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Published: 2008-03-26

The Outer Limits of Workers' Compensation

Three recent appellate court cases test the reach of workers' compensation trade-off protections for workers and immunity for employers.

Case 1: An Employee Fired for Filing a Comp. Claim Against His Previous Employer Can Sue for Retaliation.

In the Florida case of Bruner v. GCGW, Inc., the worker was fired shortly after being hired, reportedly due to a claim he filed against his previous employer made him a "workers comp risk."

Like many states, Florida's comp law declares "no employer shall discharge any employee by reason of such employee's valid claim for compensation or attempt to claim compensation." The Florida Court of Appeal reasoned that:

"[The employer] would have us construe [this state law] as providing for a civil cause of action only as to an employer against whom a worker's compensation claim is filed. However, to read the statute in such a way, especially given the language, ‘no employer,' would be to add restrictive language to the statute, which is something we are not at liberty to do. …We, therefore, conclude that [the statute], which is clear and unambiguous, provides for a civil cause of action against an employer who discharges an employee for having filed a workers' compensation claim against a previous employer," the court said.

"[W]e find that [the statute] is not only intended to punish employers who discharge an employee for having filed a workers' compensation claim but is also intended to insure that employees do not have to fear reprisal from their employers when they file a workers' compensation claim. …[I]f an injured employee if unable to return to his or her job because of his or her limitations and then is discharged from his or her subsequent job because of having fled or having attempted to file a claim at the previous job, this public policy would be frustrated."

Similar state court decisions have been found in Illinois, Michigan, Oklahoma and Tennessee.

Case 2: An Arizona Worker Who was Intoxicated at the Time He Suffered His Workplace Injuries Can Constitutionally be Denied Workers' Comp Benefits.

The Arizona Court of Appeals ruled that the state legislature could lawfully differentiate between necessary and unnecessary employment risks and declare that unnecessary risks to not need to be compensated.

Case 3: Wisconsin Court of Appeals Extends the Workers' Comp. Immunity Granted Employers Against Civil Suits to Block a Suit by an Employee Who Was Sexually Assaulted by a Co-Worker for Negligent Hiring and Supervision.

The plaintiff worked at a hotel. She was allegedly sexually assaulted by another employee who had a history of criminal behavior. She sued a Wisconsin hotel, claiming that it should have known of her attacker's past crimes and not hired him without warning other employees. The hotel argued that workers' comp was the exclusive remedy for work-related injuries.

Note: that the employer was not sued for sexual harassment or a hostile work environment -- EEO type discrimination theories where separate civil suites are allowed. Thus, the State Court viewed the negligent hiring and negligent supervision theories as part of the statutory tradeoff created by the legislature when it created the employer's immunity for nearly all workplace injuries.

In the Wisconsin Appellate Court's words:

"[T]he balance of policy considerations embodied in the [act] centers on the relinquishment of rights of action in tort. …Indeed, the compromises obtained would not have been possible if employers could still fact tort actions from an injured employee. Were we to adopt a public policy exception for [the plaintiff's] claims against [the hotel], we would potentially upset the deli ate balance of interests the legislature and members of the advisory council have striven to achieve. This we are instructed not to do."

State courts are still enforcing the bold legislative tradeoff upon which workers' comp laws are based.

In the employment discrimination arena, another retaliation jury verdict for the plaintiff. This time it is a $1.57 million dollars award to a 21-year Federal Express ex-employee who alleged he was forced to quit (constructive discharge) when he tried to promote an African American and a Hispanic, also long-term Federal Express employees, to a supervisory position. Instead of accepting his recommendations, a corporate manager promoted a recently hired white female to the supervisory position.

The retaliation claim? Reportedly, the employer gave the recommending employee an ultimatum option of either accepting a demotion of five pay grade levels and report to his subordinate worker, or be issued a strongly worded warning letter and face immediate termination for any subsequent "mistake." When the plaintiff-employee refused both options, Federal Express issued a last chance, threat-of-termination warning letter. Thereafter, the plaintiff quit his job and sued his ex-employer.

Employers everywhere should have anti-retaliation policies and implement them with training. The mountain of retaliation cases continues to grow.