2011 Florida Statutes
Procedure concerning claims.
Procedure concerning claims.
443.151 Procedure concerning claims.—
(1) POSTING OF INFORMATION.—
(a) Each employer must post and maintain in places readily accessible to individuals in her or his employ printed statements concerning benefit rights, claims for benefits, and other matters relating to the administration of this chapter as the Department of Economic Opportunity may by rule prescribe. Each employer must supply to individuals copies of printed statements or other materials relating to claims for benefits as directed by the rules of the department. The department shall supply these printed statements and other materials to each employer without cost to the employer.
(b)1. The department shall advise each individual filing a new claim for unemployment compensation, at the time of filing the claim, that:
a. Unemployment compensation is subject to federal income tax.
b. Requirements exist pertaining to estimated tax payments.
c. The individual may elect to have federal income tax deducted and withheld from the individual’s payment of unemployment compensation at the amount specified in the federal Internal Revenue Code.
d. The individual is not permitted to change a previously elected withholding status more than twice per calendar year.
2. Amounts deducted and withheld from unemployment compensation must remain in the Unemployment Compensation Trust Fund until transferred to the federal taxing authority as payment of income tax.
3. The department shall follow all procedures specified by the United States Department of Labor and the federal Internal Revenue Service pertaining to the deducting and withholding of income tax.
4. If more than one authorized request for deduction and withholding is made, amounts must be deducted and withheld in accordance with the following priorities:
a. Unemployment overpayments have first priority;
b. Child support payments have second priority; and
c. Withholding under this subsection has third priority.
(2) FILING OF CLAIM INVESTIGATIONS; NOTIFICATION OF CLAIMANTS AND EMPLOYERS.—
(a) In general.—Initial and continued claims for benefits must be made by approved electronic means and in accordance with rules adopted by the Department of Economic Opportunity. The department must notify claimants and employers regarding monetary and nonmonetary determinations of eligibility. Investigations of issues raised in connection with a claimant which may affect a claimant’s eligibility for benefits or charges to an employer’s employment record shall be conducted by the department through written, telephonic, or electronic means as prescribed by rule.
(b) Process.—When the Unemployment Compensation Claims and Benefits Information System described in s. 443.1113 is fully operational, the process for filing claims must incorporate the process for registering for work with the workforce information systems established pursuant to s. 445.011. A claim for benefits may not be processed until the work registration requirement is satisfied. The department may adopt rules as necessary to administer the work registration requirement set forth in this paragraph.
(3) DETERMINATION OF ELIGIBILITY.—
(a) Notices of claim.—The Department of Economic Opportunity shall promptly provide a notice of claim to the claimant’s most recent employing unit and all employers whose employment records are liable for benefits under the monetary determination. The employer must respond to the notice of claim within 20 days after the mailing date of the notice, or in lieu of mailing, within 20 days after the delivery of the notice. If a contributing employer fails to timely respond to the notice of claim, the employer’s account may not be relieved of benefit charges as provided in s. 443.131(3)(a), notwithstanding paragraph (5)(b). The department may adopt rules as necessary to implement the processes described in this paragraph relating to notices of claim.
(b) Monetary determinations.—In addition to the notice of claim, the department shall also promptly provide an initial monetary determination to the claimant and each base period employer whose account is subject to being charged for its respective share of benefits on the claim. The monetary determination must include a statement of whether and in what amount the claimant is entitled to benefits, and, in the event of a denial, must state the reasons for the denial. A monetary determination for the first week of a benefit year must also include a statement of whether the claimant was paid the wages required under s. 443.091(1)(g) and, if so, the first day of the benefit year, the claimant’s weekly benefit amount, and the maximum total amount of benefits payable to the claimant for a benefit year. The monetary determination is final unless within 20 days after the mailing of the notices to the parties’ last known addresses, or in lieu of mailing, within 20 days after the delivery of the notices, an appeal or written request for reconsideration is filed by the claimant or other party entitled to notice. The department may adopt rules as necessary to implement the processes described in this paragraph relating to notices of monetary determinations and the appeals or reconsideration requests filed in response to such notices.
