Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. PER CURIAM. We have for review Mason v. Load King Manufacturing Co., 715 So. 2d 279(Fla. 1st DCA 1998), on the basis of express and direct conflict with the opinion inBlumetti v. Unemployment Appeals Commission, 675 So. 2d 689 (Fla. 5th DCA1996). We have jurisdiction. See art. V, � 3(b)(3), Fla. Const. For the followingreasons, we approve the rule in Mason finding that unemployment benefits areappropriately denied when an employer can clearly demonstrate substantial andexcessive unexcused absenteeism by an employee as the basis for discharge,regardless of whether the incident immediately precipitating the employee’s actualtermination is excused. PROCEEDINGS TO DATE Timothy Mason worked as a shear operator for Load King ManufacturingCompany from September 26, 1996, until his discharge for repeated attendanceviolations on February 13, 1997. Load King has a progressive disciplinary policywhich prohibits excessive absenteeism and tardiness. Pursuant to the policy, theemployer applies a point system to each employee’s attendance record. If, forexample, an employee accumulates a total of ten points within a twelve-monthperiod, that employee may be subject to discipline, including termination. Masonsigned Load King’s company manual representing that he had read and understoodLoad King’s policies and rules, which included this attendance policy. From September 26, 1996, through February 1, 1997, a period ofapproximately four months, Mason received eleven points, all resulting fromnumerous absences and late arrivals. Hence, his point total during the four-monthperiod already exceeded the maximum points allowed for a one-year period. OnJanuary 29, 1997, his supervisor counseled him about his attendance and gave him awritten warning. Subsequently, Load King suspended him from work on February 3and 4, and warned him that his job was in jeopardy. After this suspension, onFebruary 8, 1997, Mason left work early, although with the approval of hisimmediate supervisor, because of personal illness. Five days later, on February 13,Mason was late because the individual with whom he rode to work did not pick himup and he was forced to walk. Mason was discharged on February 13 due to hisattendance problems. On February 20, 1997, Mason filed a claim for unemployment compensationbenefits. In a Notice of Claims Determination dated March 13, 1997, Mason wasfound to be disqualified for unemployment compensation benefits because ofmisconduct connected with his work. [FOOTNOTE 1] Mason appealed, but this decision wasaffirmed by the appeals referee, and then subsequently affirmed by theUnemployment Appeals Commission. Finally, Mason sought review in the FirstDistrict, which affirmed the prior rulings and held that an employer’s burden ofproving misconduct on the part of the employee can be met by proof of the worker’semployment history of excessive and unauthorized absenteeism, which mayotherwise be tantamount to misconduct. See Mason, 715 So. 2d at 280-81.Mason has sought review here based on alleged conflict with the FifthDistrict’s decision in Blumetti, which found that the employer had not satisfied itsburden of proving misconduct in a similar situation because it found the incidents ofalleged misconduct immediately precipitating the employee’s termination excusable.See Blumetti, 675 So. 2d at 691. Both Blumetti and Mason rely on our decision inTallahassee Housing Authority v. Florida Unemployment Appeals Commission, 483So. 2d 413 (Fla. 1986). Tallahassee Housing Authority In Tallahassee Housing Authority, an employee, Barron, applied forunemployment compensation after his discharge from the Tallahassee HousingAuthority. The claims adjudicator found that Barron was discharged for excessiveabsenteeism, which constituted misconduct connected with work; therefore, he wasnot entitled to benefits. Subsequently, at an evidentiary hearing before the appealsreferee, the Tallahassee Housing Authority presented a three-page summary ofBarron’s attendance records as proof of his excessive absenteeism. Based on theattendance record reflected in this summary, the referee affirmed the claimsadjudicator’s finding that Barron was guilty of misconduct and not entitled tounemployment compensation. The Unemployment Appeals Commission reversed,finding that the summary relied on by the referee was inadmissable hearsay. [FOOTNOTE 2] On appeal, the First District rejected the Housing Authority’s argument that ashowing of continued absenteeism alone is sufficient to justify termination. SeeTallahassee Housing Auth. v. Florida Unemployment Appeals Comm’n, 463 So. 2d1216 (Fla. 1st DCA 1985). More specifically, the court wrote:
Even accepting the summary as admissible evidence,we affirm the commission’s reversal of the appeals refereeon the basis of the commission’s application of the law tothis case. In our view, although excessive absenteeism ortardiness may constitute misconduct which justifiestermination of employment and therefore precludescollection of unemployment compensation benefits,Sanchez v. Department of Labor, Etc., 411 So. 2d 313(Fla. 3d DCA 1982), an employer has the burden undersection 443.036(24), Florida Statutes, to show misconductwith a preponderance of proof that the absences wereindeed unexcusable and in detriment to the employer’sinterests.

