A PRIMER FOR WORKERS COMPENSATION ATTORNEYS ON COMMON EMPLOYMENT CLAIMS

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1 A PRIMER FOR WORKERS COMPENSATION ATTORNEYS ON COMMON EMPLOYMENT CLAIMS by Cynthia N. Sass, Esquire Hillsborough County Bar Association CLE Luncheon April 23, 2014 Available Courtesy of: 601 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida (813)

2 A PRIMER FOR WORKERS COMPENSATION ATTORNEYS ON COMMON EMPLOYMENT CLAIMS 1 Cynthia N. Sass, Esquire 601 W. Dr. Martin Luther King Jr. Boulevard Tampa, Florida I. AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED BY THE AMERICANS WITH DISABILITIES AMENDMENTS ACT OF 2008 ( ADA ) A. COVERED EMPLOYERS: 1. Applies to federal, state and local governments and to private employers, labor organizations and employment agencies. 2. Employers must be engaged in an industry affecting commerce, and have 15 or more employees for each working day for 20 or more calendar weeks in the current or preceding calendar year. B. PROHIBITS: 1. Discrimination based on an individual s: Actual disability which is defined as a mental or physical impairment that substantially limits one or more major life activities; Record of disability; Perceived disability which is also known as regarded as disabled ; o A person falls under the regarded as prong if the perceived impairment is one that is not transitory and minor (i.e. the duration of which would last less than six months). Associational discrimination for individuals known to be associated with disabled individuals. After the 2008 amendments, disability is defined broadly. 2. Harassment based on any of the above. 1 The materials attached are distributed by the, as a service to clients and other interested individuals. The outlines or information contained herein are provided for informal use only. This material should not be considered legal advice and should not be used as such.

3 3. Retaliation: An employer may not take adverse action against any employee or former employee who has made a complaint of discrimination. The ADA prohibits discrimination against any employee because he has opposed any practice made unlawful by the ADA, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA. NOTE: These protections apply to employees and prospective employees. C. REASONABLE ACCOMMODATION: 1. The ADA requires employers to provide reasonable accommodations to employees with disabilities. 2. An individual with a disability is considered qualified if the individual can perform the essential functions of the position held or desired with or without reasonable accommodation. 3. A covered entity is required, absent undue hardship, to provide reasonable accommodation to an otherwise qualified individual with a substantially limiting impairment of major life activities or a record of such an impairment. Major life activities include but are not limited to sitting, walking, bending, working and care for oneself, as well as major bodily functions (such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions ). 4. However, a covered entity is not required to provide an accommodation to an individual who meets the definition of disability solely under the regarded as prong. 5. If an employer fails to provide an employee with a reasonable accommodation required under the law, the employee may bring a discrimination claim against the employer on this basis as well. 6. An employer has an obligation to enter into an interactive process to determine a reasonable accommodation. 7. Types of Accommodations: Breaks; Flex schedules or working from home; Modified work schedules; Special equipment; Reassignment to different position; and Page 2

4 Leaves of absence (in certain circumstances, where the leave is not indefinite, etcetera). D. MEDICAL EXAMINATIONS: In certain circumstances, employers may also require medical examinations or fitness for duty examinations, which are also governed by the ADA. 1. The United States Equal Employment Opportunity Commission s ( EEOC ) regulations make it clear that an employer can require an employee to submit to a medical examination after the start of employment, if the employer can show the medical examination is job related and consistent with business necessity. 29 C.F.R (c). 2. Examples of when employers have required an employee to submit to a medical examination include: To determine if an employee is a direct threat to the health and safety of themselves or other employees in the workplace. 29 C.F.R (b)(2); To determine if an employee is unable to perform the essential job functions because of a medical condition (this inquiry must be made based on a reasonable belief that the employee cannot perform the essential functions). 29 C.F.R (c); or Where an employee has requested accommodations and the need for the accommodation is not obvious. 3. The employer bears the burden of proving that an examination is lawful by demonstrating: A medical examination is required to determine whether an employee can perform his job duties; The employer has an objectively reasonable, non-discriminatory and nonretaliatory reason to question the employee s ability to perform his job functions; and The examination is a less intrusive means of determining whether the employee can perform his job functions. 4. Genetic Information Non-Discrimination Act Considerations. Medical examinations of employees which request family medical history may violate the Genetic Information Non-Discrimination Act as more fully described in Section IV, below. E. STATUTE OF LIMITATIONS: An employee is required to file a charge of Page 3

