Anti-Retaliation Provision of the Florida Workers' Compensation Law
This guide gives a basic understanding of an employee's rights who feels that s/he has been the victim of retaliation by a current or subsequent employer due to claiming benefits under the W/C system as an injured employee.
Statutory Authority for a Cause of Action for RetaliationSection 440.205, Fla. Stat. (1991), which is titled "Coercion of employees," reads: "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." Note that a "valid" claim for benefits does not necessarily have to be a claim that results in benefits being provided. Rather, it merely has to seem valid to the employer when made.
Another section of the W/C Law, listing "Prohibited activities," makes it a first degree misdemeanor for any employer to knowingly: (1) Coerce or attempt to coerce, as a precondition to employment or otherwise, an employee to obtain a certificate of election of exemption pursuant to ?440.05; (2) Discharge or refuse to hire an employee or job applicant because the employee or applicant has filed a claim for benefits under this chapter, and (3) Discharge, discipline, or take any other adverse personnel action against any employee for disclosing information to the department or any law enforcement agency relating to any violation or suspected violation of any of the provisions of this chapter or rules promulgated hereunder.
Which Court Has Jurisdiction to Hear the Claim for Retaliation?Jurisdiction for a claim under s440.205 is proper before "a court of competent jurisdiction," which excludes the Judge of Compensation Claims, because the latter has only limited quasi-judicial powers relating to the adjudication of workers' compensation claims for compensation and benefits. A claim for wrongful discharge under s440.205 is not a claim for "compensation" or "benefits" as those terms are used in Chapter 440. So, these cases will most often be heard in the circuit civil state court. Notably, pursuant to 28 U.S.C. ?1445(c), '[a] civil action in any State court arising under the Worker's Compensation laws of such State may not be removed to any district court of the United States.'"
Who Can Be Sued for Retaliation?The Insured Employer -- i.e., the employer at the time of the work accident -- can be sued. Section 440.205 cannot be read to authorize a suit against an employee in his or her individual capacity, though.
Government Employer -- By enacting chapter 440, the Legislature waived sovereign immunity for workers' compensation retaliation claims when the State and its subdivisions are acting as employers.
Subsequent Employers - The court expanded the application of s440.205 to cover an employee who was discharged by subsequent employer for being a high-risk employee after he filed a workers' compensation claim against a former employer for whom he worked at the time he had a work-related accident.
When Must a Retaliation Claim be Brought?All others are fair game to file against as soon as the cause of action accrues, but claims for retaliatory discharge under s440.205 are governed by the four-year statute of limitations.
What is a "Valid" Claim for Benefits? How Much Retaliation is Required?A claim under s440.205 can survive even if no workers' compensation benefits are ever recovered under Chapter 440. Indeed, the claim does not have to be compensable for the retaliation case to survive. An appellate court held that the term "valid," as used in s440.205, should not be construed to mean a compensable claim, only a meritorious claim. The fact that the worker's claim was denied should not bar the retaliation claim, as long as the compensation claim was not frivolous.
Obviously, termination would be sufficient adverse employment action by the employer to constitute retaliation. Demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees might also support a claim, as would egregious pay cuts and shift changes. Even the actual or perceived threat of suit might be sufficient.
Note, though, that employers still retain their traditional right to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism. The statute cannot be interpreted to work an absolute prohibition on the discharge of an employee merely because the employee has filed or pursued a workers' compensation claim.
What Classes of Damages Are Available to a Plaintiff?Lost wages are available, which can include back pay, front pay, or both. Back pay includes any amounts the employee would have earned between the wrongful discharge and the date of trial, less any amounts earned between the wrongful discharge and the trial. In contrast, front pay is money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. When reinstatement of the wrongfully discharged employee is impossible or inadvisable, front pay is awardable in lieu of reinstatement.
To be entitled to an award of lost wages, the employee must be ready, willing, and able to accept employment. Thus, when a plaintiff is unable to return to work for an independent reason not caused by the employer, lost past and future wages and benefits may not be awarded. The 3rd DCA found, for example, that a man who was already on No Work status from a physical standpoint before the retaliatory discharge (but also failed to put on evidence that his physical injuries would sufficiently improve subsequent to trial to the point where he would be able to return to substantially equivalent employment) could not, as a matter of law, recover back pay or front pay.
Reinstatement is not necessary for an employee to prove that reinstatement was not a viable alternative in order to recover lost future wages. Section 440.205 does not authorize the court to order reinstatement of the employee and, at most, evidence that a former employer may have offered to rehire the employee would be defensive in nature.
The purpose of awarding lost wages to a wrongfully discharged employee is to make the employee whole by restoring him to the economic position he would have occupied but for the wrongful discharge.
An employer who violates s440.205 exposes itself to liability for damages for claims of intentional infliction of emotional distress. This could lead to the award of punitive damages, if the employer's "conduct reached the requisite level of culpability." Delay in payment of compensation benefits does not necessarily constitute the intentional infliction of emotional distress. Damages for emotional distress and mental anguish or future psychological/ psychiatric expenses could be zero, even if the court finds that the employer retaliated and evidence is presented that plaintiff suffers from a major depressive disorder and a generalized anxiety disorder caused by the harassment and retaliation suffered at the employer, that the plaintiff has not responded to numerous medications, that the plaintiff cannot presently work due to his psychological damage, and that he will need further psychological and psychiatric treatment.
Attorney's Fees: No relevant statute provides for payment of prevailing party fees. Plaintiff will be responsible to pay his/her attorney pursuant to their retainer agreement/contract for representation.