Miami Employment Lawyer Blog

We are seeing many situations in our Miami office where an employee who gets injured on the job is then fired soon after he files a Workers' Compensation Claim. This may constitute illegal retaliation under Section 440.205 of the Florida Statutes. Under the law, when a covered employee gets injured at work, he or she can file a claim under the Florida Workers' Compensation Law, which provides medical coverage and supplemental payments to the employee while he or she is not able to work. However, an employer cannot retaliate against the employee for having filed a Workers' Compensation Claim.

Under the statute, in order to state a claim for retaliation under Section 440.205, the employee must prove that (1) he engaged in a statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the employee's protected activity. These elements were recently addressed by the Third District Court of Appeals (which covers Miami, Florida) in the case of Ortega v. Engineering Technology Services, Inc. In that case, the employee fractured his right wrist when he fell off a ladder at a job site while installing a fire sprinkler system. The employee filed a claim under the Workers' Compensation statute pursuant to which he was given payments for medical treatment and a percentage of his salary, as a result of that work-related accident and injury. When he was released to work without limitations several months later, the company told him that there was no work available for him. On these facts, the trial court granted summary judgment for the employer, but the Appeals Court found that a jury could have reasonably concluded that his termination was a result of having filed a claim under the Workers' Compensation law and remanded the case for further proceedings.

Employees should note, however, that the Workers' Compensation statute only prohibits the retaliatory discharge of an employee because he or she filed a Workers' Compensation claim. An employee can be discharged for any other legitimate business reasons after the filing of a claim, such as unsatisfactory job performance or excessive absenteeism. In fact, many employers have a policy that an employee will be discharged if he or she is absent from work due to a medical condition for more than 90 days in a calendar year. These policies have been deemed to be legitimate under Florida law. Therefore, an employee who files a Workers' Compensation claim must ensure that he or she pursues medical treatment and returns to work as quickly as possible.

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The Miami office of the U.S. Equal Employment Opportunity Commission (EEOC) reported last week that it settled a pregnancy discrimination lawsuit that it filed against Hilton Grand Vacations Company, LLC, an Orlando-based resort company. In that case, an employee who worked as a recruiter was persuaded to resign her job when she became pregnant. According to the complaint that was filed in court, the company had promised to re-hire her after delivering her child. However, Hilton failed to hire her and actually passed her over for several positions when she applied. The consent decree entered by the court requires Hilton to pay $25,000 in monetary damages and also requires the company to conduct training regarding pregnancy discrimination.

Under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, treating women who have complications with their pregnancy different than other employees with a medical condition is pregnancy discrimination. The law provides that pregnant women and women who come back from maternity leave after giving birth, must be given the same rights as any other employee who incurred a similar medical condition.

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Many employees have asked us whether the law requires them to be paid for the time that their employer requires them to report to work early, either to put on their uniforms, to receive instructions prior to the shift, or to continue work in progress in a seamless manner. The response is usually yes, but with a caveat.

Under the Fair Labor Standards Act (FLSA), time spent in activities that are preliminary (before an employee begins his or her principal work) or postliminary (after an employee ends her or her principal work) are not generally compensated unless the activity is directly related and essential to the principal work activity. For example, riding on a bus to get to work and commuting time would not be compensable time. However, the time that a lathe operator takes in cleaning or greasing his machine prior to his shift would most likely be compensable time because those tasks are directly related and essential to the principal work to be performed. Another example would be the putting on and taking off protective clothing and uniforms at the beginning and at the end of the workday. Such time would most likely be compensable time because the employee cannot perform his or her principal duties without putting on the protective clothing.

That was the issue in the lawsuit filed by the U.S. Department of Labor (DOL) against Tyson Foods, Inc. In that case, which was filed in U.S. District Court for the Northern District of Alabama, the DOL sought back wages for poultry processing employees for the time that they spent in putting on and taking off their protective gear and uniforms, as well as the time they spent in sanitizing themselves. After more than seven years of litigation, the DOL reported last week that the company finally agreed to a consent judgment in which it agreed to pay over $500,000.00 to its employees for all of such work. The consent judgment extends to all of the Tyson Foods plants and requires the company to pay all employees for such putting on and taking off their protective uniforms.

Similar issues are faced by persons who work as nurses and machine operators when they are required to report to work before the start of their shift so that they can effectively receive instructions, to replace the employees on the prior shift in a seamless manner and/or to continue the work in progress. This time is referred to as "reporting time" and is compensable under the FLSA.

Continue reading "Preliminary Tasks Such as Putting on and Taking Off Uniforms Must be Compensated Under the Fair Labor Standards Act" »