5 discrimination before filing a lawsuit in court. In Florida, the statute of limitations for filing a charge with the EEOC is 300 days from the date the employee knew or should have known of the discriminatory action taken against him. F. REMEDIES (as appropriate in each particular case): 1. Injunctive relief; 2. Reinstatement or, in the alternative, front pay; 3. Promotion; 4. Lost wages and benefits; 5. Reasonable attorneys fees and costs; 6. Pre-judgment and post-judgment interest; and 7. Damages: a. Compensatory Damages: Compensate the employee monetarily for emotional distress or any other type of injury that may result from the alleged intentional discriminatory conduct. This issue is decided by a jury and may include: Actual out-of-pocket pecuniary losses; Future pecuniary losses (court-decided); and Emotional pain, suffering, mental anguish, loss of enjoyment of life, loss of reputation, and other non-monetary losses. NOTE: Money damages are not available against a state for violations of the ADA pursuant to the state s sovereign immunity under the Eleventh Amendment. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 365 (2001). b. Punitive Damages: Designed to punish the employer for malicious conduct and deter other employers from engaging in similar conduct in the future. Where available, punitive damages are decided by a jury. NOTE: Punitive damages are NOT available against government employers. c. Damages Caps: The total of compensatory and punitive damages is capped at: Employees = $50, Employees = $100, Employees = $200, Employees = $300,000 Page 4

6 G. STANDARD OF PROOF FOR DISCRIMINATION CLAIMS: An employee must establish that a protected characteristic was a motivating factor in the employer s decision to take an adverse employment action against him. The employee generally has the ultimate burden of persuasion in an ADA action, and the employer generally has to meet only a burden of production as to its legitimate, non-discriminatory and/or nonretaliatory reason for taking the adverse action against the employee. H. STANDARD OF PROOF FOR RETALIATION CLAIMS: An employee must establish that an employer took action because of a protected characteristic. In other words, an employee must show that, but for engaging in protected activity, the employer would not have taken the adverse action against him. The employee generally has the ultimate burden of persuasion in an ADA retaliation action, and the employer generally has to meet only a burden of production as to its legitimate, non-discriminatory and/or nonretaliatory reason for taking the adverse action against the employee. I. STANDARD FOR FAILURE TO ACCOMMODATE CLAIMS: Once an employee establishes a prima facie case of disability discrimination, the employee has the burden of identifying a reasonable accommodation that would have allowed the employee to perform the essential functions of the job. Once this burden is met, the employer must prove that the reasonable accommodation imposed an undue burden. II. FLORIDA CIVIL RIGHTS ACT OF 1992, FLORIDA STATUTE , et seq. ( FCRA ), IS THE STATE EQUIVALENT OF FEDERAL ANTI- DISCRIMINATION, HARASSMENT AND RETALIATION LAWS A. COVERED EMPLOYERS: 1. Applies to federal, state and local governments and to private employers, labor organizations and employment agencies. 2. Employers must be engaged in an industry affecting commerce, and have 15 or more employees for each working day for 20 or more calendar weeks in the current or preceding calendar year. B. PROHIBITS: 1. Discrimination based on: Race; Color; Religion; Sex; National origin; Age; Handicap; Page 5