(c) Nonmonetary determinations.—If the department receives information that may result in a denial of benefits, the department must complete an investigation of the claim required by subsection (2) and provide notice of a nonmonetary determination to the claimant and the employer from whom the claimant’s reason for separation affects his or her entitlement to benefits. The determination must state the reason for the determination and whether the unemployment tax account of the contributing employer is charged for benefits paid on the claim. The nonmonetary determination is final unless within 20 days after the mailing of the notices to the parties’ last known addresses, or in lieu of mailing, within 20 days after the delivery of the notices, an appeal or written request for reconsideration is filed by the claimant or other party entitled to notice. The department may adopt rules as necessary to implement the processes described in this paragraph relating to notices of nonmonetary determination and the appeals or reconsideration requests filed in response to such notices, and may adopt rules prescribing the manner and procedure by which employers within the base period of a claimant become entitled to notice of nonmonetary determination.
(d) Determinations in labor dispute cases.—Whenever any claim involves a labor dispute described in s. 443.101(4), the department shall promptly assign the claim to a special examiner who shall make a determination on the issues involving unemployment due to the labor dispute. The special examiner shall make the determination after an investigation, as necessary. The claimant or another party entitled to notice of the determination may appeal a determination under subsection (4).
1. The department may reconsider a determination if it finds an error or if new evidence or information pertinent to the determination is discovered after a prior determination or redetermination. A redetermination may not be made more than 1 year after the last day of the benefit year unless the disqualification for making a false or fraudulent representation under s. 443.101(6) is applicable, in which case the redetermination may be made within 2 years after the false or fraudulent representation. The department must promptly give notice of redetermination to the claimant and to any employers entitled to notice in the manner prescribed in this section for the notice of an initial determination.
2. If the amount of benefits is increased by the redetermination, an appeal of the redetermination based solely on the increase may be filed as provided in subsection (4). If the amount of benefits is decreased by the redetermination, the redetermination may be appealed by the claimant if a subsequent claim for benefits is affected in amount or duration by the redetermination. If the final decision on the determination or redetermination to be reconsidered was made by an appeals referee, the commission, or a court, the department may apply for a revised decision from the body or court that made the final decision.
3. If an appeal of an original determination is pending when a redetermination is issued, the appeal unless withdrawn is treated as an appeal from the redetermination.
(a) Appeals referees.—The Department of Economic Opportunity shall appoint one or more impartial salaried appeals referees in accordance with s. 443.171(3) to hear and decide appealed claims. A person may not participate on behalf of the department as an appeals referee in any case in which she or he is an interested party. The department may designate alternates to serve in the absence or disqualification of any appeals referee on a temporary basis. These alternates must have the same qualifications required of appeals referees. The department shall provide the commission and the appeals referees with proper facilities and assistance for the execution of their functions.
(b) Filing and hearing.—
1. The claimant or any other party entitled to notice of a determination may appeal an adverse determination to an appeals referee within 20 days after the date of mailing of the notice to her or his last known address or, if the notice is not mailed, within 20 days after the date of delivering the notice.
2. Unless the appeal is untimely or withdrawn or review is initiated by the commission, the appeals referee, after mailing all parties and attorneys of record a notice of hearing at least 10 days before the date of hearing, notwithstanding the 14-day notice requirement in s. 120.569(2)(b), may only affirm, modify, or reverse the determination. An appeal may not be withdrawn without the permission of the appeals referee.
3. However, if an appeal appears to have been filed after the permissible time limit, the Office of Appeals may issue an order to show cause to the appellant which requires the appellant to show why the appeal should not be dismissed as untimely. If, within 15 days after the mailing date of the order to show cause, the appellant does not provide written evidence of timely filing or good cause for failure to appeal timely, the appeal shall be dismissed.
4. If an appeal involves a question of whether services were performed by a claimant in employment or for an employer, the referee must give special notice of the question and of the pendency of the appeal to the employing unit and to the department, both of which become parties to the proceeding.