Id. at 1218. However, upon review in this Court, we expressly rejected thereasoning of the First District and held:

We reject the reasoning of the district court in theinstant case. In our view, excessive unauthorizedabsenteeism presumptively hampers the operation of abusiness and is inherently detrimental to an employer. Wehold, therefore, that a finding of misconduct under section443.036(24) is justified when an employer presentssubstantial competent evidence of an employee’sexcessive unauthorized absenteeism. Once excessiveunauthorized absenteeism is established, the burden is onthe employee to rebut the presumption that hisabsenteeism can be characterized as “misconduct” withinthe meaning of the statute.

Tallahassee Housing Authority, 483 So. 2d at 414 (emphasis added). Even thoughwe ultimately found no competent, substantial evidence to support a finding ofmisconduct, our ruling was based on the fact that the summary prepared by theHousing Authority was not admissible evidence. See id. at 415-16. Blumetti In Blumetti, the employee Jay Blumetti appealed the Unemployment AppealsCommission’s denial of unemployment compensation benefits due to Blumetti’sexcessive tardiness. On appeal, the Fifth District noted that Blumetti had beenterminated because of his tardiness record in June, July and August. At the end ofJune, he had received a written warning that any further tardiness or infractionscould result in termination. On July 20, he received another written warning forleaving his job without permission. However, the court found that the employerrelied primarily on two instances occurring on July 20 and August 6 to justifyBlumetti’s termination, and the court found inadequate evidence to support aconclusion that these incidents were unexcused and Blumetti’s fault. The court cited our decision in Tallahassee Housing Authority, and held thatin tardiness cases, the employer “must establish by a preponderance of the evidencethat the former employee’s tardiness was inexcusable and detrimental to theemployer’s interest.” 675 So. 2d at 690. Finding that neither of the two most recentinstances on which the employer relied to justify Blumetti’s termination could becharacterized as wanton disregard for the employer’s interests or a deliberateviolation of the employer’s rules to constitute misconduct, the court reversed thedenial of Blumetti’s unemployment compensation benefits. See id. at 691. THIS CASE In Mason, the First District was faced with a situation somewhat similar tothe one faced by the Fifth District in Blumetti. Mason’s two prior incidents beforehe was terminated — leaving work early because of personal illness and reporting towork late because his transportation failed to pick him up, were found to beexcusable by the referee. Notwithstanding, the referee found that Mason’s priorrecord evidenced a deliberate disregard of his duties and obligations to theemployer. The First District agreed. The First District also acknowledged thedecision in Blumetti, but found that it applied the wrong standard. Specifically, itstated: “We cannot agree with Blumetti that an employer’s burden in establishingmisconduct is met only by a showing that the conduct immediately precipitating theemployee’s termination from employment was inexcusable.” Mason, 715 So. 2d at280. As previously mentioned, the statutory provisions defining misconduct are thesame today as they were in 1985. Section 443.036(26) defines misconduct as:

(a) Conduct evincing such willful or wanton disregardof an employer’s interests as is found in deliberateviolation or disregard of standards of behavior which theemployer has the right to expect of his employee; or (b) Carelessness or negligence of such a degree orrecurrence as to manifest culpability, wrongful intent, orevil design or to show an intentional and substantialdisregard of the employer’s interests or of the employeesduties and obligations to his employer.