7 Marital status (the state of being married, single, divorced, widowed or separated, but does not include the specific identity of an individual s spouse); 2 and Pregnancy, childbirth, or related medical conditions. 2. Harassment based on a protected characteristic. 3. Retaliation. C. REASONABLE ACCOMMODATION: The FCRA is construed in accordance with the ADA. See Byrd v. BT Foods, Inc., 948 So.2d 921, 925 (Fla. 4th DCA 2007); Sicilia v. UPS, 279 Fed. Appx. 936 (11th Cir. 2008). D. STATUTE OF LIMITATIONS: An employee is required to file a charge of discrimination with the Florida Commission on Human Relations ( FCHR ) before filing a lawsuit in court. The statute of limitations for filing a charge with the FCHR is 365 days from the date the employee knew or should have known of the discriminatory action taken against him. (See below for more information regarding dual-filing of charges between agencies.) E. REMEDIES (as appropriate in each particular case): 1. Injunctive relief; 2. Reinstatement or, in the alternative, front pay; 3. Promotion; 4. Lost wages and benefits; 5. Reasonable attorneys fees and costs; 6. Pre-judgment and post-judgment interest; 7. Damages: a. Compensatory. No cap on compensatory damages. b. Punitive. Punitive damages capped at $100, Liability of the state or its agencies is limited to $200,000 per person or $300,000 per incident (5) and , Fla. Stat. This amount is inclusive of attorneys fees and costs. 2 Donato v. American Telegraph & Telephone Co., 767 So.2d 1146 (Fla. 2000). Page 6

8 F. STANDARD OF PROOF: An employee must establish that an employer took action because of a protected characteristic and as such was a motivating factor in the employer s decision to take an adverse employment action against him. The employee generally has the ultimate burden of persuasion in an FCRA action, and the employer generally has to meet only a burden of production as to its legitimate, non-discriminatory and/or non-retaliatory reason for taking the adverse action against the employee. G. STANDARD OF PROOF FOR RETALIATION CLAIMS: An employee must establish that an employer took action because of a protected characteristic. In other words, an employee must show that but-for engaging in protected activity, the employer would not have taken the adverse action against him. The employee generally has the ultimate burden of persuasion in an FCRA retaliation action, and the employer generally has to meet only a burden of production as to its legitimate, non-discriminatory and/or nonretaliatory reason for taking the adverse action against the employee. III. HOSTILE WORKING ENVIRONMENT UNDER THE ADA AND/OR FCRA A. HOSTILE WORK ENVIRONMENT: 1. When an individual, based on his or her disability, record of disability and/or perceived disability, is subjected to a hostile, intimidating or offensive work environment which is so severe or pervasive that it alters the conditions of the victim s employment. a. The work environment must be perceived as hostile or abusive ; b. Objectively by a reasonable person; and c. Subjectively by the victim Factors: a. Frequency of the discriminatory conduct; b. Severity of the conduct complained of; c. Physically threatening or humiliating conduct vs. mere offensive utterances ; d. Whether the discriminatory conduct unreasonably interferes with an employee s work performance; and e. Whether the discriminatory conduct is unwelcome. 3 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Page 7

9 3. Employer s Affirmative Defense: 4 a. The employer took reasonable steps to prevent and promptly correct any harassment that occurred; and b. The employee unreasonably failed to take advantage of any preventative or corrective opportunities or to otherwise avoid harm. 4. Employer s Reasonable Steps: a. Policy prohibiting harassment in the employee handbook should: 5 Be separate from general EEO policy; Include grievance and complaint-reporting procedures that provide alternative avenues for employees to complain; Be distributed to all employees; Define harassment (consult EEOC regulations, case law and periodically update with employment counsel); Include specific and clear reporting, complaint and investigation procedures; Clearly articulate that the company PROHIBITS any form of illegal harassment or discrimination; and Notify employees that violation of the policy may result in discipline, up to and including termination. b. The complaint procedure should not require an employee to first complain to the alleged harasser Employee Unreasonably Failed to Take Advantage: An employee unreasonably fails to avoid the actionable harassment where he fails to report the supervisor s behavior to the employer at the time of the incidents. 7 a. If an employee follows the clear and published policy of reporting harassment to the appropriate person, he need not be concerned with whether he pursued the complaint far enough up the company ladder; reporting to an appropriate person is sufficient notice to company. Breda v. Wolf Camera & Video, 222 F.3d 886, 4 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 5 See generally Walton v. Johnson & Johnson Services, 347 F.3d 1272 (11th Cir. 2003). 6 Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir. 1999), cert denied, 121 S. Ct. 303 (2000). 7 Walton, 347 F.3d Page 8

