An employees guide to workers compensation retaliation under Florida Statute 440.205.
What rights to employees have in Florida while out on a workers compensation claim?Florida Statute 440.205 states "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law." This statute includes the majority of employers in the state of Florida. There is a specific exclusion for religious institutions.
What "employees" are excluded from the protections afforded by Florida Statute 440.205?The following is a general list of "employees" that are not protected under Florida Statute 440.205:
1. Independent contractors;
2. Real estate salespersons or agents, if working under a written agreement to be compensated solely by commission;
3. Certain band, orchestra, musical and theatrical performers;
4. Certain owner-operators of motor vehicles;
5. Certain "casual" workers;
6. Certain volunteers;
7. Certain "exercise riders"
8. Certain drivers of vehicles-for-hire; and
9. Certain sport officials.
What is considered to a "valid" claim for compensation?The term "valid" has been interpreted to include any meritorious claims even if the claim is not a "compensable" claim. This essentially means that the fact a workers compensation claim is being contested by the carrier does not preclude protection under the statute.
Can employers retaliate against me for prior workers compensation claims with another employer?At least one court has answered that question with a "no". The First District Court of Appeals has found that it is unlawful for an employer to retaliate against an employee for filing a valid claim against a prior employer. Bruner v. GC-GW, Inc., 880 So.2d 1244 (Fla. 1st DCA 2004).
Do I have to prove that the employer retaliated against me exclusively for my filing a valid claim for compensation?Not necessarily. At least one court has held that the employee does not have to prove that retaliation for filing a valid claim for compensation was the sole motivating factor for the retaliation; but rather only needs to show that it was a substantial motivating factor. Allan v. SWF Gulf Coast, Inc. 535 So.2d 638 (Fla. 1st DCA 1988).
What damages are available for a successful claim for workers compensation retaliation?The following is a general summary of the damages available:
1. Back pay;
2. Future lost wages;
3. Damages for emotional distress;
4. Punitive Damages;