Employment discrimination cases are primarily grounded in Title VII of the Civil Rights Act of 1964. Like all statutory law, Title VII has been shaped and refined through judicial interpretation, with courts across the country—including the United States Supreme Court—defining its scope and application.

For more than fifty years, one of the most influential cases in employment discrimination law has been McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), decided by the United States Supreme Court. The decision established a framework for plaintiffs to prove discrimination in cases where direct evidence of discriminatory intent is absent.

Unfortunately, although once regarded as a lifeline for plaintiffs, the case has gradually evolved into more of an obstacle to proving even meritorious claims, ossifying into a rigid procedural doctrine. This shift stems from a misunderstanding of the framework’s purpose. Rather than treating it as one of several possible methods of proof, many courts and practitioners have mistakenly applied it as the exclusive route. Encouragingly, recent decisions have begun to clarify that the McDonnell Douglas framework is not the only path available.

These decisions reaffirm that the ultimate issue is ‘whether the defendant intentionally discriminated against the plaintiff,’ United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983), rather than whether the three-part framework of McDonnell Douglas has been mechanically satisfied. In effect, courts have recognized that, for some, the McDonnell Douglas test has come to overshadow—and at times supplant—the Civil Rights Act itself as the governing law.

A significant shift in how courts should view the McDonnell Douglas framework came in Tynes v. Florida Department of Juvenile Justice, 88 F.4th 939 (11th Cir. 2023). In Tynes, the jury returned a verdict for the plaintiff, but the employer sought to overturn it by arguing that the plaintiff had failed to establish a prima facie case of discrimination under McDonnell Douglas.

The Tynes court clarified that while McDonnell Douglas remains a valid method of proving discrimination, it is not the exclusive one. Most importantly, the court emphasized that the central question is whether unlawful discrimination occurred—not whether the plaintiff successfully cleared the procedural hurdles outlined in McDonnell Douglas.

Tynes’ message is that courts should analyze the evidence as a mosaic, considering all the pieces together to determine if a jury could reasonably conclude that unlawful discrimination occurred. This holistic approach aligns with the text of Title VII of the Civil Rights Act.

Getting the Supreme Court to adopt the “mosaic” approach may be challenging. In Hittle v. City of Stockton, California, 145 S. Ct. 759 (2025), the Court denied a petition for certiorari, thereby declining to review a Ninth Circuit opinion that required the plaintiff to satisfy the traditional McDonnell Douglas burden-shifting framework. Justice Thomas, joined by Justice Gorsuch, dissented from the denial, arguing that the Court should have used the case to reconsider the McDonnell Douglas framework.

Employment discrimination cases can be exceedingly difficult for plaintiffs, as federal courts are often inclined to grant summary judgment motions, dismissing the claims before they can be heard by a jury. However, the Tynes decision may signal a softening of this approach. By emphasizing the “mosaic” of evidence, the court encourages judges to look beyond the rigid, step-by-step framework of McDonnell Douglas and instead consider the totality of the circumstances, which may make it more difficult for defendants to obtain summary judgment.

*********************************************************

Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

In previous blogs, we addressed the first and second elements of a Section 440.205 Florida Statutes wrongful retaliation/termination cause of action. This blog will address prong the third element.

§440.205 reads as follows:

Coercion of employees.—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.

Case law has broken this cause of action down into the following elements:

1. The employee engaged in a statutorily protected activity;
2. An adverse employment action occurred; and
3. The adverse action was causally related to the employee’s protected activity.

Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

In order to satisfy the “causal connection” prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. See Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir.1997) (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). Moreover, while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities. See id. at 1197.

Once a plaintiff establishes a prima facie case by proving only that the protected activity and the negative employment action are not completely unrelated, see Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004), the burden then shifts to the defendant to proffer a legitimate reason for the adverse employment action. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3rd DCA 2004). If the defendant proffers evidence of a legitimate reason for the adverse action, a plaintiff withstands summary adjudication either by producing sufficient evidence to permit a reasonable finder of fact to conclude the employer’s proffered reasons were not what actually motivated its conduct, or that the proffered reasons are not worthy of belief. Corbitt v. Home Depot U.S.A., No. 08-12199, 2009 WL 4432654, at * 20 (11th Cir. Dec. 4, 2009). A trial court should “evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Id. (internal citations omitted).

