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 Pregnancy Discrimination Act of 1978 (PDA) provides that it is illegal for an employer to discriminate against an employee on the basis of pregnancy. Despite the passage of this law more than 30 years ago, pregnancy discrimination is still a very real and common occurrence in the work place. In fact, many employers still think that pregnant women should not be working "for their own protection." Such comments not only show ignorance, but they demonstrate illegal discrimination. For example, just last week, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dreamz ATL, a large nightclub in Atlanta, Georgia, for terminating the employment of a waitress after learning that she was pregnant. The complaint alleges that the manger of the nightclub had taken the waitress off the work schedule when he found out that she was pregnant. When the waitress complained, he wrote her a text message stating "You are prego. You shouldn't be working."

An employer discriminates when it treats an employee or applicant for employment adversely because of pregnancy, childbirth or a medical condition related to pregnancy and childbirth. Under the provisions of the PDA, employers need not give pregnant women preferential treatment, but they must comply with the dictates of the law, which provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." This means that pregnant women must be allowed to continue performing their work and must be treated like any other employee that may be affected by a similar medical condition.

Continue reading "Even Well-Intentioned Comments and Conduct May Constitute Pregnancy Discrimination" »

The Florida Private Sector Whistleblower Act, Fla. Stat. §448.102 et seq. (FWA) provides protection to employees who have complained about an employer's illegal or wrongful conduct. However, it is not sufficient under the FWA for an employee to merely state that the employer is doing something illegal.

There are several strict requirements that employees must prove under the FWA. Specifically, an employee must not only complain about illegal conduct, he or she must also prove the following. First, the employee must prove that he or she disclosed or threatened to disclose to a governmental agency, in writing and under oath, an activity, policy or practice of the employer that was in violation of a law, rule or regulation. This requires the employee to not only make or threaten to make a report in writing and under oath, but also requires the employee to prove that the activity, policy or practice is, in fact, illegal under federal or local law. A mere belief that conduct is illegal is not sufficient. In addition, the disclosure must be to a governmental agency and must be in writing and under oath. Thus, a letter to a state health department may not be sufficient if it is not made under oath.

Second, the employee must provide that the employer retaliated against the employee because of the protected activity, e.g., the disclosure. This means that the employer must have known or been informed of the disclosure. This requirement in itself will mean that only extremely recalcitrant employers will become subject to an FWA claim.

Third, the employee must prove that the employer not only knew of the disclosure, but that the employer was given written notice of the activity, policy or practice that was illegal, thereby giving the employer a reasonable opportunity to correct the activity, policy or practice. Such written notice must be specific and not just simply "rantings" about the circumstances at work. This is to prevent mere employment disputes from reaching the level of an FWA claim.

Therefore, as many have already guessed by reading the foregoing, in real world circumstances, only the very astute private sector employees will be able to prevail under these standards. However, employees and employers alike must be aware of these requirements and should be always vigilant when illegal activity is suspected or when an employee raises the aspect of illegal activity occurring.

Continue reading "Florida's Whistleblower Law Requires Strict Compliance with Requirements" »

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" »