DEFENDING FLORIDA EMPLOYERS: WORKER’S COMPENSATION RETALIATION CLAIMS

Florida law prohibits retaliation against an employee seeking worker compensation benefits. A recent Florida appellate decision allowed a worker compensation retaliation claim even though the employee never actually filed a worker compensation claim before termination of his employment. Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses and business owners against claims of employment discrimination and retaliation and demands for wages.

Florida Statutes Section 440.205 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.” The Florida Supreme Court’s precedent in Koren v. Sch. Bd. of Miami-Dade County, 97 So. 3d 215 (Fla. 2012), explained that to establish a claim for worker compensation retaliation an employee must prove the following elements:

1) the [employee] was engaged in protected activity;

2) the [employee] was thereafter subjected by his employer to an adverse employment action; and

3) there is a causal link between the protected activity and the adverse employment action.

When an employee “establishes a prima facie case by proving the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the employer to proffer a legitimate reason for the adverse employment action.” Ortega v. Eng’g Sys. Tech., Inc., 30 So. 3d 525 (Fla. 3d DCA 2010).

The recent appellate decision from Florida’s Fourth District Court of Appeal in Salus v. Island Hospitality Florida Management, Inc., 2020 WL 218366, 2020 IER Cases 14901 (Fla. 4th DCA 2020), considered whether an employee may sue for workers’ compensation retaliation after being terminated from his job following an injury, even though the injured employee had not yet filed for workers’ compensation benefits. After being injured on the job, the employee notified his employer of the injury and informed his employer that he was having a difficult time receiving follow-up treatment for his injuries. The employer then terminated him, based on the allegation that the employee threatened a coworker that he would beat him with his “bad arm.”

After the employee sued the employer for retaliation, the employer argued in court that there is no basis for a retaliation claim because no claim for worker’s compensation had been filed at the point of termination. The appellate court rejected the employer’s decision and explained that, although the employee had not filed a claim for worker compensation benefits, he had taken several actions that qualified as an “attempt to claim compensation.” Such an attempt to claim compensation would be protectable under § 440.205, Florida Statutes. The appellate court relied in part on an earlier Florida appellate decision in Flores v. Roof Tile Admin., Inc., 887 So. 2d 360 (Fla. 3d DCA 2004), holding that employee who did not file a workers’ compensation claim could still claim retaliation after providing evidence that he might have been fired because he “wanted to submit a worker’s compensation claim.” The appellate court in Salus therefore required the trial court to evaluate whether the employee had been terminated because of his potential workers’ compensation claim or because of his threat.

The decision in Salus appears to minimize or eliminate the legal requirement of what is legally considered “protected activity” for a claim of retaliation in an employment law context. Employment law generally requires that an employee claiming retaliation for a protected activity show a direct causal connection between the particular protected activity of the employee and the adverse action taken in response to the protected activity. An employee can lose his claim of retaliation when his conduct does not qualify as protected activity. For example, the federal appellate decision in Diamond v. Morris, Manning & Martin, LLP, 457 Fed. Appx. 844 (11th Cir. 2012), explained that an employee’s complaint was not protected when the complaint was not made in good faith or was not objectively reasonable. In addition, as explained in the case of Cheatham v. DeKalb County, Georgia, 682 Fed. Appx. 881 (11th Cir. 2017), an employer can defeat a claim of retaliation by showing that the adverse action did not arise directly from the employee’s complaint.

The appellate decision in Salas suggests the protected activity is not the employee’s conduct, but instead the workplace injury. Salas specifically stated that the trial court “did not consider if the employee’s actions constituted an ‘attempt to claim compensation’” and, therefore, the appellate court could have remanded the matter to the trial court to determine that factual question. Instead, the appellate court in Salus concluded that the employee’s actions qualified as the protected activity, and remanded to the trial court only the question as to the motivation of the termination. This suggests that trial courts may avoid a threshold analysis as to whether certain conduct qualified as an “attempt to claim compensation” in circumstances where there is an on-the-job injury that the employer is aware can evolve into a worker compensation claim. This interpretation is buttressed by Salas’s comment that it would be absurd if “an employer could circumvent section 440.205 by terminating employment immediately after a workplace injury and before the employee even has a chance to file a claim for benefits.”

However, even when an employee’s lawsuit “properly pleads” worker compensation retaliation claim (i.e., a lawsuit that in writing specifies the unproven allegations needed to establish the retaliation claim), this does not mean that the claim will be successful. The employee bears the burden of proof that he or she was terminated because of retaliation as opposed to legitimate non-retaliatory reasons. An employer that successfully demonstrates that the employee was terminated for cause, and not for retaliatory reasons, will always prevail against an employee’s accusation of retaliation. Peter Mavrick is a Fort Lauderdale employment lawyer who defends businesses and their owners. This article does not serve as a substitute for legal advice tailored to a particular situation.