While temporal proximity between the protected activity and an adverse action may be sufficient circumstantial evidence of a causal connection for purposes of a prima facie case, see Ortega v. Engineering Systems Technology, Inc., 30 So.3d 525 (Fla. 3rd DCA 2010), the real battle will be fought over the legitimacy of the employer’s adverse action. While there are a countless number of factors to consider in determining the real basis for a termination, it is always important to analyze the employee’s personnel file and the employer’s policies and procedures should be considered closely. Interestingly, a wrongful termination cannot be undone by demonstrating that the employee could have been, but wasn’t, terminated for violating a particular procedure. Hodges v. Citrus World, Inc., 850 So.2d 648 (Fla. 2nd DCA 2003).

Employees often have a good sense of why they were terminated. However, they must be careful to guard against allowing anger and disappointment to lead them into a false belief. Since our law firm also handles workers’ compensation cases, we find it helpful to conduct discovery in the workers’ compensation case with regard to issues related to a potential 440.205 claim before bringing suit.

**********************

Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Our previous blog addressed the first prong of a Florida Statute §440.205 workers’ compensation retaliation/wrongful termination cause of action (COA). §440.205 provides:

Coercion of employees.—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.

Case law has established the elements of a §440.205 COA as follows: the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

This blog will address prong (2).

The statute does not require an outright termination for an employer’s conduct to be actionable. Section 440.205 creates a cause of action for intimidation or coercion even in the absence of a discharge. Chase v. Walgreen Co., 750 So. 2d 93 (Fla. 5th DCA 1999). In Chase, an employee, who remained employed by the Defendant when the lawsuit was instituted, was allowed to proceed with her action [against the employer] on the following allegations of wrongdoing: (1) failing to comply with physician ordered work restrictions; (2) reducing scheduled work hours resulting in decreased income and loss of eligibility for employee insurance and other benefits; (3) refusing Chase’s request for transfer to another store located closer to her residence despite the open positions at that store; (4) making changes to Chase’s work schedule without prior notice “in an effort to depict Chase as an absentee”; and (5) berating Chase in a “humiliating manner for pretextual violations of company policy or practice.” (Chase sought economic damages, including back pay and the value of any lost benefits with interest, and noneconomic damages, including “damages for mental anguish, humiliation, and embarrassment.”)

Similarly, in Stallworth v. Okaloosa County School District, United States District Court, N.D. Florida, Pensacola Division 2011, the employee, a classroom assistant, was allowed to proceed under these allegations: the school district eliminated her position, harassed her, intimidated her, and transferred her to positions beyond her physical abilities in retaliation for her filing a workers’ compensation claim under state law. Because there was no dispute that Stallworth filed a workers’ compensation claim, that her position was eliminated, and that administrators knew of her injury and complaints, the court decided that she set forth a prima facie case.

Once a plaintiff establishes a prima facie case by proving the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the employer to proffer a legitimate reason for the adverse employment action. See Russell [v. KSL Hotel Corp., 887 So.2d 372, 379-80 (Fla. 3d DCA 2004).

Section 440.205 cases are extremely fact intensive. Disgruntled employers can be clever at devising legitimate reasons for its actions other than retaliation. Also coming into play is Florida’s status as an at-will employment state and the Florida Legislature’s repeal, in 2003, of Chapter 440’s “obligation to rehire” mandate.

*********************

Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

end employment relationships without suffering any negative consequences besides paying unemployment compensation benefits.

While the doctrine creates a climate of vulnerability, Florida employers do not have absolute immunity for every termination decision. They can find themselves in hot water for

• harassing or terminating an employee because of his or her protected member status (e.g., race, color, religion, national origin, age, sex);
• retaliating against an employee for engaging in whistleblowing activities (also, US Dept. of Labor);
• retaliating against an employee for seeking benefits under the FLSA; or
• retaliating against an employee for making a valid claim for compensation or attempting to claim compensation under §440.205 Florida Statutes of Florida Workers’ Compensation Act.

This blog will address the first element of a §440.205 retaliatory discharge claim.

Florida does not recognize a common law tort for retaliatory discharge. Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla. 1990). Hence, the statute is the only remedy available to address an employer’s challenged conduct, and since it is in derogation of common law, it must be construed strictly. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla. 1977); Jenks v. State, 582 So.2d 676 (Fla. 1st DCA), review denied, 589 So.2d 292 (Fla. 1991).