In Tallahassee Housing Authority we held that an employer satisfies his burden ofproving “misconduct under section 443.036(24) . . . when an employer presentssubstantial competent evidence of an employee’s excessive unauthorizedabsenteeism.” 483 So. 2d at 414. Once an employer has proven an employee’sexcessive unauthorized absenteeism, the burden is properly shifted to the employeeto rebut the presumption that his absenteeism can be characterized as misconduct.See id. The shifting of the burden to the employee to disprove misconduct inTallahassee Housing Authority was predicated upon the presentation of satisfactoryproof by an employer of a serious and identifiable pattern of excessive absenteeismor late arrivals.[FOOTNOTE 3] For example, to prove “excessive unauthorized absenteeism,” anemployer must prove more than one act. See e.g., Higgins v. Iowa Dep’t of JobService, 350 N.W.2d 187, 192 (Iowa 1984) (stating that the determination ofwhether “unexcused absenteeism” is “excessive” necessarily requires theconsideration of past acts and warnings). It logically follows that the employee’sentire course of conduct must be considered, not just the acts immediatelyprecipitating the employee’s discharge. In fact, at least one Florida case has foundmisconduct and denied unemployment compensation even when the final act leadingdirectly to the employee’s discharge was not proved by the employer. See C.F.Industries, Inc. v. Long, 364 So. 2d 864 (Fla. 2d DCA 1978).[FOOTNOTE 4] In order to prove misconduct under Tallahassee Housing Authority,employers have the burden of demonstrating both excessiveness and wilfulness inthe employee’s actions. The term “unauthorized” implicitly connotes an element ofwilfulness because it means that the absences were unexcused and without thepermission of the employer. By “unauthorized absences,” we are generally referringto those absences where the employee has wilfully chosen to violate herfundamental obligation to an employer to come to work and carry out her assignedduties. Obviously, the failure of an employee to carry out his or her obligation canbe devastating to the functioning of an employer’s business. Excessiveness mustalso be proven. While we realize that excessiveness may well depend on factorssuch as the particular employment context and presence or absence of workplaceguidelines, we do not deem it unreasonable to require an employer who seeks todeny a former employee unemployment compensation benefits to meet this burden. In defining misconduct, courts are required to liberally construe the statute infavor of the employee. See Roberts v. Diehl, 707 So. 2d 869 (Fla. 2d DCA 1998);Baptiste v. Waste Management, Inc., 701 So. 2d 386 (Fla. 3d DCA 1997); Gilbertv. Department of Corrections, 696 So. 2d 416 (Fla. 1st DCA 1997); Foote v.Unemployment Appeals Comm’n, 659 So. 2d 1232 (Fla. 5th DCA 1995).Additionally, awards determinations must be made against the backdrop that theremedial aspect of the unemployment compensation statutory scheme requires aliberal construction in favor of awarding benefits. See St. Joe Paper Co. v.Gautreaux, 180 So. 2d 668 (Fla. 1st DCA 1965). The denial of unemploymentbenefits is a very serious consequence with very serious repercussions foremployees, adopted by the Legislature only to deter misconduct in the employmentcontext. As such, awards determinations under this statutory scheme should not betaken lightly and should not be made via a mere technical and formalistic procedure. Load King hired Mason with the expectation and on the reliance that hewould comply with its attendance policy. Yet, in a period of just over four months,Mason was absent four times, late four times and left early one time. Heaccumulated more points under the company’s attendance policy in this four-monthperiod than the allotted yearly amount. As noted earlier, Mason accepted hisposition while on actual notice of the company’s attendance policy. Given hishistory of unauthorized absenteeism with the company and the fact that within twoweeks after having served a two-day suspension, Mason left early on one day andwas late on another day, we agree that the record supports a finding of anestablished pattern of excessive absenteeism and tardiness sufficient to constitutemisconduct and render Mason ineligible to receive benefits. See Thurber v. Hillier& Wanless, P.A., 642 So. 2d 75 (Fla 4th DCA 1994) (employee’s absence fromwork without authorization constituted misconduct and rendered him ineligible forbenefits); Sanchez v. Dep’t of Labor & Employment Security, 411 So. 2d 313 (Fla.3d DCA 1982) (employee’s failure to work minimum of forty hours during any ofthe four-month period he was employed