10 890 (11th Cir. 2000). b. Should management fail to take remedial action upon employee s initial complaint, an employee s claim cannot be defeated for his failure to report subsequent conduct. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). B. REMEDIES FOR HARASSMENT: See ADA and/or FCRA sections, above. C. STANDARD OF PROOF: An employee must prove the following: 1. The employee belonged to a protected class; 2. The employee was subjected to unwelcome harassment; 3. The harassment was because of the employee s protected characteristic; 4. The harassment was sufficiently severe or pervasive to alter the employee s terms and conditions of employment and create a discriminatorily abusive working environment; and 5. The employer is liable through either direct or vicarious liability. 8 IV. GENETIC INFORMATION NON-DISCLOSURE ACT OF 2008, 42 U.S.C. 2000ff, et seq. ( GINA ) A. COVERED EMPLOYERS: 1. Applies to federal, state and local governments and to private employers, labor organizations and employment agencies. 2. Employers must be engaged in an industry affecting commerce, and have 15 or more employees for each working day for 20 or more calendar weeks in the current or preceding calendar year. B. PROTECTS: GINA is designed to protect all individuals against discrimination in employment based on their genetic information. C. PROHIBITS: 1. Discrimination based on an individual s genetic information. 2. Acquisition of Genetic Information: It unlawful for and prohibits an employer to request, require or purchase an employee s genetic information, except in limited 8 Miller v. Kenworth of Dothan, 277 F.3d 1269 (11th Cir. 2002). Page 9

11 circumstances. These circumstances include: Compliance with family and medical leave laws; Employer-sponsored wellness programs, but must have written authorization to obtain the genetic information; Where the employer purchases documents that are commercially and publicly available that may contain the employee s family medical history information; Genetic monitoring of the effects of toxic substances in the workplace with proper notice and authorization from employee; DNA analysis for law enforcement purposes; and Where the employer inadvertently requests or requires family medical history. It is considered inadvertent if the request does not explicitly ask an employee to provide genetic information. 29 C.F.R Retaliation: a. An employer may not take adverse action against any employee or former employee who has made a complaint of discrimination. b. GINA prohibits discrimination against any employee because he has opposed any practice made unlawful by GINA, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under GINA. 4. Disclosure of Genetic Information: Genetic information is to be kept confidential and considered as a confidential medical record, except that an employer may disclose genetic information in the following circumstances: a. At the request of the employee; b. To an occupational or other health researcher where the research is conducted in compliance with the United States Department of Health and Human Services Regulations; c. In response to a court order; d. To government officials investigating violations and/or compliance with GINA; e. As necessary in connection with an employee s certification for leave under the Family and Medical Leave Act ( FMLA ); and Page 10

12 f. To a federal, state or local public health agency when it involves or concerns a contagious disease that presents an imminent hazard of death or life-threatening illness. D. STATUTE OF LIMITATIONS: An employee is required to file a charge of discrimination before filing a lawsuit in court. In Florida, the statute of limitations for filing a charge with the EEOC is 300 days from the date the employee knew or should have known of the discriminatory action taken against him. E. REMEDIES (as appropriate in each particular case): 1. Injunctive relief; 2. Reinstatement or, in the alternative, front pay; 3. Promotion; 4. Lost wages and benefits; 5. Reasonable attorneys fees and costs; 6. Pre-judgment and post-judgment interest; and 7. Damages: a. Compensatory Damages: Compensate the employee monetarily for emotional distress or any other type of injury that may result from the alleged intentional discriminatory conduct. This issue is decided by a jury and may include: Actual out-of-pocket pecuniary losses; Future pecuniary losses (court-decided); and Emotional pain, suffering, mental anguish, loss of enjoyment of life, loss of reputation, and other non-monetary losses. b. Punitive Damages: Designed to punish the employer for malicious conduct, and deter other employers from engaging in similar conduct in the future. Where available, punitive damages are decided by a jury. NOTE: Punitive damages are NOT available against government employers. c. Damages Caps: The total of compensatory and punitive damages is capped at: Employees = $50, Employees = $100, Employees = $200, Employees = $300,000 Page 11

