EMPLOYED FOR LIFE?
Workers’ Compensation Retaliation Claims
In 1980, over a three-week span of time, William F. Scott hurt his leg at work, was
arrested for assaulting another worker with a gun, and lost his job because of the
assault, customer complaints, absenteeism, and tardiness.
Ten years later, David F. Kimbrough, a store manager for Sears, was held hostage during
an armed robbery. The police shot and killed the robber as he held a gun to
Kimbrough’s head. A year later, Kimbrough filed a workers’ compensation claim
for psychological problems arising from the incident. One year after that he was
terminated for poor job performance.
These two cases have more in common than violence in the workplace. Both gave rise to
civil lawsuits filed under Florida’s workers’ compensation law. With so much
attention focused on recent changes in federal laws governing employer liability for
employee harassment or discrimination, one might easily overlook the threat of lawsuits
based on state law.
William Scott and David Kimbrough based their claims for damages on the prohibition in
state law against discharging an employee for filing a claim for workers’
compensation benefits. Although most workers’ compensation disputes are settled by
judges of compensation claims through the system’s administrative courts, retaliation
claims are decided in the state’s civil justice system.
Wrongful discharge actions, such as retaliation claims, that are filed in state courts
pose a special danger for employers. Unlike a federal discrimination case or a typical
workers’ compensation claim, a retaliation suit is more likely to be heard by a jury.
An employer is often at a disadvantage in front of a jury because jurors tend to
sympathize with employees, even when the employer has what appears to be a strong legal
defense. Jurors are simply more likely to give the employee the benefit of the doubt if he
claims to have been unfairly treated by his employer.
The Burden is Easy
Workers’ compensation retaliatory discharge claims are generally brought pursuant
to section 440.205 of the Florida Statutes. This provision makes it unlawful for an
employer to "discharge, threaten to discharge, intimidate, or coerce" any
employee as a result of the employee’s "valid claim for compensation or attempt
to claim compensation" under the workers’ compensation law. The Legislature,
however, did not specifically grant to employees the ability to file a lawsuit outside of
the workers’ compensation administrative process; rather, the civil cause of action
for retaliatory discharge was created by the Florida Supreme Court.
The standard of proof an employee must meet to prevail on a workers’ compensation
retaliation claim is not high. The employee must simply draw a link between the action
taken against him and his pursuit of workers’ compensation benefits. An employee does
not have to show that the pursuit of benefits was the singular reason for the discharge,
only that it was a reason. Thus even if the employer had other reasonable grounds for the
discharge, it could be ordered to pay damages to the employee.
Furthermore, even though courts have characterized these as retaliatory discharge
claims, the employee is not required to prove that the employer specifically intended to
retaliate against him for pursuing workers’ compensation benefits.
Losing one of these lawsuits can be extremely costly, with possible awards of economic
damages such as back pay, and compensatory damages such as pain and suffering. In the
cases of William Scott and David Kimbrough, set forth at the beginning of this article,
juries awarded the employees damages of $300,000 and $850,000 respectively.
David Kimbrough’s award included $350,000 for pain and suffering. Kimbrough was a
sympathetic plaintiff. His workers’ compensation claim arose from the trauma of being
held at gunpoint during an armed robbery.
Two months after filing his claim for benefits, he received his first poor job evaluation
in more than 20 years of employment with the company. He claimed that he was fired after a
year of criticism and harassment by company officials.
Although one can easily understand how a jury could side with Kimbrough, an award of
damages to William Scott is harder to imagine. His assault on another worker would strike
most people as a nondiscriminatory reason for the termination, but obviously the jury felt
otherwise. There is no record of why the jury made the decision it did, but the most
likely factor was the employer’s failure to report Scott’s leg injury properly.
According to his own testimony, Scott’s supervisor knew that he was required to
report the injury when Scott told him about it, but he took no action because Scott said
it was an aggravation of an old injury that was not work related.
This simple breakdown in procedure could have been all that was necessary to create
suspicion of the employer’s motives among the jurors. And that was all it took to
override the employer’s legitimate reasons for terminating William Scott.
So does this mean that every problem employee who files a workers’ compensation
claim is automatically employed for life? Not if the employer is careful.
Florida judges infrequently issue written orders, so there are only a few recorded
cases of workers’ compensation retaliation claims here. Thus little case law exists
to help an employer determine what it can do to protect itself against such a claim. A
review of retaliation cases in other states, however, reveals that courts generally look
at several factors to determine whether the termination of the employee had a causal
relationship to the workers’ compensation claim. These factors include the following:
- length of time between the pursuit of workers’ compensation benefits and the
adverse action
- negative comments made by decision-makers regarding the filing of a workers’
compensation claim
- lower ratings in performance evaluations after the workers’ compensation claim was
filed
The anti-retaliation provision of the workers’ compensation statute only prohibits
termination of an employee because he filed or attempted to file a valid workers’
compensation claim. It does not guarantee employment to anyone who otherwise would be
discharged because of poor performance or for any other legitimate nondiscriminatory
reason.
The employer will need to exercise care in discharging an employee who has filed or
tried to file a workers’ compensation claim. Remember: Any time such an employee is
discharged, the employer’s actions in discharging him may be scrutinized by a jury.
There are steps employers can take and processes they can implement to help prevent
such lawsuits, or help ensure a strong defense should a suit be filed. Treating the
employee fairly is not enough, however. The employer must also be able to convince the
members of a jury that the employee was treated fairly.
