BACKGROUND CHECKS & COMPLIANCE: WORKER’S COMPENSATION CLAIMS

Some employers might wish to know whether a job applicant or current employee previously filed worker’s compensation claims. At first glance, such information might seem relevant and even useful to employers. For example, an employer in an accident-prone industry might want to know if the job applicant has a history of repeatedly filing worker’s compensation claims shortly after beginning his or her employment. However, it is important that employers understand the liability that could result from using an applicant/employee’s previous worker’s compensation claims as a basis for making employment decisions.

Using an applicant/employee’s worker’s compensation claim to make adverse employment decisions could result in criminal liability for the employer. Under Florida law, it is a first degree misdemeanor to knowingly fire an employee or refuse to hire an applicant because the applicant/employee filed a worker’s compensation claim.

Employers could also face civil liability if they fire, threaten to fire, intimidate, or coerce an employee because the employee filed a worker’s compensation claim. Additionally, employers could face civil liability if they fire an employee after learning that the employee filed a worker’s compensation claim against a previous employer.

However, Florida law does not seem to impose civil liability on an employer who refuses to hire a job applicant after learning that the applicant filed worker’s compensation claims against previous employers. Bruner v. GC-GW, Inc., 880 So. 2d 1244, 1252 (Fla. 1st DCA 2004) (Kahn, J., dissenting) (“Florida apparently does not recognize a civil cause of action against a subsequent employer who refuses to hire a job applicant for having filed a workers’ compensation claim against a previous employer”). Employers should note, however, that while employers might not be subject to civil liability for refusing to hire an applicant based on previous worker’s compensation claims, Florida law does impose criminal liability for such refusals to hire.

An employer who takes any adverse employment action based on an applicant/employee’s previous worker’s compensation claims might also be liable under the federal Americans with Disabilities Act (“ADA”). Under the federal ADA, an employer cannot make inquiries regarding an applicant/employee’s disability or the nature or severity of such disability. The employer, however, is allowed to make pre-employment inquiries about the applicant’s ability to perform job-related functions. The ADA further allows employers under certain circumstances to make medical examinations after making a conditional offer of employment to the applicant.

While some employers might consider information regarding past worker’s compensation claims relevant to their employment decisions, it is important to note that inquiries into past worker’s compensation claims could result in both civil and criminal liability. Before implementing a background check policy that includes inquiries into job applicants’ past worker’s compensation claims, employers should consult an attorney in their respective state to ensure compliance with the applicable laws.

Peter T. Mavrick has successfully represented many employers in labor and employment matters. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.