together with an authorized absence fromwork constituted misconduct); Castillo v. Florida Dep’t of Commerce, 253 So. 2d162 (Fla. 2d DCA 1971) (employee’s continued absenteeism severely hampering theemployer in carrying workload of the plant constituted misconduct for whichunemployment compensation could be denied). Applying the standard espoused inTallahassee Housing Authority, we find that Load King Manufacturing satisfied itsburden of proof, and, as a result, Mason was properly terminated for misconduct asdefined in section 443.036(26), Florida Statutes (1995). Mason alleges that under the rule in C.F. Industries and the District Court’sdecision in the present case, an employer can in essence hold an employee hostagefor any length of time, fire him for any reason, and then deny him unemploymentbenefits citing excessive unauthorized absenteeism as the reason. We find no meritto Mason’s argument. When dealing with the unemployment compensation scheme,the referee must factor this length of time into his decision. In other words, inabsenteeism cases, the more attenuated the precipitating acts leading to theemployee’s termination are from the established pattern of absenteeism, the harder itbecomes for the employer to prove misconduct under the heavy burden establishedin Tallahassee Housing Authority and its progeny. Conversely, the opposite is true.The closer the final act leading to the discharge is to the pattern of absenteeism, theeasier it should be for the employer to prove misconduct under the unemploymentstatutory scheme.[FOOTNOTE 5] Moreover, as in Tallahassee Housing Authority, we emphasizethat before an award of unemployment benefits can be denied, the employer mustprove misconduct by satisfying the heavy burden of proving “excessiveunauthorized absenteeism.” We do not believe that the opinion in Blumetti necessarily conflicts with ourholding in Tallahassee Housing Authority or the First District’s holding in this case.Rather, we read the Blumetti opinion as finding a problem with the evidence of theemployee’s misconduct. In Blumetti the Fifth District acknowledged our holding inTallahassee Housing Authority but held that the employer’s proof was insufficient.Although in dicta the court stated that it would have probably affirmed the case hadBlumetti’s employer terminated him after he arrived to work a few minutes late inearly August, following written warnings in June, the court went on to find that theemployer had not proven that a number of the incidents primarily relied upon toprove misconduct were the employee’s fault as claimed. See Blumetti, 675 So. 2d at691. Accordingly, the court implicitly held that the few instances of allegedmisconduct remaining were insufficient to constitute excessive unauthorizedabsenteeism. Such a record contrasts sharply with the record here demonstratingmisconduct regardless of the incidents immediately preceding Mason’s discharge.The Blumetti court did not say that the employer must prove that the conductimmediately precipitating the employee’s termination was inexcusable in order tomeet its burden of establishing misconduct. However, to the extent that the opinionmay be read that way, as it apparently was by the First District here, we disapproveof such a requirement. CONCLUSION In light of this state’s prior decisions, especially the standard set out by thisCourt in Tallahassee Housing Authority requiring the employer to prove “excessiveunauthorized absenteeism,” and the public policy considerations set out above, weapprove the decision of the district court in this case and disapprove Blumetti to theextent it conflicts with the views expressed herein. It is so ordered. HARDING, C.J., and WELLS, LEWIS and QUINCE, JJ., concur. SHAW, J., dissents with an opinion, in which ANSTEAD and PARIENTE, JJ.,concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IFFILED, DETERMINED. SHAW, J., dissenting. The referee from the Unemployment Compensation Appeals Bureau ruled asfollows: (1) “[A]ccumulated violations of the employer’s interests over the course ofa claimant’s employment can show misconduct, even if the final incident leading tothe discharge was not misconduct”; and (2) “[t]he claimant’s refusal to report towork as scheduled for reasons of a noncompelling nature, evidences a deliberatedisregard of his duties and obligations to the employer, and constitutes misconductconnected with work.” The present majority opinion affirms both these rulings. Idisagree. I. FACTS Mason was fired from his job at Load King Manufacturing Company due tohis attendance record, and his application for unemployment compensation benefitswas denied. The relevant facts are set forth in the referee’s report:

