Florida Workers' Compensation Act Creates Exception to Rule of "At-will Employment"
Employment relationships in Florida long have been governed by the traditional "at-will" doctrine. Under the atwill philosophy, "where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract." Smith v. Piezo Technology and Professional Administrators, 427 So 2d 182 (Fla. 1983).The at-will doctrine is subject to very few exceptions, and the Florida courts have not recognized any exceptions to the doctrine unless through a clear statement of public policy by the legislature in enacting a statute. One such exception lies embedded within the Florida Workers' Compensation Act (FWCA).
Section 440.205 of the Florida Statutes states in pertinent part that "[n]o 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." Importantly, actual discharge of an employee is not necessary for a plaintiff to bring a retaliation claim under the statute which clearly specifies an employer may not "threaten to discharge, intimidate, or coerce any employee" who plans to file a workers' compensation claim. Furthermore, the statute is available to an individual who may have been discharged for other reasons in addition to pursuing a claim for workers' compensation benefits.
A plaintiff bringing a claim for workers' compensation retaliation is permitted by the statute to recover for lost wages, lost earning capacity, and medical benefits. The statute is silent as to whether attorney's fees are recoverable, however, the courts have held that attorney's fees are not awardable when a court finds that an employee has been wrongfully discharged for filing a workers' compensation claim. The courts also have held that an employer violating the anti-retaliation provisions of the statute has committed an intentional "tort" or wrongful act. This creates the possibility of additional liability for emotional distress for which there is a four-year statute of limitations period for bringing such retaliation claims. See Scott v. Otis Elevator Co., 524 So 2d 642 (Fla. 1988).
A recent case decided by the U. S. District Court for the Southern District of Florida illustrates how liability is determined in an individual's claim that he or she was retaliated against for filing for workers' compensation benefits. In that case, Humphrey v. Sears Roebuck & Co., 192 F.Supp.2d 1371 (S.D. Fla. 2002), the court applied the same analysis used in retaliation claims under the federal Title VII of the Civil Rights Act.
When establishing the necessary elements for a claim of retaliatory discharge under the Florida workers' compensation statute, an injured employee must show: 1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) the adverse action was in some way related to the protected activity. An employee has shown a causal connection between her protected activity and the adverse employment action when she has provided evidence that: (1) the employer became aware of the protected conduct; and (2) there was a close temporal proximity between that awareness and the subsequent job termination.
At that point, the employer must offer a legitimate and nondiscriminatory reason for the termination. If this is done, the burden goes back to the employee to show that the employer's reason is a pretext, that the reason had no basis in fact, that it was not the true factor motivating the termination decision, or that the employer's reason was not sufficient to motivate the decision.
As stated above, the Humphrey case illustrates these points. The plaintiff in that case had delivered two doctors' notes to her supervisor on December 19 or 20, 2000. One of the notes said she would be able to return to work on light duty on December 28, and she claimed to have asked her supervisor to fill out a workers' compensation claim form on December 24, 2000.
On January 4, 2001, the employee had not appeared for work nor called to be excused in accordance with the employer's policy, and her employment was terminated. She later claimed she did not know she had been scheduled to work those dates, and she sued for retaliation under the Florida Workers' Compensation Act.
Using the analysis described above, the district court found the employee had established the grounds for a case of retaliation based on the timing of her termination which occurred 11 days after she filed a claim for workers' compensation benefits. However, the court found the employer's reason for the termination (her no-call/no-show) had a basis in fact and was not a pretext. Thus, the court found the employer had not retaliated against the employee in violation of the statute and dismissed the claim.
Editors Note: Filing a workers' compensation claim does not prevent an employer from justifiably terminating an employee for a legitimate nondiscriminatory reason, such as failure to perform. However, as this case illustrates, an employee easily can establish the grounds for a claim of retaliation based on the timing of events, if the termination or other adverse job action is in close proximity to the time the claim for benefits was made. Therefore, it is particularly important for an employer to make sure there is a good foundation supported by a documented recording of the facts for any adverse employment action occurring soon after a workers' compensation claim is filed.