Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Florida’s Workers’ Compensation Retaliation Law:

Florida law prohibits an employer from:

• discharging,
  
• threatening to discharge,
  
• intimidating, or
  
• coercing any employee
  

because of that employee’s

• valid claim for compensation or
  
• attempt to claim compensation under Florida’s Workers’ Compensation Law.
  

Florida employers should be aware that a business can still be sued under this law even if they do not fire an employee.  This is because this Florida law covers coercion of employees as it relates to worker’s compensation claims and creates a cause of action for retaliatory intimidation or coercion absent a discharge.  The reasoning for this is that when the Florida legislature passed this law, it intended to protect the employee’s access to workers’ compensation remedy and not allow an employer’s intimidation or coercion to discourage filing valid claims, and to ensure the prompt delivery of benefits to the injured worker.

In general, a claim under Florida’s workers’ compensation retaliation law has the same elements as employment retaliation claims under federal law: (1) the employee engaged in statutorily protected activity, (2) was subjected to an adverse employment action, and (3) there was a causal relationship between the protected activity and the adverse employment action. Such claims are subject to a burden-shifting framework, under which the employee must come forward with a prima facie case. The burden then shifts to the employer to articulate a non-discriminatory reason for the adverse action, and if that burden is met, the employee must demonstrate that the employer’s reason was pretextual. The employee does not need to establish that his workers' compensation claim was the only reason for the discharge or prove a specific retaliatory intent on the part of the employer.

This means that Florida’s workers’ compensation retaliation law does not require that the employee’s pursuit of worker’s compensation benefits be the only reason for a discharge, but rather, prohibits any discharge “by reason of” an attempt to claim compensation, even if there may also be other reasons for the discharge, and while it has been characterized as a “retaliatory discharge” provision, a specific retaliatory intent is not required by the express statutory language.

No published case in Florida has held that a claim under Florida’s workers’ compensation retaliation law is viable in the absence of the filing of a workers' compensation claim or an affirmative attempt or threat to do so. One court held that an employee “attempted” to claim compensation, satisfying the requirement of protected activity, when the employee completed injury forms and was driven by supervisors to clinic for treatment. 

This law allows an employee to sue a Florida company for retaliatory discharge of an employee who attempted to seek workers’ compensation benefits, even if no benefits were recovered by the employee.

At least one Florida Court found that where an employee alleged wrongful discharge against an employer (city) under Florida’s workers’ compensation retaliation statute, the employee did not have to exhaust grievance and administrative remedies contained in the collective bargaining agreement between employee’s union and the employer.

When an employee sues a Florida company under this law, the lawsuit cannot be against an employee in his or her individual capacity.

If an employee sues your Florida company under this law, the employee can seek to recover damages for emotional distress against the former employer.

Florida employees can sue their employers a long time after they felt that they were terminated or coerced because the retaliatory discharge claims filed pursuant to Fla. Stat. § 440.205 can be brought within a four-year statute of limitations.

If your Florida business has questions about workers' compensation retaliation, please email our law firm or call us at 1-772-465-5111.