§440.205 reads as follows:

Coercion of employees.—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.

In order to prevail on a retaliatory discharge claim under §440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

In Naboa v. The Sygma Network, Inc., United States District Court, M.D. Florida, Orlando Division 2012), the court rejected the Defendant Employer’s argument that the statute or case law compel an employee to file an official workers’ compensation Petition for Benefits to be protected by the retaliation statute. Instead, it found that Plaintiff engaged in protected activity when he reported his work related injury, filled out the Defendant’s corresponding paperwork, and was taken to a clinic by supervisors pursuant to Defendant’s established procedure for workers’ compensation injuries.

This standard is important because Petitions are not always filed in workers’ compensation cases, including those involving significant injuries. When employers and their workers’ compensation insurance companies furnish benefits in accordance with the law, there is no need to file a Petition. Hence, to require a Petition to invoke the protections of §440.205 would cause unnecessary litigation and hardship.

Another issue involves the meaning of the statutory term “valid claim.”

It is not uncommon for employers to challenge the compensability of accidents. In Smalbein v. Volusia County School Board, 801 So.2d 169 (Fla. 5th DCA 2001), the employee involved in a car crash claimed workers’ compensation benefits. The employer denied responsibility under the “going or coming” rule and prevailed on this defense in the workers’ compensation forum. Thereafter, the employee filed a §440.205 civil action against the employer, asserting retaliation for removing his name from the substitute teacher list. The trial court granted the Employer Defendant’s motion for summary judgment, concluding that, by losing the underlying workers’ compensation case, the Plaintiff was not engaged in a statutorily protected activity.

On appeal, Florida’s Fifth District Court of Appeal vacated the summary judgment, agreeing with Smallbein’s argument that the term “valid claim” under section 440.205 should not be construed as a requirement that the workers’ compensation claim be compensable. In the court’s view

interpreting “valid” as “compensable” thwarts the purpose and intent of the Legislature to prohibit retaliation whereas construing a valid claim as a meritorious one provides the proper protection to injured employees seeking benefits without over-extending the protection to employees who file frivolous claims. 801 So.2d @ 170.

These cases demonstrate a reasonable reluctance against chilling an employee’s right to seek workers’ compensation benefits in meritorious cases.

Stay tuned for additional blogs on the subject of §440.205 retaliation claims.

*********************

Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Florida Statute 440.205 creates a civil remedy for various types of retaliatory misconduct by employers against employees for claiming or attempting to claim workers’ compensation. (Florida’s workers’ compensation statutes are contained in Chapter 440.) 440.205 reads as follows:

Coercion of employees.–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.

Traditionally, civil disputes have been handled by trial courts with judges and juries. (Florida’s civil trial court system consists of county and circuit courts.) Trial courts were imagined by America’s Founding Fathers as the most effective way of leveling the playing field in disputes between the small and powerless and the rich and powerful. Juries, composed of citizens from all walks of life, were seen as being in the best position to render fair and impartial verdicts after thoughtfully considering the evidence. Sadly, the recent trend in Florida and nationwide is away from this form of dispute resolution, towards a process known as arbitration:

“Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.” From Wikipedia

This movement has been fueled by Big Business to make it more difficult for individuals to pursue civil remedies against them. Public Citizen, a public interest non-profit organization, concluded that arbitration may be just as expensive and time-consuming as litigation. In their report, “The Costs of Arbitration,” the writers found that:

• The cost to a plaintiff of initiating an arbitration is almost always higher than the cost of instituting a lawsuit.
• Arbitration costs are high under a pre-dispute arbitration clause because there is no price competition among providers.
• Arbitration costs will probably always be higher than court costs in any event, because the expenses of a private legal system are so substantial.
• Arbitration saddles claimants with extra fees they would not be charged if they went to court.
• Arbitrators tend to favor repeat customers. Naturally, large companies with frequent litigation select the arbitrators who rule in their favor.
• Taking a case to arbitration does not guarantee that a consumer or employee will stay out of court, making arbitration still more costly. If crucial documents or testimony must come from a third party, court litigation is necessary to enforce subpoenas.
• The inability to exclude irrelevant evidence since the “Rules of Evidence” are discretionary with the arbitrator
• The loss of the right to appeal erroneous decisions.

