SLF LABOR AND EMPLOYMENT ALERT October 2006

U.S. Department of Labor Announces Establishments
of Self-Directed Career Advancement Accounts

Last week, the U.S. Department of Labor announced the establishment of Career Advancement Accounts. Eight States have volunteered for a test project that would provide $3,000 personal accounts that may be used by employees to obtain needed education and training. The accounts may be used by displaced or current workers to pay for expenses directly related to improving their job skills, such as tuition, books and fees. Three states (Indiana, Pennsylvania and Wyoming) will conduct statewide pilot tests. Another five states (Georgia, Michigan, Minnesota, Missouri and Ohio) will test the accounts to assist employees who have been impacted by layoffs in the automobile industry.

A Primer on Florida’s Worker’s Compensation Retaliation Statute

As most Florida employers are aware, Section 440.205 of the Florida Statutes, contains the anti-retaliation provision of Florida’s Workers’ Compensation Law (“FWCL”). This statutory provision provides that “[n]o 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” and creates a cause of action to individuals who contend that they have been retaliated against for filing for worker’s compensation claim.

While a detailed discussion of this statutory provision is beyond the scope of this publication, following are some basic points of which employers should be aware:

* Section 440.205 was enacted in 1979 and creates a cause of action in tort for retaliatory actions taken against an employee for exercising rights under the FWCL. In 1983, the Florida Supreme Court held that Section 440.205 “creates a statutory cause of action for a wrongful discharge in retaliation for an employee’s pursuit of a workers’ compensation claim . . .”

* Section 440.205 prohibits retaliation “by reason of such employee’s valid claim for compensation . . .” However, the term “valid” does not require that the underlying claim for compensation be meritorious.

* A cause of action under Section 440.205 may not be pursued before a judge of compensation claims, but rather must be filed in a court of competent jurisdiction.

* Recently, at least one Florida appellate court found that Section 440.205 prohibits retaliation against an employee who filed a valid claim for workers’ compensation benefits with a prior employer.

* Section 440.205 prohibits discharging and threatening to discharge an employee for filing a worker’s compensation claim

* In one case, an employer who suspended an employee without eliminating the functions of the employee’s position, and forced the employee under threat of discharge to perform job assignments beyond the employee’s physical restrictions, was found unlawful.

* Section 440.205 also prohibits intimidation or coercion by an employer.

Employers must be mindful of the provisions of Section 440.205. The statute provides a broad range of remedies for prevailing plaintiffs and litigation under this statute is often costly and disruptive.

Labor Relations and
Employment Law
Robert J. Sniffen
rsniffen@sniffenlaw.com
211 East Call Street
Tallahassee, FL 32301
850.205.1996
850.205.3004 FAX