Employees who suffer a work-related injury in Florida are entitled to make a workers’ compensation claim. Employees may be entitled to a variety of benefits, including medical treatment, temporary disability benefits to replace part of the employee’s income until the employee can work again, and permanent disability benefits if the employee has an ongoing injury.
Employees are sometimes reluctant to make a claim, or even to notify an employer of a work injury because they fear their employer will fire them. While Florida law does not prevent employers from firing an employee because the employee was injured, Florida does make it unlawful to fire (or otherwise retaliate against) an employee because the employee made a workers’ compensation claim. A Florida workers’ compensation lawyer can help employees who experience relation after announcing an intent to seek workers’ comp benefits.
When Does an Employee Claim Compensation?
Section 440.205 of the Florida Statutes makes it unlawful for an employer to “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.” To gain protection from retaliation, then, an employee must validly “claim” or “attempt to claim compensation” under Florida’s Workers’ Compensation Law. Lawyers refer to those acts as “protected activities.”
An employee who files a formal petition for workers’ compensation has clearly engaged in protected activity. Fortunately, Florida courts have recognized that employees also gain protection when they make informal claims for compensation. Asking an employer to provide medical treatment after a work injury, or to provide other benefits available under the Florida Workers’ Compensation Law, is protected as an “attempt to claim compensation.”
Florida courts have held that notifying an employer of a work injury and mentioning the employer’s obligation to provide medical treatment or other workers’ compensation is a protected activity, even in the absence of a formal request for benefits. At least one Florida appellate court held that “merely informing one’s employer of a work-related injury is sufficient to meet the standard” of protected activity.
The best way to gain protection against retaliation is to couple notice of a work injury with a clear request for medical treatment and other benefits provided by the Florida Workers’ Compensation Law. Telling an employer, “I was injured while I was working and I need to make a Workers’ Comp claim” is usually enough to gain protection from retaliation.
If you were fired soon after you reported an injury, you should get legal advice, whether or not you specifically mentioned workers’ compensation to your employer. A workers’ compensation attorney can review the facts and provide you with an opinion about the merits of a potential retaliation claim.
When Is an Employee’s Claim for Compensation Valid?
Section 440.205 prohibits retaliation because an employee made a “valid claim” for compensation. Does that mean that only employees who collect compensation are protected against retaliation? Fortunately, the answer is “no.”
Florida courts have decided that the validity of a workers’ compensation claim is not determined by its outcome. Rather, a valid claim is a legitimate claim. A fraudulent claim is not valid. Threatening to bring a claim when no work injury actually occurred is not protected activity. Most injuries at work give rise to a valid claim, even if the employee does not actually receive compensation.
What Conduct is Retaliatory?
Section 440.205 prohibits specific acts of retaliation. The statute makes it unlawful to (1) discharge, (2) threaten to discharge, (3) intimidate, or (4) coerce an employee because the employee engaged in protected conduct. Lawyers refer to those acts as “adverse actions” by employers.
An employer violates Florida law by firing or threatening to fire an employee because the employee engaged in a protected activity. Acts of intimidation or coercion are also unlawful, but courts sometimes struggle to decide whether an employer’s conduct is intimidating or coercive.
Making a threat to induce an employee to withdraw, to refrain from making, or to settle the claim is coercive. Forcing an employee to work on a less desirable shift, or to work with an employee who caused injury, may be examples of retaliatory intimidation.
Subjecting an employee to workplace harassment may also be intimidating, at least when the harassment is severe. One court characterized yelling at an employee as “oral criticism” that failed to meet the standard of “intimidation,” but a practice of repeatedly yelling at an employee might become so abusive that any court would recognize it as intimidating.
How Do Lawyers Prove that an Employer Retaliated?
Most employers are too sophisticated to admit that they are retaliating against an employee because the employer engaged in protected activity. Courts recognize that “smoking gun” evidence — the employer’s confession that the employee is being fired for making a workers’ compensation claim — is rare.
Florida workers’ compensation attorneys look for other evidence when the employer has not admitted that he or she acted with an unlawful motivation. It may be possible to infer a retaliatory intent when an adverse action follows on the heels of the protected activity. An employee who is fired immediately after saying “I’ll be making a claim for workers’ comp benefits” is likely the victim of retaliation.
Courts are more likely to allow juries to infer a retaliatory intent when the time gap between the protected activity and the adverse action is relatively brief. Courts are less willing to allow juries to infer a retaliatory intent when the adverse action occurs several months after the protected activity.
Courts also allow juries to infer a retaliatory intent when the employer’s explanation for the adverse action is false. An employer that gives a demonstrably untrue explanation for firing an employee is probably telling a lie to conceal the truth. An unlawful motivation is a truth an employer would be most inclined to conceal.
Florida workers’ compensation lawyers understand that there are multiple ways to prove retaliatory intent. A careful investigation of the facts should begin while the evidence is still fresh in everyone’s mind. Seeking legal advice promptly will enhance the opportunity to make a successful claim of workers’ compensation retaliation.