The bottom line is that arbitration is often bad for the little guy. Plaintiffs’ lawyers prefer having matters resolved in trial courts. They don’t always have the choice.The subject of how arbitration becomes mandatory is beyond the scope of this blog. In most instances, it boils down to contract law. However, it is prohibited in some types of cases, such as workers’ compensation.

In Audio Visual Innovations, Inv. v. Spiessbach, So.3d , 38 FLW D1753 (Fla. 2nd DCA 8-16-2013), the question arose as to whether arbitration could be compelled in a 440.205 workers’ compensation retaliatory discharge case. The employer sought to compel arbitration pursuant to a dispute resolution agreement that Spiessbach had signed when he was hired. The Second DCA agreed with the employer, finding that a Section 440.205 claim, which is pursued in circuit court, is a completely separate cause of action that is outside the Ch. 440 mechanism for providing workers’ compensation benefits.

************************************************

Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. See Section 207 of the Act.

To calculate the amount of compensation an employee is owed under the FLSA, the overtime rate (OT rate) must be determined.

The first step in this equation is establishing the “regular rate of pay,” the hourly rate. If the employee has not received employer-furnished fringe benefits, such as health insurance and housing, the “regular rate of pay” is the hourly rate, and the OT rate is 1/2 of the hourly rate. For example, if the “regular rate of pay” is $10.00/hour, the overtime rate is $5.00.

Where fringe benefits have been provided, their value must be included in the calculation. In the case of health insurance, the fringe benefit value determination is relatively simple to make, with the employer’s share of the premium payment being the actual “value” of the fringe benefit. Where the employer is not making an easily identifiable payment, such as in the case of self-administered medical programs provided by some big emloyers, or where housing is provided by the employer, determining the value of the benefit is not as simple. Not infrequently, the parties will fight over the value of fringe benefits. (Caveat: the employer may try to argue that the fringe-benefit is a form of payment for overtime wages, rather than a benefit which increases the “regular rate of pay.” Paycheck stubs and tax records, among other evidence, must be considered to resolve this dispute.)

Where fringe benefits are part of the calculation, determining the OT Rate is a 3-step process:

Step 1 – Regular Weekly Pay: Hourly rate of pay times (x) hours worked per week plus (+) value of fringe benefit(s). (Example: $10/hr x 62 hours + $50 (weekly insurance premium.))

Step 2 – Regular Rate of Pay: Regular Pay divided (/) by hours per week.

Step 3 – OT Rate: Equals 1/2 of Regular Rate of Pay.

Compensation due under the FLSA is determined by multiplying the OT Rate by the employee’s number of accrued overtime hours. The FLSA statute of limitation is 2 or 3 years depending on whether the employer’s failure to pay overtime wages was by purposeful design or through simple oversight or ignorance.

The FLSA also contains a liquidated damages provision for double damages.

Hypothetical Case: Employee worked an average of 62 hours a week during the 3-year period immediately preceding his case being filed in court, with an hourly rate of pay of $10.00. The employer also paid the equivalent of $50 per week for health insurance.

• OT Hours: 3432 (156 weeks (3 years) x 22 (OT hours/wk))
• Regular Weekly Pay: $670 (Hourly pay x total hours + fringe benefit)
• Regular Rate of Pay: $10.80 (Regular Weekly Pay divided by hours per week)
• OT Rate: $5.40 (1/2 of Regular Rate of Pay)
• OT Owed: $18,532.80 (OT Rate x OT Hours)
• Liquidated Damages: $18,532.80
• Total Owed: $37,065.60

**********************************************************

Contact us toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Members of our firm speak English, Spanish, and Creole.

The PTD standard has changed numerous times over the years. Until 1996, the standard was to meet a scheduled catastrophic injury, like total blindness or loss of limbs, or prove the inability to perform at least light duty work uninterruptedly on a full-time basis. In 1996, the light duty standard was replaced by the standard required to qualify for Social Security Disability (SSD) benefits, which the Florida Legislature believed was more demanding. In 2002, thanks to Governor Jeb Bush, the SSD standard was replaced by an even more stringent standard. Injured workers would be required to prove that they could not perform at least sedentary duty work on a part-time basis within a 50 mile radius of their homes. This standard prevented all but the most catastrophically injured workers from qualifying for PTD.

