February 1, 1993 MEMORANDUM TO CLIENTS
In a very unusual factual situation, a Florida appellate court was requested to determine whether an employee's discharge was improper. The case is cited as Benitez v. Girl Friday, Inc., __So.2d__, 17 Fla.L. Weekly D2642 (Fla. 3rd DCA, November 24 1992). Ms. Benitez was in a heated dispute with her manager. The Court's decision recounted in graphic detail a telephone exchange between the two in which Ms. Benitez allegedly called her manager a "liar" and a "f______ son of a b____". While Ms. Benitez denied using the specific language quoted, she agreed that she utilized "epithets generally". The manager was not amused by Ms. Benitez's comments and discharged her. Ms. Benitez then sought unemployment compensation benefits. Ms. Benitez asserted that the argument with her manager occurred because of reduced work hours. The Court was faced with the issue of whether vulgar language used to express a disagreement with a supervisor over pay entitlements prohibits an award of unemployment benefits when the employee is discharged because of the use of vulgar language. The Appellate Court determined that the situation was not necessarily improper and Ms. Benitez discharge was wrongful. The language, over the telephone, was outside the presence of all other persons. The dispute concerned a good faith disagreement by both sides. In an unemployment benefits disqualification hearing the employer bears the burden of proving the former's employee's statutory misconduct. When misconduct is utilized as a ground for disqualification, the misconduct is very narrowly construed. While and employee may be discharged for misconduct, simple misconduct may not necessarily be serious enough to justify a forfeiture of unemployment compensation benefits. Florida law defines misconduct allowing a forfeiture of benefits as being: Conduct evidencing such wilful or wanting disregard of an employers' interest as is found in deliberate violation or disregard of standards or behavior which the employer has the right to expect of his employee. §443.036 (26) Fla. Stat. (1991). In the past when determining whether vulgar language justifies a forfeiture of benefits the Courts have looked at a number of factors including the number of epithets, the presence of other employees or customers, the provocation if any and the object of the language. In this situation the language was isolated, in a private conversation outside the hearing of any other persons and was sparked by a justified dispute. Therefore, it was determined that the compensation benefits could not withheld.
NOTARY LAW STRICTLY ENFORCED Most people know that their signatures can not be notarized unless the signer personally appears before a Notary Public. Last year our * Memorandum to Clients discussed the recent changes the Notary Law prescribing certain forms and stiffening notary requirements. One of the requirements discussed provides:
(emphasis added). The new law recently received its first court test. The Florida Bar v. Farins, ___ So.2d ___, 17 Fla.L. Weekly S698 (November 12, 1992). Mr. Farins requested a Notary Public to notarize documents signed by his clients. At the time the clients were located in North Carolina. Mr. Farins stated that he recognized his clients signatures as valid and did not know that there was a personal appearance requirement in the Notary law. Because of Mr. Farins' efforts, though arguably in good faith, he was found guilty of violating rules of professional conduct and a judgment was entered against him. The notarization of the document was illegal. It was also improper for Mr. Farins to solicit the Notary's signing of the document. Thus, not only is it improper for a Notary Public to notarize a document when the person executing the document is not in the Notary's presence, but it is also improper for someone to request a Notary to notarize a document under such circumstances.
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