DAWN KEAYS, APPELLANT,
v.
THE STATE OF FLORIDA UNEMPLOYMENT APPEALS COMMISSION, AND SPRINGLOCK SCAFFOLDING, INCORPORATED, APPELLEES
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Dawn Keays appealed the denial of her unemployment compensation benefits on the ground that she voluntarily left her employment. The Florida District Court of Appeal reversed, holding that Keays did not voluntarily leave her job when she took a one-week absence for a family emergency with the employer's apparent approval, was not informed of the unacceptability of continued absence, and was not given a choice between returning to work or termination.
Keays did not voluntarily leave her employment. The employer has the duty to establish the appropriate and acceptable length of absence and to notify the employee that continued absence is unacceptable while giving the employee a choice between returning to work or termination. Because Springlock did not do so here and the absence was relatively brief, Keays is entitled to unemployment compensation benefits.
[1] An employee's absence from work due to a family emergency does not constitute voluntarily leaving employment if the employer leads the employee to believe the absence is…
[2] An employer has a duty to notify an employee of the unacceptability of continued absence and offer a choice between termination or return to work when the employee takes…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The authorities relied upon by the parties indicate that, in situations such as this, the claimant should be notified that continued absence is unacceptable, and the employee should be given a choice of termination or of returning to work.”
Establishes the legal standard that an employer must notify an employee of unacceptability of continued absence and give them a choice between returning to work or termination.
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Join FLexlaw to unlock all legal intelligenceKeays worked at Springlock Scaffolding for approximately nine months. She missed a Monday due to illness and called to request a leave of absence for …
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FRANK, Acting Chief Judge.
Dawn Keays has appealed from a decision of the Florida Unemployment Appeals Commission denying her claim for unemployment compensation benefits on the ground that she voluntarily left her employment. We revérse and remand.
This case involves no disputed facts.
The record reveals that Keays had worked at Springlock Scaffolding for approximate ly nine months when she missed a Monday morning because of illness. Keays’ mother called Springlock, and later that afternoon Keays herself called and stated that she needed to take a leave of absence to attend to some family problems out of town. According to the appeals referee, “The Controller indicated that Claimant’s absence was acceptable and the Claimant advised that she would call the Employer on her return.” On Wednesday, Keays’ mother called Springlock to advise of Keays’ status; and on Friday, Keays attempted, apparently unsuccessfully, to call. Keays returned to town the following Monday evening, and when she called in on Tuesday morning she discovered she had been replaced.
The uncontroverted facts reveal that when Keays was terminated, she had been absent from work for one week to take care of a family emergency. Sprin-glock’s right to terminate Keays is not in issue. The appeals referee, however, concluded that Keays had voluntarily left her employment, and therefore unemployment compensation benefits were not available to her. The applicable authorities do not support the Commission’s conclusions.
The authorities relied upon by the parties indicate that, in situations such as this, the claimant should be notified that continued absence is unacceptable, and the employee should be given a choice of termination or of returning to work. See Hartenstein v. Florida Department of Labor and Employment, 383 So. 2d 759 (Fla. 2d DCA 1980); Bonomo v. Division of Employment Security, 346 So. 2d 128 (Fla. 1st DCA 1977).
The inference to be drawn from those cases is that it is the employer’s — not the employee’s — duty to establish the appropriate and acceptable length of absence. In those cases where that burden has been placed upon the employee, extenuating circumstances were found to exist. For example, in Nofrio v. Department of Labor and Employment Security, 442 So. 2d 268 (Fla. 2d DCA 1983), the employee informed her employer that she would be taking a vacation trip of several months, and she left with no specific understanding that her job would remain open. Within that context, this court concluded that she had voluntarily left her job without good cause and was not entitled to unemployment benefits. Similarly, the claimant in Flagler County Sheriffs Department v. Florida Department of Labor and Employment Security, 421 So. 2d 1107 (Fla. 5th DCA 1982), left her job on a medical leave on the day before a new sheriff was to be installed in office. She had made arrangements to take the leave only with the outgoing sheriff, and she had made no effort to communicate the details of her absence to the new sheriff. The court rightly found that it was her duty to preserve her right to reemployment.