5.a. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath.
b. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs is admissible, whether or not such evidence would be admissible in a trial in state court.
c. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, or to support a finding if it would be admissible over objection in civil actions. Notwithstanding s. 120.57(1)(c), hearsay evidence may support a finding of fact if:
(I) The party against whom it is offered has a reasonable opportunity to review such evidence prior to the hearing; and
(II) The appeals referee or special deputy determines, after considering all relevant facts and circumstances, that the evidence is trustworthy and probative and that the interests of justice are best served by its admission into evidence.
6. The parties must be notified promptly of the referee’s decision. The referee’s decision is final unless further review is initiated under paragraph (c) within 20 days after the date of mailing notice of the decision to the party’s last known address or, in lieu of mailing, within 20 days after the delivery of the notice.
(c) Review by commission.—The commission may, on its own motion, within the time limit in paragraph (b), initiate a review of the decision of an appeals referee. The commission may also allow the department or any adversely affected party entitled to notice of the decision to appeal the decision by filing an application within the time limit in paragraph (b). An adversely affected party has the right to appeal the decision if the department’s determination is not affirmed by the appeals referee. The commission may affirm, modify, or reverse the findings and conclusions of the appeals referee based on evidence previously submitted in the case or based on additional evidence taken at the direction of the commission. The commission may assume jurisdiction of or transfer to another appeals referee the proceedings on any claim pending before an appeals referee. Any proceeding in which the commission assumes jurisdiction before completion must be heard by the commission in accordance with the requirement of this subsection for proceedings before an appeals referee. When the commission denies an application to hear an appeal of an appeals referee’s decision, the decision of the appeals referee is the decision of the commission for purposes of this paragraph and is subject to judicial review within the same time and manner as decisions of the commission, except that the time for initiating review runs from the date of notice of the commission’s order denying the application to hear an appeal.
(d) Procedure.—The manner that appealed claims are presented must comply with the commission’s rules. Witnesses subpoenaed under this section are allowed fees at the rate established by s. 92.142, and fees of witnesses subpoenaed on behalf of the department or any claimant are deemed part of the expense of administering this chapter.
(e) Judicial review.—Orders of the commission entered under paragraph (c) are subject to review only by notice of appeal in the district court of appeal in the appellate district in which a claimant resides or the job separation arose or in the appellate district where the order was issued. However, if the notice of appeal is filed solely with the commission, the appeal shall be filed in the district court of appeal in the appellate district in which the order was issued. Notwithstanding chapter 120, the commission is a party respondent to every such proceeding. The department may initiate judicial review of orders in the same manner and to the same extent as any other party.
(5) PAYMENT OF BENEFITS.—
(a) The Department of Economic Opportunity shall promptly pay benefits in accordance with a determination or redetermination regardless of any appeal or pending appeal. Before payment of benefits to the claimant, however, each employer who is liable for reimbursements in lieu of contributions for payment of the benefits must be notified, at the address on file with the department or its tax collection service provider, of the initial determination of the claim and must be given 10 days to respond.
(b) The department shall promptly pay benefits, regardless of whether a determination is under appeal if the determination allowing benefits is affirmed in any amount by an appeals referee or is affirmed by the commission, or if a decision of an appeals referee allowing benefits is affirmed in any amount by the commission. In these instances, a court may not issue an injunction, supersedeas, stay, or other writ or process suspending payment of benefits. A contributing employer that responded to the notice of claim within the time limit provided in subsection (3) may not, however, be charged with benefits paid under an erroneous determination if the decision is ultimately reversed. Benefits are not paid for any subsequent weeks of unemployment involved in a reversal.
(c) The provisions of paragraph (b) relating to charging an employer liable for contributions do not apply to reimbursing employers.
(6) RECOVERY AND RECOUPMENT.—
(a) Any person who, by reason of her or his fraud, receives benefits under this chapter to which she or he is not entitled is liable for repaying those benefits to the Department of Economic Opportunity on behalf of the trust fund or, in the discretion of the department, to have those benefits deducted from future benefits payable to her or him under this chapter. To enforce this paragraph, the department must find the existence of fraud through a redetermination or decision under this section within 2 years after the fraud was committed. Any recovery or recoupment of benefits must be effected within 5 years after the redetermination or decision.
