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.

Continue reading "Being Fired After Filing a Workers' Compensation Claim May Constitute Illegal Retaliation under Florida Law" »

Under the Florida False Claims Act, if an employee becomes aware that his or her employer has filed a false claim to a government agency, that employee may file a lawsuit and be awarded as much as 25 to 30 percent of the amount recovered. There is also a federal False Claims Act that covers federal false claims. For example, if an employee is required to submit a false time card or false report (e.g., an insurance report) to a state or federal agency under which the employer has a contract to provide products or services, the employee may sue under the applicable Florida or federal False Claims Act and will be awarded compensation. These laws are meant to assist the government in recovering money that is stolen by government contractors. The lawsuits are called "Qui Tam" lawsuits, which is short for Qui tam pro domino rege quam pro se ipso, a Latin phrase which means "He who sues on behalf of the King, also sues for himself as well."

However, it should be noted that an individual cannot file a claim based on "public information." The individual must be the original source of the information, e.g., he or she must have personal knowledge of and/or seen the false claim or fraud perpetrated. In the employment context, if an employee is required by his employer to submit a false claim or report, that employee has standing to sue under the False Claims Act and may recover as much as 30 percent of the amount recovered by the government. If an employee files a claim under the False Claims Act and gets fired because of it, then the employee can sue the employer for retaliation under the Florida Civil Rights Act or under the applicable federal law.

An example of recent litigation under the False Claims Act is the case of Merck Pharmaceuticals, where they agreed to pay $650,000.00 to settle a False Claims Act lawsuit. That lawsuit was settled in January 2008 and involved accusations of the company taking kickbacks and violating Medicaid best price regulations for the pharmaceuticals that it was marketing. Another example is the recent settlement (September 2009) by Pfizer Pharmaceuticals where they agreed to pay $2.3 billion for allegedly marketing "off label" drugs that were not approved by the Food and Drug Administration. In that case, a Pfizer employee will receive more than $51 million for bringing the matter to the attention of the authorities under the False Claims Act.

Continue reading "Florida False Claims Act may be a Remedy for Employees that are Faced with Doing the Employer's Bad Deeds" »

Basic Energy Services, a Texas-based oil well contractor, has agreed to pay $250,000 to settle a sex discrimination and retaliation suit brought by the U.S. Equal Employment Opportunity Commission ("EEOC"). The lawsuit alleged that the company discriminated against a former field attendant because of her sex and then fired her because she complained about sexual harassment and a promotion denial.

According to the complaint, which was filed in U.S. District Court for the Western District of Louisiana, the plaintiff Tawnya Smith alleged that she was subjected to months of sexual harassment by her immediate supervisor and, when she filed a charge of discrimination with the EEOC, the company discharged her in retaliation. The complaint also alleged that Basic Energy Services denied Smith, who worked for the company as a field disposal attendant, a promotion to field supervisor in 2006 because of her gender.

As part of the settlement, the company agreed to pay Tawnya Smith $250,000 in damages. They also agreed to post and disseminate new anti-discrimination and anti-retaliation policies and have many of its corporate officers and managers undergo annual training on sex discrimination and the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The company also agreed to develop and implement a recruiting and/or job training program designed to increase a pool of female candidates for promotion in all the company's field positions over the next three years.

The EEOC's regional attorney in Houston, Texas stated that "This resolution not only benefits Ms. Smith, but also serves the interests of all working women, particularly in industries and jobs that remain dominated by men. This suit reminds employers yet again that, regardless of the industry or job in question, qualified female workers must be granted the same opportunities as qualified males and be free to work without bias, harassment or fear of retaliation. Employers who refuse to grant female workers equal opportunities in the workplace and retaliate against them for lodging discrimination complaints clearly do so at their peril."

Continue reading "Sexual Harassment Lawsuit Settled by EEOC" »