The claimant was employed as a shear operatorfrom September 27, 1996, until February 13, 1997. Theemployer has a progressive disciplinary policy, andknown employer policy prohibits excessive absenteeismand lateness reporting for work. On December 16, 1996,the claimant was late reporting for work for unspecifiedreasons. The claimant was late reporting for work onDecember 18, 1996, with the approval of his immediatesupervisor, because he had to go to school with his son.The claimant was late reporting for work on December20, 1996, for unspecified reasons. The claimant had cartrouble on occasion which would cause him to be late.On December 30, 1996, the claimant was absent forunspecified reasons. The claimant had previously beenabsent due to marital problems. The claimant was absenton January 27, 1997, for unspecified reasons. Theclaimant was absent on January 29, 1997, because he wastrying to find a place to live, and was counseled about hisattendance and given a written warning. The claimantwas suspended on February 3 and 4, 1997, due to hisattendance, and warned that his job was in jeopardy. Theclaimant left before the end of his shift on February 8,1997, due to personal illness, with the approval of thisimmediate supervisor. The claimant was late reporting forwork on February 13, 1997, because the individual withwhom he rode to work did not pick him up and he had towalk. The claimant was discharged on February 13,1997, due to his attendance.

The referee affirmed the adjudicator’s order denying benefits, the UnemploymentAppeals Commission (the “Commission”) affirmed the referee’s decision, and thedistrict court affirmed the Commission’s order. Mason contends that the tribunalserred. II. THE APPLICABLE LAW The present case is not a “wrongful discharge” case. The issue is not whetherLoad King had adequate grounds to fire Mason based on his lapses in attendance.Under Florida law, barring an agreement to the contrary, an employer generally candischarge an “at will” employee without cause.[FOOTNOTE 6] Rather, the present case is a “denialof benefits” case. The issue is whether Mason was improperly deniedunemployment benefits due to his attendance. The conditions surrounding Mason’sfiring are relevant because, under the applicable law, a worker discharged for”misconduct” is ineligible for benefits. The decision as to what constitutes”misconduct” in each case is made not by the employer but by the Commission,based on statutory criteria. The standard governing disqualification is far morerigorous than the standard governing discharge. The Florida Unemployment Compensation Law (the “Law”) is codified inchapter 443, Florida Statutes (1997). In determining the scope of coverage underthe Law, legislative intent is the polestar that guides a court’s inquiry.[FOOTNOTE 7] Thelegislative statement of policy is broad:

Declaration of public policy.–As a guide to theinterpretation and application of this chapter, the publicpolicy of this state is declared to be as follows: Economicinsecurity due to unemployment is a serious menace to thehealth, morals, and welfare of the people of this state.Unemployment is therefore a subject of general interestand concern which requires appropriate action by theLegislature to prevent its spread and to lighten its burdenwhich now so often falls with crushing force upon theunemployed worker and her or his family. Theachievement of social security requires protection againstthis greatest hazard of our economic life. . . . TheLegislature, therefore, declares that in its consideredjudgment the public good, and the general welfare of thecitizens of this state require the enactment of this measure,under the police power of the state . . . for the compulsorysetting aside of unemployment reserves to be used for thebenefit of persons unemployed through no fault of theirown, subject, however, to the specific provisions of thischapter.

� 443.021, Fla. Stat. (1997). The legislature has implemented a rule of liberalconstruction for chapter 443:

Rule of liberal construction.–This chapter shall beliberally construed to accomplish its purpose to promoteemployment security . . . . [A]ll doubts as to the properconstruction of any provision of this chapter shall beresolved in favor of conformity with such requirements.

� 443.031, Fla. Stat. (1997). A worker may be disqualified from benefits under chapter 443, inter alia, if heor she is fired for “misconduct”:

Disqualification for benefits.–An individual shall bedisqualified for benefits: (1) . . . [I]f he or she has voluntarily left his or herwork without good cause attributable to his or heremploying unit or [if] the individual has been dischargedby his or her employing unit for misconduct connectedwith his or her work, if so found by the division. Theterm “work,” as used in this paragraph, means any work,whether full-time, part-time, or temporary.

� 443.101, Fla. Stat. (1997) (emphasis added). The term “misconduct” is definedthusly:

MISCONDUCT.–”Misconduct” includes, but isnot limited to the following, which shall not be construedin pari materia with each other: (a) Conduct evincing such willful or wantondisregard of an employer’s interests as is found indeliberate violation or disregard of the standards ofbehavior which the employer has the right to expect of hisor her employee; or (b) Carelessness or negligence of such a degree orrecurrence as to manifest culpability, wrongful intent, orevil design or to show an intentional and substantialdisregard of the employer’s interests or of the employee’sduties and obligations to his or her employer.

� 443.036(26), Fla. Stat. (1997) (emphasis added). This Court in Tallahassee Housing Authority v. Florida UnemploymentAppeals Commission, 483 So. 2d 413 (Fla. 1986), held that a finding of misconductmay be based on “excessive unauthorized absenteeism”:

In our view, excessive unauthorized absenteeismpresumptively hampers the operation of a business and isinherently detrimental to any employer. We hold,therefore, that a finding of misconduct under section443.036(24) is justified when an employer presentssubstantial competent evidence of an employee’sexcessive unauthorized absenteeism. Once excessiveunauthorized absenteeism is established, the burden is onthe employee to rebut the presumption that hisabsenteeism can be characterized as “misconduct” withinthe meaning of the statute.

Tallahassee Housing Authority, 483 So. 2d at 414 (emphasis added). Stated in theconverse: A finding of misconduct is not justified based on evidence of authorizedabsenteeism.[FOOTNOTE 8] III. THE PRESENT CASE In the present case, the referee reached the following conclusions of law inher order denying benefits:

The record reflects that the claimant was discharged dueto his attendance. Employers have a right to expectemployees to report to work as scheduled unless theemployee properly reports the absence and provides acompelling reason for it. The claimant was late onFebruary 13, 1997, because he had to walk to work whenhis ride to work did not pick him up. The claimant’slateness was for a compelling reason. However,accumulated violations of the employers’s interests overthe course of the claimant’s employment can showmisconduct, even if the final incident leading to thedischarge was not misconduct. By his own testimony, theclaimant was late on occasion due to car trouble, or forunspecified reasons, and he had been absent due tomarital problems, or because he was trying to find a placeto live. The claimant had been counseled about hisattendance and warned that his job was in jeopardy. Theclaimant’s refusal to report to work as scheduled forreasons of a noncompelling nature, evidences a deliberatedisregard of his duties and obligations to the employer,and constitutes misconduct connected with work.Accordingly, the claimant is not qualified to receiveunemployment compensation benefits.