13 F. STANDARD OF PROOF: An employee must establish that a protected characteristic was a motivating factor in the employer s decision to take an adverse employment action against him. The employee generally has the ultimate burden of persuasion in a GINA action, and the employer generally has to meet only a burden of production as to its legitimate, non-discriminatory or non-discriminatory and/or retaliatory reason for taking the adverse action against the employee. V. EXHAUSTION OF ADMINISTRATIVE REMEDIES: Under the ADA, GINA and the FCRA, an employee must exhaust his administrative remedies before proceeding to the appropriate federal or state court. Administrative exhaustion involves filing a charge of discrimination or retaliation with the EEOC and/or the FCHR. A. EEOC: 1. Date Calculations: a. The statute of limitations for filing a charge with the EEOC is 300 days 9 from the date the employee knew or should have known of the discriminatory action taken against him. A charge filed with the EEOC is considered dual-filed with the FCHR and vice versa. 10 b. Before proceeding to court, the employee who files with the EEOC must receive a Notice of Right to Sue. There are two ways this notice will be issued: The EEOC (or in some cases the United States Department of Justice ( DOJ ) when dealing with a governmental employer) will issue a Notice of Right to Sue upon the completion of its investigation; or An employee can request that the EEOC cease its investigation and issue a Notice of Right to Sue. However, the employee must not request the notice until 180 days have passed from the date on which the charge was filed. B. FCHR: c. The employee has 90 days from the date he receives a Notice of Right to Sue from the EEOC to file his claims in court. If he misses this deadline, he will be forever barred from pursuing his federal discrimination and/or retaliation claims in court. 1. Date Calculations: 9 Normally 180 days but extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. Florida has the FCRA/FCHR and, therefore, a 300-day time limit to file EEOC charges. 10 Typically, when one agency begins an investigation into the charge, the other will cease its investigation. Page 12

14 a. For the FCHR, the statute of limitations for filing a charge is 365 days from the date the employee knew or should have known of the discriminatory and/or retaliatory event. b. If the FCHR has not issued a determination of either cause or no cause to believe that the employer has engaged in unlawful discrimination or retaliation within 180 days of the employee s filing the charge with the FCHR and/or the EEOC, the employee may proceed with filing a complaint in the appropriate court. c. If the FCHR issues a finding of cause within the 180-day time period, the employee has the option of filing a civil action within one year of the determination or requesting an administrative hearing within 35 days of the determination. d. If the FCHR issues a finding of no cause within the 180-day time period, the employee is prohibited by statute from filing a complaint in court, but may request an administrative hearing challenging the FCHR s no cause finding within 35 days of the determination. e. If the FCHR makes a reasonable cause determination after 180 days but before an individual files suit, the individual still has the benefit of the four-year statute of limitations. Joshua v. City of Gainesville, 768 So.2d 432 (Fla. 2000). The same is true if the FCHR makes a finding of no reasonable cause after expiration of 180 days, but before the individual has filed a civil action. See Woodham v. Blue Cross & Blue Shield, 829 So.2d 891 (Fla. 2002). Unfortunately, the statutes and the case law do not specify from when the four years runs, so be careful if this particular question arises. C. HILLSBOROUGH COUNTY, FLORIDA ORDINANCES CH. 30, 19, et seq. 1. Covered Employers: a. Employer includes any person employing five or more full-time employees working 30 or more hours per week, or who has more than 15 or more employees irrespective of the number of hours worked per week in each of 13 or more calendar weeks in the current or preceding calendar year and any agent of such person. Employer does not include the United States or a corporation wholly owned by the government of the United States; an Indian Tribe; a bona fide private membership club; or the state of Florida. b. Employment Agency is any person, or their agent, regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer. Page 13

