Worker’s Comp Retaliation in Florida
Employers Must Have a Policy & Guidelines for Dealing with Injured Workers
As the Third District Court of Appeals in Florida (which includes Miami, FL) ruled, in order to prevail on a retaliatory discharge claim under section 440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove:
(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.
In this case the Court concluded that “While Ortega may not have been fired “en haec verba,” there was sufficient evidence of retaliation sufficient to overcome a summary judgment where there were contradictory statements as to why the plaintiff was discharged particularly where the discharge ocurred close to the time of the injury.
One possible answer to this problem is for the employer to adopt a clear policy authorizing the termination of employees who are unable to work for a period of time and apply the policy consistently without the mixed messages that occurred in this case.