(Citation omitted; emphasis added.) I disagree with these conclusions. First, underthe plain language of chapter 443, in order to justify disqualification theprecipitating act itself must constitute “misconduct.”[FOOTNOTE 9] Second, Load King failed toshow that either the precipitating act or Mason’s prior record constituted”misconduct.” A. The Precipitating Act The gist of the referee’s ruling is that a worker can be disqualified frombenefits based on a prior record of misconduct, even if the conduct that precipitatedthe discharge was authorized. This rule violates the plain language and broadpurpose of chapter 443. Section 443.101(1) expressly states that disqualification isjustified if the worker is “discharged . . . for misconduct,” and section 443.036(26)defines misconduct as “willful or wanton” conduct that “deliberately” disregards theemployer’s standards. When (as in the present case) an employer opts to counselrather than fire a worker based on a prior record of misconduct, the employer at thatpoint elects not to discharge the worker for the prior record standing alone. If theemployer later fires the worker based on a subsequent precipitating act, theemployer at that point discharges the worker for the precipitating act — either standingalone or in conjunction with the prior record — not for the prior record. To sayotherwise is to play word games with chapter 443. To ignore the plain language of these statutes and hold (as the presentmajority opinion does) that disqualification may be based on a precipitating act thatis authorized is to create a workplace governed not by the objective criteria set forthin chapter 443 but by each employer’s subjective criteria for disqualification. Acounseled worker will be at the mercy of his or her employer and can be”blindsided” at any time–and denied benefits–based on an authorized or otherwiseinnocent act, even if the worker has scrupulously honored any bargain struck atcounseling. This is precisely the evil that chapter 443 was intended to dispel–i.e.,social insecurity.[FOOTNOTE 10] Under the plain language of the above statutes and the rule ofliberal construction contained in section 443.031, the precipitating act itself — eitherstanding alone or in conjunction with the prior record — must constitute misconduct. In the present case, the referee found that the two incidents precipitatingMason’s firing were authorized or otherwise comported with chapter 443. [FOOTNOTE 11] Masonwas counseled on January 29, 1997, concerning his absenteeism. He subsequentlyleft work early due to illness on February 8 with the approval of his supervisor,[FOOTNOTE 12]and he arrived late at work on February 13 after his “ride” failed to show and Masonwas forced to walk.[FOOTNOTE 13] Neither act constituted the same type of conduct for which hehad been counseled a few days earlier. The printed counseling form, entitled”EMPLOYEE WARNING NOTICE,” that was used to counsel Mason onJanuary 29 contained a box labeled “Lateness/Early Quit,” and this box was notchecked off; only the box stating “Excessive Absences” was checked off. Masonexplained:

Okay. They said that I was terminated forabsenteeism . . . . Okay. After I got my two daysuspension, I missed no more days, and the day I came towork 30 minutes–24 min–30 minutes late, they terminateme. Well, I had never had no problem being late ’cause I[had gotten that] straightened out . . . .

