GREG GOMEZ, APPELLANT,
v.
UNEMPLOYMENT APPEALS COMMISSION AND ASSET ACCEPTANCE LLC, APPELLEES
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Greg Gomez appealed a denial of unemployment benefits based on alleged misconduct for violating his employer's Internet use policy. The court reversed, finding that the factual basis for the misconduct determination relied entirely on inadmissible hearsay evidence without sufficient admissible evidence to support the disqualification.
The court held that the evidence was insufficient to prove misconduct because the factual finding was based entirely on hearsay evidence that was inadmissible under Florida law. Hearsay evidence alone cannot prove a material fact in issue unless it would be admissible over objection in a civil proceeding.
[1] Hearsay evidence is insufficient, standing alone, to prove a material fact in issue in unemployment compensation hearings.
[2] Hearsay evidence is admissible in unemployment compensation hearings only for the purpose of explaining or supplementing other evidence.
Previewing 2 of 4 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“hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding.”
Establishes the legal standard for admissibility of hearsay in unemployment compensation proceedings
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Join FLexlaw to unlock all legal intelligenceGomez was employed as a skip tracer for a collection agency from May 2001 to December 2002. On December 6, 2002, he received a final warning for using…
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SILBERMAN, Judge.
Greg Gomez appeals a final order of the Unemployment Appeals Commission (UAC) affirming the appeals referee’s decision that Gomez is disqualified from receipt of benefits because he was discharged for misconduct connected with work. We reverse the order because the factual finding to support the determina,tion of misconduct was based entirely on hearsay evidence.
The decision of the appeals referee reflects that Gomez was employed as a skip tracer for a collection agency from May 21, 2001, until December 30, 2002. The appeals referee based his finding of misconduct on (1) a final warning issued to Gomez on December 6, 2002, for using the Internet for personal reasons during business hours, in violation of the employer’s policy; (2) Gomez’s subsequent promise not to use the Internet for nonbusiness purposes; and (3) hearsay testimony that a computer-generated report, which was not introduced into evidence, showed that Gomez repeatedly broke that promise from December 7, 2002, through December 23, 2002, and accessed Internet sites for non-business purposes. Although the referee mentioned an earlier final warning given to Gomez in June 2002 for insubordination, the referee specifically relied on the Internet abuse that occurred after the December 6 warning to find misconduct.
The UAC upheld the referee’s decision, with one member dissenting. We agree with Commissioner Forst’s dissenting opinion that evidence of any Internet abuse after the warning of December 6, 2002, was hearsay and insufficient to support a finding of misconduct. In unemployment compensation hearings, “hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding.” Yost v. Unemployment Appeals Comm’n, 848 So. 2d 1235, 1237 (Fla. 2d DCA 2003); see also § 120.57(l)(c), Fla. Stat. (2003). Although the employer had the right to terminate Gomez, the evidence was insufficient to prove misconduct connected with work so as to deny unemployment compensation benefits. See Yost, 848 So. 2d at 1238. Therefore, we reverse the final order of the UAC and remand with directions to award Gomez unemployment compensation benefits.
Reversed and remanded.
FULMER and VILLANTI, JJ., Concur.
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