Thus extra caution should be exercised to ensure that these actions both are fair and
appear fair.
Appearances That Don’t Deceive
To help ensure that action taken against an employee who has filed a workers’
compensation claim can be regarded as fair, employers may consider implementing a program
of progressive discipline. Such a program may enable employers to neutralize one common
and powerful basis for juror sympathy: an employee who was discharged without warning.
An employer can provide the employee with a succession of oral and written warnings.
Doing so will make a jury less likely to sympathize with the employee and maybe more
likely to regard the employer’s termination decision as fair.
Prior to discharging an employee who has filed a workers’ compensation claim,
consider suspending the employee while conducting an investigation and deciding whether to
discharge the employee. Suspension allows the employer to avoid mistakes and irrational
decisions while providing time to gather corroborative evidence to support the impending
termination. It also gives the employer an opportunity to evaluate whether the severity of
the discipline proposed is reasonably related to the seriousness of the misconduct. The
time can be spent considering any other relevant or mitigating factors, such as the
employee’s service record. It can also give supervisors an opportunity to obtain
input from uper-level management and legal counsel prior to discharging an employee, and
to review company policies to ensure they support the termination ecision.
All counseling of the employee, whether oral or written, should be witnessed and
documented. If a particular course of conduct consistently leads to disciplinary
counseling, all employees who engage in such conduct should receive similar treatment. his
includes both those employees who have filed workers’ compensation claims and those
who have not. Otherwise it may appear to a jury that an employer is building a case
against a particular employee or against only those employees who have filed workers’
compensation claims.
Employers should also document all steps taken to investigate the employee’s
situation prior to discharge. Employers should interview everyone who possesses
information relevant to the investigation and should obtain signed statements from those
interviewed. Additionally, consider having the key decision-makers prepare affidavits or
written statements that set forth their recommendations and the reasons for those
recommendations.
Finally, it is also important to give the employee who is being discharged an
opportunity to respond, preferably in writing, to the reasons for the discharge. This
allows the employee to relate his side of the story (possibly disclosing pertinent facts),
and will help demonstrate to a jury that the employee was treated fairly and that the
employer considered both sides of the story. Taking steps to ensure that the reasons for
the employment decision and the steps taken to arrive at this decision are well documented
is essential, since this documentation could be key evidence should the dis-charge of the
employee result in any type of litigation.
Fair Appraisals
While investigation and documentation are mportant factors in helping to prevent or to
defend against workers’ compensation retaliation lawsuits, performance appraisals can
help support an employer’s decision. Unfortunately, performance appraisals can also
be "smoking gun" evidence supporting the employee’s case.
The employer should ensure that these documents provide key evidence that benefits
itself, not the employee who filed suit. All performance appraisals should be honest,
including notation of both the employee’s weak and strong points, citing specific
examples. Overcoming the prejudicial effect of glowing (or even merely good) performance
appraisals prior to an injury can be difficult if they are followed by a poor performance
appraisal after the injury. Thus it is essential that all problems with employees be
documented as soon as those problems become apparent. Never wait until an employee has
filed a claim for workers’ compensation benefits to document such problems.
Consistent treatment of employees is another one of the important factors in defending
a claim of retaliatory discharge. The employer strengthens its case if it can demonstrate
that its disciplinary actions were consistent with those directed toward other employees
who engaged in similar misconduct but who did not file claims for workers’
compensation benefits.
To help ensure consistency, an employer should not simply accept a supervisor’s
recommendation on the premise that the supervisor is the person most familiar with the
employee’s work record or habits. Instead, the employer should question the person
recommending discharge about the reasons for the recommendation nd request specific
examples of misconduct to support the decision. Consistency in both supervision and
discipline decreases the likelihood that an employee
will file a retaliation complaint, supports an employer’s defense against future
complaints, and helps ensure that ury will find that the employer treated the employee
fairly.
Finally, employers should be aware of employment actions directed toward other
employees who have filed workers’ compensation claims. If a retaliation complaint is
filed, evidence that other employees have filed workers’ compensation claims and have
not been sub-jected to adverse action can help establish the employer’s good faith in
discharging this employee. Conversely, evidence that numerous other employees who have
filed workers’ compensation claims have also been discharged may be viewed as
circumstantial evidence that the employer did in fact discharge this employee because he
filed a workers’ compensation claim.
While there is no guarantee that following the suggestions in this article would have
stopped William Scott or David Kimbrough from suing their employers, their employers might
have been able to avoid adverse jury verdicts had they paid more attention to the process
surrounding the terminations.
There is no way this article can address all the issues that may arise in something as
complex as discharging an employee who has recently filed a workers’ compensation
claim. Thus, any time an employer has questions or concerns about discharging such an
employee, it should contact experienced labor-and-employment-law counsel for advice.
John-Edward Alley, Amy W. Littrell, and Tammie Rattray are with the law firm of
Ford & Harrison, LLP, where Alley is a partner.
An Anti-Litigation Strategy
*Progressive discipline--evidence of fair treatment
*Documentation--create a paper trail
*Consistency--the key to defending against a retaliation complaint
*Compare the workforce--treatment of other workers’ compensation claimants
*Performance appraisals--the smoking gun?
Jan/Feb 1998 -- Florida Business Insight, PO Box 784, Tallahassee, Fla. 32302
(850)224-7173, insight@aif.com