15 c. Labor Organization is: Any organization of any kind which exists, in whole or in part, for the purpose of collective bargaining or to deal with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; or Any conference, general committee, joint or system board, or joint council which is subordinate to a national or international labor organization; or Any agent of a labor organization. 2. Prohibits discrimination based on: Race; Color; Religion; National origin; Sex; Age; Marital status; Disability (including the failure to accommodate); Sexual harassment; and Retaliation. 3. Administrative Exhaustion: a. The employee must file a complaint with the County Administrator within 180 days of the alleged discriminatory practice. b. The County Administrator will conduct an investigation, and if he determines that there is no reasonable cause to believe a violation of the ordinance exists, the complaint shall be dismissed. c. If the County Administrator finds that reasonable cause does exist, a hearing will be held in front of the Division of Administrative Hearings ( DOAH ). 4. Remedies: If the DOAH officer finds an employer violated this ordinance, the DOAH officer shall issue an appropriate recommended order prohibiting the practice and providing affirmative relief from the effects of the practice. This includes but is not limited to an employee s recovery of back pay, and may further allow the prevailing party its reasonable attorneys fees. Page 14

16 VI. CITY OF TAMPA HUMAN RIGHTS ORDINANCE, CHAPTER Covered Employers: a. Employer includes any person employing five or more full-time employees working 30 or more hours per week, or who has more than 15 or more employees irrespective of the number of hours worked per week in each of 13 or more calendar weeks in the current or preceding calendar year and any agent of such person. Employer includes the City of Tampa. b. Employment Agency is any person, or their agent, regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer. c. Labor Organization means: Any organization of any kind, any agency, or employee representation committee, group, association or plan, representing employees in dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; or Any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization; or Any agent of a labor organization. 2. Prohibits Discrimination based on: Race; Color; Religion; National origin; Sex; Sexual orientation; Gender identity or expression; Age; Disability; Familial status or marital status; and Retaliation. 3. The ordinance adopts the regulations on the ADA with respect to employment, including but not limited to unlawful practices, the rules on medical examinations and inquiries, etcetera. Page 15

17 4. Administrative Exhaustion: a. The employee must file a complaint with the administrator within 180 days of the alleged discriminatory practice. b. The administrator will conduct an investigation, and if he determines that there is no reasonable cause to believe a violation of the ordinance exists, the complaint shall be dismissed. If the administrator finds reasonable cause and there is no conciliation of the complaint, an aggrieved person may bring a civil action against the employer in any court of competent jurisdiction. The aggrieved person will have 90 days from receipt of the notice of right to sue from the administrator to file a complaint in court. If a court finds that the employer intentionally engaged in discrimination or other unlawful practice, the court may enjoin the employer from further engaging in the unlawful practice and take such other affirmative action as may be appropriate, including but not limited to awarding reasonable attorneys fees and cost. VII. WORKER S COMPENSATION RETALIATION FLORIDA STATUTE A. COVERED ENTITIES: 1. Employer means the state and all political subdivisions thereof, all public and quasi-public corporations, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. Fla. Stat (16)(a). 2. Employee is defined as any person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes but is not limited to, aliens and minors. Fla. Stat (14)(b) and (d). a. Per Fla. Stat (14)(d), employee does not include: An independent contractor; Realtors or real estate sales agents compensated solely by commission; Certain bands, orchestras, and musical and theater performers; Certain owner-operators of motor vehicles; Certain casual workers; Certain volunteers; Certain officers of construction companies; Certain taxicabs, limousine or other passenger for hire operators; and Page 16