Because this standard proved so onerous… and unfair, the Florida Legislature was persuaded to eliminate the part-time element from the PTD requirement in its 2006 version of 440.15.

Pre-1996, one of the ways claimants proved entitlement to PTD benefits was by performing an exhaustive but unsuccessful job search. Because of the many variations in the standard since then, many workers’ compensation practitioners believed that this method no longer applied and abandoned it as a way of proving entitlement to PTD.

Thankfully, in Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) the assumption was proven wrong. The Blake court set forth three alternative methods by which a claimant may prove entitlement to PTD benefits: by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.Confirmation of this method as a way of proving PTD is important to injured workers. In many PTD cases, especially those where the claimant’s injuries are less than catastrophic, this method is the most effective way of proving PTD.

Other considerations:

• The claimant is not required to present direct proof of a causal connection between his physical limitations and his unsuccessful job search. Fla. Mining and Minerals v. Brantley, 418 So. 2d 352 (Fla. 1st DCA 1997).
• The job search must be conducted in good faith and it is within the JCC’s discretion to find a job search inadequate. Factors such as physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence will be considered. Publix Supermarkets, Inc. v. Redding, 689 So. 2d 1253 (Fla. 1st DCA 1982); Borges v. Osceola Farms Co., 651 So. 2d 173 (Fla. 1st DCA 1995).
• There is no absolute number of minimum or average monthly contacts as a threshold requirement for an adequate work search. GCC Beverages v. Simmons, 571 So. 3d 59 (Fla. 1st DCA 1990).

***********************************************

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us at 866-785-GALE or by email to learn your legal rights.

One of the more onerous examples of rights-limiting workers’ compensation imposed in Florida is set forth at Section 440.09(1)(b) of the Florida Statutes. This section, known as the Major Contributing Cause (MCC) Doctrine, places the burden on injured workers to prove that the industrial accident is more than 50% responsible for causing the injury. An injured worker who fails to meet this burden will be denied ALL medical care and lost wage benefits from the employer. (In contrast, the personal injury system does not summarily deny compensation to persons with pre-existing conditions whose injuries were activated, i.e., made to become symptomatic, or aggravated (permanently worsened) by an accident. Instead, the finder of fact carves out the pre-existing element from the recovery and awards the difference. Not so under Bush’s MCC system.)

The MCC is used as a defense in many cases. The E/C try to blame 50% or more of a claimant’s injury on a pre-existing condition. For older workers and those with similar prior complaints, the defense can be difficult to overcome. Sadly, many an injured worker has been denied workers’ compensation benefits because of the MCC.

Fortunately, the First District Court of Appeal has carved out an important exception to the MCC doctrine. In Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the court held that an employee need not meet the rigorous MCC requirements when her or his pre-existing condition is occupationally related.In other words, pre-existing conditions resulting from compensable work-related accidents will NOT be a factor in the denial of workers’ compensation benefits under the MCC doctrine.

This example illustrates the complexity of Florida’s workers’ compensation system, and demonstrates the importance of consulting with a workers’ compensation specialist following an industrial accident.

Our law firm has been handling workers’ compensation for nearly 25 years. Please contact us today to arrange a free, confidential consultation to discuss your case.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Five years after the bill’s effective date, the Florida Supreme Court, in Murray v. Mariner Health and Ace USA, 994 So.2d 1051 (Fla.2008), held that the statute provided for reasonable attorney’s fees. The court did not rule on the constitutional issues.

In a clear rebuke to the Florida Supreme Court, in it’s next legislative session, which began on March 1, 2009, less than seven months after the Murray decision, the still-again Republican-controlled legislature took another shot at limiting fees. What it did was remove the word “reasonable” from Florida Statute 440.34. The Legislature’s goal was to make it difficult for injured workers to obtain adequate legal representation by denying their attorneys reasonable attorney’s fees.

