Retaliation Claims

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After an employee experiences an on-the-job injury, employers must also address the daunting reality of potentially dealing with an associated retaliation claim.

Workers' Compensation retaliation claims are totally separate from the employee's claim for benefits and protection, and are filed as a civil matter in state court pursuant to section 440.205, Florida Statutes. Consequences of defending these claims in litigation include attorneys' fees and costs, potential exposure for the plaintiff-employee's lost wages, associated pain and suffering damages, and in some cases, punitive damages. In the event the matter does not successfully resolve, the claim will likely be tried in front of a jury.

Subsection 205 states:

No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

See section 440.205, Florida Statutes.

Employers are sometimes blindsided by 205 claims, not realizing that otherwise innocent actions of their agents and employees could be legally perceived as retaliation. The injured employee does not even have to lose any money as a result of a legally enforceable perceived retaliatory act.

If an injured employee has recently returned to work, ensure that any scheduled shifts, light-duty assignments, or position description adjustments do not appear to be a type of punishment. This might occur in situations where co-workers and supervisors doubt the veracity of the employee's initial injury or claim for benefits.

A perceived act of retaliation could also occur when the recently returned employee is now assigned to less prestigious or undesirable tasks, making them appear to be an example to coworkers that bad things happen to employees who become injured on the job and make a claim for benefits (or take steps in furtherance of an attempt to make a claim for benefits) pursuant to Florida's Workers' Compensation Law.

What can employers do to minimize the potential of needing to defend against this type of claim? An employment attorney can assist with developing and then consistently implementing written policies and practices that specify a protocol for assigning tasks and work schedules to recently injured employees.

Employers can also periodically check in with the employee to ensure work restrictions are properly recognized and that requested accommodations are reasonably made. Be sure to be mindful that the employee's injury and consequential adjustments do not impact their ability to qualify for bonuses, promotions, or other benefits of employment regularly offered to similarly situated employees who have not suffered an injury.

Rather than allowing a potential claim to sneak up on you, use your knowledge of section 205 to intentionally and proactively create an example of non-retaliation.

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