Under the plain language of chapter 443, the referee should not have disregarded thefact that the two precipitating acts did not constitute misconduct. B. The Prior Record In her order denying benefits, the referee stated that Mason’s “refusal toreport to work as scheduled for reasons of a noncompelling nature” constituted validgrounds for disqualification. This is the wrong standard for disqualification. Asnoted above, chapter 443 authorizes disqualification based on willful or wantonconduct that deliberately disregards the employer’s standards. The criterion appliedby the referee–i.e., whether the absence was for a compelling reason–differs vastlyfrom this statutory definition and injects into the scheme an element ofsubjectiveness and uncertainty that the statute seeks to avoid, for who is to say whatconstitutes a “compelling” reason? (How pressing must a transportation problembe? How severe must a personal illness or injury be? How dire a family problem?How catastrophic an act of God?) Pursuant to this Court’s holding in Tallahassee Housing, the proper criterionfor determining whether a lapse in attendance constitutes misconduct is whether thelapse was authorized. In the present case, the referee determined that the twoprecipitating acts and several of Mason’s prior lapses in attendance were authorizedor otherwise comported with chapter 443. The referee, however, did not determinethat the remaining lapses in Mason’s prior record were unauthorized.[FOOTNOTE 14] Nor couldthe referee have done so, for no such inquiry was made at the hearing. Mason wastardy or absent on a number of occasions throughout his tenure at Load King, butthe referee asked only whether one specific lapse (on February 8) was approved bythe employer and concluded that this lapse was authorized.[FOOTNOTE 15] On the present record, it is entirely possible that Mason was fired forexcessive authorized lapses in attendance. In point of fact, the printed counselingform that Load King gave Mason on January 29 depicted a number of possibleoffenses, but the critical box stating “Unexcused Absence(s)” was not checked off.The referee concluded simply that Mason “was discharged due to his attendance.”Thus, not only did Load King fail to show that the two acts precipitating Mason’sdischarge constituted misconduct, but Load King also failed to show that the lapsesin his prior record were unauthorized. IV. CONCLUSION Based on the foregoing, I conclude that the Commission erred in disqualifyingMason from unemployment benefits based on “misconduct.” Load King did notestablish by competent substantial evidence that Mason was discharged forexcessive unauthorized lapses in attendance, as required by Tallahassee Housing.Rather, Load King established simply that he was fired “due to his attendance.”While this may have been a legitimate reason for Load King to discharge Mason, itwas not a valid reason for the Commission to disqualify him. I would quash Mason v. Load King Manufacturing Co., 715 So. 2d 279 (Fla.1st DCA 1998).[FOOTNOTE 16] ANSTEAD and PARIENTE, JJ., concur. :::FOOTNOTES::: FN1 An employee can be disqualified from receiving compensation benefits under section443.101, Florida Statutes (1995), if it is found that the employee was terminated for misconductas defined in section 443.036(26), Florida Statutes (1995). Under section 443.036(26),misconduct is defined as: (a) Conduct evincing such willful or wanton disregard of an employer’s interestsas is found in deliberate violation or disregard of standards of behavior which theemployer has the right to expect of his employee; or (b) Carelessness or negligence of such a degree or recurrence as to manifestculpability, wrongful intent, or evil design or to show an intentional and substantialdisregard of the employer’s interests or of the employees duties and obligations tohis employer. FN2 The definition of misconduct as provided in section 443.036(24) is the same as it was in1985. FN3 Although Tallahassee Housing Authority dealt with absenteeism and Blumetti dealt withtardiness, they both deal with attendance problems and are sufficiently analogous to be treated thesame. In fact, excessive tardiness has been held to constitute misconduct under the statute. See,e.g., Martinson v. Breit’s Tower Service, Inc., 680 So. 2d 599 (Fla. 3d DCA 1996); Sumlar v.Intermodal Services, Inc., 429 So. 2d 364 (Fla. 1st DCA 1983); Sanchez v. Department of Labor& Employment Security, 411 So. 2d 313 (Fla. 3d DCA 1982). FN4 In C. F. Industries, the employee was discharged for excessive tardiness, excessiveabsenteeism, violation of safety rules, failing to report an accident involving injury, andunsatisfactory performance. See id. at 865. In each case, the employee was given a warning. Seeid. The employee argued that because the final act leading to his termination (an accusation thatthe employee had falsified records) was not proven, he could not be found to have beendischarged for misconduct associated with his work as defined by the statute. See id. However,even though the referee found that the employer had failed to prove that the employee hadfalsified records, the court held there was competent and substantial evidence to support thereferee’s finding that the employee was discharged for misconduct connected with his work. Seeid. at 866. FN5 As a matter of public policy, adopting the rule of the district court’s decision in this casemay actually favor employees in at least one significant way. In unemployment compensationcases, it appears that employers choose disciplinary measures less severe than termination, even incases where if the employer had chosen to terminate the employee, a denial of unemploymentbenefits would have been justified. See, e.g., Mason, 715 So. 2d at 279 (employee suspendedbefore being terminated); Blumetti, 675 So. 2d at 691 (employee received numerous warningsbefore finally being terminated); C.F. Industries, Inc., 364 So. 2d at 865 (employee given warningor layoff after each incident of misconduct before finally being terminated). In cases where theemployee has already exhibited a history of misconduct, our decision today encourages employersto continue to issue these warnings and suspensions to employees for violations of companyattendance policies and to continue to work with these employees, rather than simply terminatingthem to avoid the liability of unemployment benefits. FN6 See, e.g., DeMarco v. Publix Super Markets, Inc., 384 So. 2d 1253, 1254 (Fla. 1980)(“[W]here the term of employment is discretionary with either party or indefinite, then either partyfor any reason may terminate it at any time and no action may be maintained for breach of theemployment contract.” (quoting DeMarco v. Publix Super Markets, Inc., 360 So. 2d 134, 136(Fla. 3d DCA 1978)). FN7 See, e.g., Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div.of Admin. Hearings, 686 So. 2d 1349, 1354 (Fla. 1997).FN8 See Blumetti v. Unemployment Appeals Comm’n, 675 So. 2d 689, 690 (Fla. 5th DCA1996) (“[T]he employer in such cases must establish . . . that the former employee’s tardiness wasinexcusable . . . .”) (emphasis added). FN9 See Blumetti v. Unemployment Appeals Comm’n, 675 So. 2d 689 (Fla. 5th DCA 1996)(holding that disqualification cannot be based on Blumetti’s prior record of misconduct if theprecipitating act was excusable). FN10 See generally � 443.021, Fla. Stat. (1997). FN11 See supra notes 7-8. FN12 The referee found that this lapse in attendance was made with “the approval of hisimmediate supervisor.” FN13 The referee found that this lapse in attendance “was for a compelling reason.” FN14 As noted above, the referee made the following findings concerning Mason’s lapses inattendance: December 16 (tardy; unspecified reasons); December 18 (tardy; excused); December20 (tardy; unspecified reasons); December 30 (absent; unspecified reasons); January 27 (absent;unspecified reasons); January 29 (absent; finding a place to live) (counseled); February 3 & 4(suspended); February 8 (left early; excused); February 13 (tardy; excused). The record showsthat Mason’s supervisor, William Cromity, did not recall why Mason was tardy or absent onDecember 16, 20, 30, and January 27. Mason attributed the lapses in attendance to car trouble(December 16, December 20), or he too did not recall (December 30, January 27). Masontestified that he always called in when he was going to be late or absent: REFEREE: Okay. Let me ask you, Mr. Mason, the timesthat you were absent, did you notify someone that you weren’tgonna be reporting for work? MASON: Every time I missed a day, I called. REFEREE: What if you were gonna be late? MASON: When I’m a [sic] be late, I call. FN15 On only one occasion (i.e., concerning Mason’s leaving work early on February 8,1997) did the referee ask whether the lapse in attendance was authorized. FN16 I also would disapprove C. F. Industries, Inc. v. Long, 364 So. 2d 864 (Fla. 2d DCA1978). I would approve the result in Blumetti v. Unemployment Appeals Commission, 675 So.2d 689 (Fla. 5th DCA 1996).