It is noteworthy that both Nofrio and Flagler County involved long absences of several months’ duration. Garcia v. AT & T Communications, Inc., 575 So. 2d 730 (Fla.1991), involved a similarly long leave. In Garcia the claimant was denied unemployment benefits because she had been informed prior to taking her six-month leave that a job might not be available for her upon her return. The critical point, as expressed in Garcia, Hartenstein, and Bo-nomo, is that the employee was or should have been informed of her option to continue her absence or to return to work. In this case Springlock led Keays to believe that her absence was excused. Springlock was not explicit about its expectations as to when Keays should return to work, and her absence was relatively brief.
Accordingly, competent, substantial evidence does not exist to support the appeals referee’s decision that Keays voluntarily left her employment, and we reverse the decision of the Unemployment Appeals Commission. Upon remand, the Commission shall reinstate Keays’ unemployment compensation benefits arising out of her termination from Springlock Scaffolding.
THREADGILL and PARKER, JJ., concur.
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Lewis v. Lakeland Health Care Ctr., Inc., 685 So. 2d 876 (Fla. 2d DCA 1996)…Ed.2d 636 (1995); Marcelo v. Department of Labor & Employ. Sec., 453 So. 2d 927 (Fla. 2d DCA 1984); Uniweld Products, Inc. v. Industrial Relations Comm’n, 277 So. 2d 827 (Fla. 4th DCA 1973). Cf. Keays v. State of Florida Unemployment Appeals Comm’n, 592 So. 2d 1255 (Fla. 2d DCA 1992) (holding that employer did not meet its burden of establishing claimant left her employment where employer failed to specify acceptable length of absence). When applying this standard to the facts of this case, we must conclude t…
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Sanford Meyers v. Quality Extruded Prods., Inc., 611 So. 2d 54 (Fla. 3d DCA 1992)…n agreement for a leave of absence presumes that an employee has a job upon his/her return. Thus, it is the employer’s duty to inform the employee on the acceptable terms of the leave of absence. See Keays v. Florida Unemployment Appeals Commission, 592 So. 2d 1255, 1256 (Fla. 2d DCA 1992). Where an employer fails to notify its employee that absence from employment is not acceptable and such failure leads the employee to believe that the leave of absence is excused, the absence of the employee cannot support a…
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Foote v. Unemployment Appeals Comm'n, 659 So. 2d 1232 (Fla. 5th DCA 1995)…(Fla.1992) (employee who left work for one week did not voluntarily leave employment without good cause; her son had chicken pox and she was unable, despite diligent efforts, to arrange supervision for him); Keays v. Unemployment Appeals Commission, 592 So. 2d 1255 (Fla. 2d DCA 1992) (employee’s absence from work for one week to take care of a family emergency did not support the determination that she voluntarily left her employment); Campbell v. Department of Labor and Employment Security, 455 So. 2d 569 (Fl…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hartenstein v. Fla. Dep't OF Labor & Emp. Sec., 383 So. 2d 759 (Fla. 2d DCA 1980)
- Taylor v. City Nat'l Bank, 575 So. 2d 730 (Fla. 3d DCA 1991)
- Flagler Cnty. Sheriff's Dep't v. Fla. Dep't OF Labor & Emp. Sec., 421 So. 2d 1107 (Fla. 5th DCA 1982)
- Nofrio v. Dep't OF Labor & Emp. Sec., 442 So. 2d 268 (Fla. 2d DCA 1983)
- Bonomo v. Div. OF Emp. Sec. of the State of Fla. Dep't OF Commerce & Sears, 346 So. 2d 128 (Fla. 1st DCA 1977)