18 Certain sports officials. B. PROHIBITS: 1. 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. Fla. Stat Prohibits a retaliatory working environment even where there is no discharge. See Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th DCA 1999). 3. It is also unlawful for an employer to retaliate against an employee because he filed a valid claim against a previous employer. See Bruner v. GC-GW, Inc., 880 So.2d 1244 (Fla. 1st DCA 2004). C. PROTECTED CONDUCT: Prohibits retaliation against an employee for filing a valid claim for benefits against an employer. Valid claims are those that are meritorious even if the employee is denied benefits or if it is not compensable. See Smalbien v. Volusia County School Board, 801 So.2d 169 (Fla. 5th DCA 2001). D. STATUTE OF LIMITATIONS: Four years from when the employee knew or should have known of the retaliatory event. Scott v. Otis Elevator Co., 524 So.2d 642, 643 (Fla. 1988). E. ADMINISTRATIVE EXHAUSTION: 1. None. 2. Employee may file directly in state court. 3. Retaliation claims are typically not removable to federal court. 28 U.S.C. 1445(c); Alansari v. Tropic Star Seafood Inc., 388 Fed. Appx. 902 (11th Cir. Fla. 2010) (unpublished) (workers compensation retaliation claims are not removable to district courts). F. REMEDIES: 1. Back pay. 2. Future lost wages. 3. Emotional distress damages. McIntyre v. Delhaize Am., Inc., 2009 U.S. Dist. LEXIS 6887 (M.D. Fla. Jan. 22, 2009) citing Scott v. Otis Elevator Co., 572 So.2d 902 (Fla. 1990). Page 17

19 4. Punitive damages. See Rease v. Anheuser-Busch, Inc., 644 So.2d 1383 (Fla. 1st DCA 1994). 5. Attorneys fees and costs are likely unavailable. See Faison v. Edwards, 2011 U.S. Dist. LEXIS 1972 (M.D. Fla. Jan. 5, 2011) (not allowing recovery of attorneys fees under Fla. Stat ). 6. Right to jury trial. See Flores v. Roof Tile Admin. Inc., 887 So.2d 360 (Fla. 3d DCA 2004); see also Scott, 572 So.2d 902. VIII. FLORIDA PRIVATE WHISTLEBLOWER S ACT, FLORIDA STATUTE , et seq. A. COVERED PERSONS: 1. Employer means any private individual, firm, partnership, institution, corporation, or association that employs 10 or more persons. 2. Employee means a person who performs services for an employer for wages or other remuneration but does not include an independent contractor. B. PROTECTS: An employee who objected to or refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation. C. STATUTE OF LIMITATIONS: 1. Two years after discovering that the alleged retaliatory personnel action was taken; or 2. Within four years after the personnel action was taken, whichever is earlier. D. ADMINISTRATIVE EXHAUSTION: 1. None. 2. Employee may file a complaint in court. E. REMEDIES: 1. The court MAY order: a. An injunction restraining continued violation of the act. b. Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position. c. Reinstatement of full fringe benefits and seniority rights. Page 18

20 d. Compensation for lost wages, benefits, and other remuneration. e. Any other compensatory damages allowable at law. f. A court may award reasonable attorneys fees, court costs, and expenses to the prevailing party (which means the employee could have to pay the employer s attorneys fees if he does not prevail). IX. FAMILY AND MEDICAL LEAVE ACT of 1993, 29 U.S.C. 2601, et seq. ( FMLA ) A. COVERED PERSONS: 1. Covered Employers: Private sector employer, including successor in interests, engaged in commerce or in any industry or activity affecting commerce, which employs 50 or more employees in 20 or more calendar work weeks in the current or preceding year. Public agency, including but not limited to the federal government, state and local agencies, their political subdivisions and local education agencies. o However, states enjoy sovereign immunity under the Eleventh Amendment for FMLA violations when the FMLA leave is for self-care. 2. Eligible Employees: To be an eligible employee, employees must meet all of the following: The employee worked for a covered employee as outlined above; The employee has worked for the covered employer for more than 12 months (the 12 months of employment do not need to be consecutive if the break in service is no more than seven years or where the break in service is covered by the Uniformed Services Employment and Reemployment Rights Act); The employee worked at least 1,250 hours during the 12 months immediately preceding the leave; and The employee works at a job site where the employer has at least 50 employees within a 75-mile radius. B. LEAVE ENTITLEMENT: 1. Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave in the following circumstances: Page 19

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