Mason v. Load King Manufacturing Co. Supreme Court of Florida No. SC93356 TIMOTHY MASON, SR., Petitioner, vs. LOAD KING MANUFACTURING COMPANY and the FLORIDAUNEMPLOYMENT APPEALS COMMISSION, Respondents. Application for Review of the Decision of the District Court of Appeal – DirectConflict of Decisions First District No. 1D97-2754 Leatrice Williams Walton and Mitchell S. Ritchie, Jacksonville, Florida,for Petitioner John D. Maher, Tallahassee, Florida,for Respondents [May 11, 2000]
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Elite Trial Lawyers 2021

July 29, 2021

The National Law Journal Elite Trial Lawyers recognizes U.S.-based law firms performing exemplary work on behalf of plaintiffs.


BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


African Legal Awards 2021

September 03, 2021

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


Real Estate Associate, Mid-level

San Francisco, California, United States

Duane Morris LLP has an opening for a real estate associate with 5-6 years of experience working with a firm’s Real Estate/Finance gro...

Apply Now ›


Philadelphia, Pennsylvania, United States

Regional civil litigation firm seeking an attorney with 3-5 years of relevant experience for our Philadelphia office.  Seeking a candid...

Apply Now ›

Philadelphia, PA - Real Estate Associate

Philadelphia, Pennsylvania, United States

Fox Rothschild LLP has an opening in the Philadelphia, PA office for an associate in the Real Estate Department. The ideal candidate will ha...

Apply Now ›



VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.

View Announcement ›



HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.

View Announcement ›



SNYDER SARNO D'ANIELLO MACERI & DACOSTA is Proud to Announce the opening of New Morristown Office!

View Announcement ›