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Retaliatory Discharge By An Employer

The last thing an injured worker who is receiving paltry workers compensation benefits needs to hear is that he’s been fired. It’s one thing to be let go from your job because of the company’s economic need to fill your position. It’s quite another, however, to be let go simply because you filed a workers’ compensation claim. In Florida, a worker who can prove that he or she was fired, intimidated or coerced because of a valid claim for workers compensation, or attempt to claim compensation, has a cause of action against the employer for retaliatory discharge. Florida Statute §440.205 reads as follows:
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.
As interpreted by the courts, in order for an employee to make out a primafacie case of retaliation under section 440.205 he needs to prove the following elements: (1) a statutorily protected expression; (2) an adverse employment action; and, (3) a causal connection between participation in the protected expression and the adverse action. See e.g., Russell v. KSL Hotel Corp., 887 So.2d 372 (Fla. 3d DCA 2004). The first prong – “statutorily protected expression” is usually met by evidence that the worker filed a worker’s compensation claim. It’s reasonable to assume that the first prong is also met where the worker has informally requested such benefits after a work-related injury without having filed a claim for benefits. Thus, the statute states that no employer shall discharge an employee by reason of the employee’s “valid claim for compensation or attempt to claim compensation…” There is no language in the statute that says a claim has to be “filed” in order for the injured worker to have a valid claim. Assume for example, that a worker falls off a ladder at work and suffers a broken arm. He’s taken to the hospital and undergoes surgery to repair the fracture. If thereafter he calls his employer to find out who’s going to pay for his medical bills and lost wages while he’s recovering from his injury, and the employer provides him with its workers’ compensation insurance company’s contact information, but later fires the employee because he sought workers compensation benefits, the employee has a cause of action for retaliatory discharge. Note too, that the workers compensation law is meant to be “self-executing” – which means that benefits are are to be provided to the injured worker without the necessity of filing a formal claim or hiring a lawyer to do so. Miami Beach First Nat. Bank v. Dunn, 85 So. 2d 556 (Fla. 1956). Requiring an injured worker to have filed a claim before he could sue for retaliatory discharge would lead to absurd results as it would exempt from section 440.205 those employers who might have voluntarily initiated payment of worker’s compensation benefits to the injured worker but later decide to fire the worker because of his very receipt of such benefits.
The second prong – “an adverse employment action” is easiest to prove since the employee will show that he or she is no longer employed. Note though that being fired is not the only way an employee can show retaliation under section 440.205. If the employer continues to employ the injured worker but makes that worker’s life difficult by, for instance, reducing their pay and making them clean toilets (when previously they were a foreman on the job) such treatment may be considered retaliatory.
The third prong – “a causal connection between participation in the protected expression and the adverse action” is oftentimes the most difficult element for the employee to prove. Here, the employee must, at a minimum, establish that the employer was actually aware of the protected expression at the time it took the adverse employment action. Andrews v. Direct Mail Exp., Inc., 1 So. 3d 1192 (Fla. Dist. Ct. App. 2009). Once the employee establishes a prima facie case by proving that the protected activity and a negative employment action are not completely unrelated, the burden shifts to the employer to proffer a legitimate reason for the adverse employment action. Id. The employer may, for example, establish a pattern of absenteeism or unsatisfactory job performance by the employee, or, may simply show that the employee was incapable of returning to work after a prolonged absence due to his injury. Once the employer establishes a legitimate reason for terminating the employee the burden shifts back to the employee to prove by a preponderance of the evidence that the “legitimate reason” was merely a pretext for the prohibited, retaliatory conduct. Id.  “In order for a reason to be proven to be a ‘pretext for [prohibited, retaliatory conduct]’ it must be shown both that the reason articulated was false, and that discrimination was the real reason for the discharge.” Gray v. Russell Corp., 681 So.2d 310, 312 n. 1 (Fla. 1st DCA 1996).