Economic
946 Opportunity, its tax collection service provider, a review panel
947 the commission, or any authorized representative of any of these
948 entities has jurisdiction to order the person to appear before
949 the entity to produce evidence or give testimony on the matter
950 under investigation or in question. Failure to obey the order of
951 the court may be punished by the court as contempt. Any person
952 who fails or refuses without just cause to appear or testify; to
953 answer any lawful inquiry; or to produce books, papers,
954 correspondence, memoranda, and other records within her or his
955 control as commanded in a subpoena of the department, its tax
956 collection service provider, a review panel the commission, or
957 any authorized representative of any of these entities commits a
958 misdemeanor of the second degree, punishable as provided in s.
959 775.082 or s. 775.083. Each day that a violation continues is a
960 separate offense.
961 (8) PROTECTION AGAINST SELF-INCRIMINATION.—A person is not
962 excused from appearing or testifying, or from producing books,
963 papers, correspondence, memoranda, or other records, before the
964 Department of Economic Opportunity, its tax collection service
965 provider, a review panel the commission, or any authorized
966 representative of any of these entities or as commanded in a
967 subpoena of any of these entities in any proceeding before the
968 department, a review panel the commission, an appeals referee,
969 or a special deputy on the ground that the testimony or
970 evidence, documentary or otherwise, required of the person may
971 incriminate her or him or subject her or him to a penalty or
972 forfeiture. That person may not be prosecuted or subjected to
973 any penalty or forfeiture for or on account of any transaction,
974 matter, or thing concerning which she or he is compelled, after
975 having claimed her or his privilege against self-incrimination,
976 to testify or produce evidence, documentary or otherwise, except
977 that the person testifying is not exempt from prosecution and
978 punishment for perjury committed while testifying.
979 (9) STATE-FEDERAL COOPERATION.—
980 (a)1. In the administration of this chapter, the Department
981 of Economic Opportunity and its tax collection service provider
982 shall cooperate with the United States Department of Labor to
983 the fullest extent consistent with this chapter and shall take
984 those actions, through the adoption of appropriate rules,
985 administrative methods, and standards, necessary to secure for
986 this state all advantages available under the provisions of
987 federal law relating to reemployment assistance.
988 2. In the administration of the provisions in s. 443.1115,
989 which are enacted to conform with the Federal-State Extended
990 Unemployment Compensation Act of 1970, the department shall take
991 those actions necessary to ensure that those provisions are
992 interpreted and applied to meet the requirements of the federal
993 act as interpreted by the United States Department of Labor and
994 to secure for this state the full reimbursement of the federal
995 share of extended benefits paid under this chapter which is
996 reimbursable under the federal act.
997 3. The department and its tax collection service provider
998 shall comply with the regulations of the United States
999 Department of Labor relating to the receipt or expenditure by
1000 this state of funds granted under federal law; shall submit the
1001 reports in the form and containing the information the United
1002 States Department of Labor requires; and shall comply with
1003 directions of the United States Department of Labor necessary to
1004 assure the correctness and verification of these reports.
1005 (b) The department and its tax collection service provider
1006 may cooperate with every agency of the United States charged
1007 with administration of any unemployment insurance law.
1008 (c) The department and its tax collection service provider
1009 shall cooperate with the agencies of other states, and shall
1010 make every proper effort within their means, to oppose and
1011 prevent any further action leading to the complete or
1012 substantial federalization of state reemployment assistance
1013 funds or state employment security programs. The department and
1014 its tax collection service provider may make, and may cooperate
1015 with other appropriate agencies in making, studies as to the
1016 practicability and probable cost of possible new state
1017 administered social security programs and the relative
1018 desirability of state, rather than federal, action in that field
1019 of study.
1020 (10) EVIDENCE OF MAILING.—A mailing date on any notice,
1021 determination, decision, order, or other document mailed by the
1022 department or its tax collection service provider pursuant to
1023 this chapter creates a rebuttable presumption that such notice,
1024 determination, order, or other document was mailed on the date
1025 indicated.
1026 Section 17. This act shall take effect July 1, 2013.