(b) Any person who, by reason other than her or his fraud, receives benefits under this chapter to which, under a redetermination or decision pursuant to this section, she or he is not entitled, is liable for repaying those benefits to the department on behalf of the trust fund or, in the discretion of the department, to have those benefits deducted from any future benefits payable to her or him under this chapter. Any recovery or recoupment of benefits must be effected within 3 years after the redetermination or decision.
(c) Any person who, by reason other than fraud, receives benefits under this chapter to which she or he is not entitled as a result of an employer’s failure to respond to a claim within the timeframe provided in subsection (3) is not liable for repaying those benefits to the department on behalf of the trust fund or to have those benefits deducted from any future benefits payable to her or him under this chapter.
(d) Recoupment from future benefits is not permitted if the benefits are received by any person without fault on the person’s part and recoupment would defeat the purpose of this chapter or would be inequitable and against good conscience.
(e) The department shall collect the repayment of benefits without interest by the deduction of benefits through a redetermination or by a civil action.
(f) Notwithstanding any other provision of this chapter, any person who is determined by this state, a cooperating state agency, the United States Secretary of Labor, or a court to have received any payments under the Trade Act of 1974, as amended, to which the person was not entitled shall have those payments deducted from any regular benefits, as defined in s. 443.1115(1)(e), payable to her or him under this chapter. Each such deduction may not exceed 50 percent of the amount otherwise payable. The payments deducted shall be remitted to the agency that issued the payments under the Trade Act of 1974, as amended, for return to the United States Treasury. Except for overpayments determined by a court, a deduction may not be made under this paragraph until a determination by the state agency or the United States Secretary of Labor is final.
(7) REPRESENTATION IN ADMINISTRATIVE PROCEEDINGS.—In any administrative proceeding conducted under this chapter, an employer or a claimant has the right, at his or her own expense, to be represented by counsel or by an authorized representative. Notwithstanding s. 120.62(2), the authorized representative need not be a qualified representative.
(8) BILINGUAL REQUIREMENTS.—
(a) The Department of Economic Opportunity shall provide printed bilingual instructional and educational materials in the appropriate language in those counties in which 5 percent or more of the households in the county are classified as a single-language minority.
(b) The department shall ensure that one-stop career centers and appeals offices located in counties subject to the requirements of paragraph (c) prominently post notices in the appropriate languages and that translators are available in those centers and offices.
(c) As used in this subsection, the term “single-language minority” means households that speak the same non-English language and that do not contain an adult fluent in English. The department shall develop estimates of the percentages of single-language minority households for each county by using data from the United States Bureau of the Census.
History.—s. 7, ch. 18402, 1937; CGL 1940 Supp. 4151(494); s. 7, ch. 20685, 1941; s. 1, ch. 21982, 1943; s. 2, ch. 24083, 1947; s. 10, ch. 26484, 1951; s. 4, ch. 26879, 1951; s. 4, ch. 28242, 1953; ss. 1, 2, 3, 4, ch. 29769, 1955; s. 1, ch. 57-268; s. 3, ch. 61-132; ss. 17, 35, ch. 69-106; s. 1, ch. 70-87; s. 1, ch. 72-154; s. 11, ch. 78-95; s. 4, ch. 78-386; s. 23, ch. 79-7; s. 3, ch. 79-308; s. 184, ch. 79-400; ss. 5, 8, 9, ch. 80-95; s. 4, ch. 80-345; s. 4, ch. 82-91; s. 1, ch. 82-178; s. 12, ch. 83-174; s. 3, ch. 90-89; s. 7, ch. 96-378; s. 200, ch. 96-410; s. 7, ch. 96-411; s. 1065, ch. 97-103; s. 9, ch. 98-149; s. 104, ch. 2000-153; s. 106, ch. 2000-165; s. 39, ch. 2003-36; s. 7, ch. 2005-209; s. 11, ch. 2010-90; s. 372, ch. 2011-142; s. 11, ch. 2011-235.
Note.—Former s. 443.07.