In the Murray case, Ms. Murray was successful at the trial level in convincing a judge of workers’ compensation claims (JCC) that her injuries were sustained in a work-related accident. (The employer/carrier (e/c) had denied her injuries.) In a subsequent attorney’s fee hearing, the JCC found that claimant’s counsel expended eighty hours of reasonable and necessary time on the case. However, the JCC, although concluding in his written order that $16,000 was a reasonable fee, felt constrained by the statute and awarded only $684.84, or an hourly rate of $8.11. According to the JCC, this amount was “manifestly unfair.” (Note: the e/c in this case paid their attorney $16,050 (135 hours at $125 an hour) in the unsuccessful effort to resist paying benefits.) It was this order that was appealed and eventually made its way to the Florida Supreme Court. As a result of the decision, Ms. Murray’s attorney was awared $16,000 for his efforts at the trial level.The Supreme Court’s decision angered the Florida Legislature, the insurance industry, and big business. Their answer was to enact legislation denying reasonable attorney’s fees to claimants’ attorneys. Governor Charlie Crist allowed the legislation to become law. Hence, the stage was set for another challenge to the legislature’s mean-spirited handiwork.

On July 23, 2009, Jennifer Kauffman sustained an injury to her low back while attempting to transfer a patient into a recliner chair, when she lost her balance and fell backwards onto her buttocks and back. The accident was not witnessed and the employer investigated and disputed the claim. Ms. Kauffman hired an attorney and a claim was filed. The trial on the merits of the petition determined that all of the E/C’s defenses were denied and that the claim was compensable.

At a subsequent fee hearing, Ms. Kauffman’s attorney presented uncontroverted evidence of spending in excess of 100 hours to successfully prosecute the claim. The JCC found that “both parties vigorously and aggressively represented their respective parties’ interests,” and the “presentation of the evidence from both sides was difficult and complex.” Expert testimony was given that a reasonable rate of $200-$450 per hour was awarded within the jurisdiction in other types of cases. Nevertheless, the JCC felt bound by the statute and awarded a fee of $648.41, less than $7.00 per hour.

The JCC’s order has been appealed (Jennifer Kauffman v. Community Inclusions and Guaranty Insurance). The challenges involve constitutional issues and matters of statutory interpretation. Oral arguments were held on January 13, 2011 in the First District Court of Appeal, the first stop before reaching the Florida Supreme Court. As of the time this blog was posted, the 1st DCA had not issued its opinion.

If allowed to stand in its present form, 440.34 will have a chilling effect on the willingness of claimants’ lawyers to accept workers’ compensation cases and to handle them effectively.

Our law firm will continue to accept workers’ compensation on behalf of injured workers. However, we are hoping that the First District Court of Appeal and the Florida Supreme Court see fit to level the playing field to allow for the fair and effective prosecution of claimants’ cases.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Please contact our office for a free, confidential consultation.

The question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)The first exception applied in the first workers’ compensation case that I handled, a number of years ago. My client, who was blind in one eye, was struck in his good eye by the end of a whipping electric cord. The impact caused his retina to detach, leading to blindness in the good eye and overall total blindness. My client was a nice young man from the Bahamas, who had lived and worked in America for many years, but had never obtained the proper paperwork to work here legally. Nevertheless, despite resistance from his employer and its insurance carrier, I was able to obtain wage loss benefits for him, both temporary (prior to maximum medical improvement) and permanent (PTD; after reaching MMI).

I am unaware of any exceptions in personal injury cases. (Because of workers’ compensation immunity, Florida Statute 440.11, very few personal injury cases are brought against employers. However, in those rare instances where the immunity can be overcome, I believe that exception (2) would apply.)

Plaintiffs in personal injury cases should be cautious about pursuing lost wages past and future. Even if the trial court allows the claim to proceed, which is probably judicial error and therefore highly unlikely, the strategy could backfire. A wage claim by an unauthorized worker opens the door for the defendant to discuss the plaintiff’s undocumented immigration status. Especially in today’s social climate, jurors may well punish the plaintiff, not only denying the wage claim but also denying legitimate claims for pain & suffering and medical expenses.

For the plaintiff’s attorney willing to push the issue, an effort should be made to obtain a pre-trial court order prohibiting any reference to the plaintiff’s undocumented immigration status. Where the judge is allowing the claim for lost wages to be presented to the jury, it is doubtful that he will also prohibit references to immigration status.

UPDATE: HDV Construction Systems, Inc. v. Aragon, So.3d , 36 FLW D1376 (Fla.1st DCA 6-28-2011). In this workers’ compensation case, the District Court of Appeal upheld (affirmed) the ruling of the JCC (Judge of Compensation Claims) awarding an illegal immigrant permanent total disability (PTD) benefits. The DCA was strongly persuaded by the employer’s knowledge, prior to the accident, of the worker’s status as an undocumented alien. The court felt that industry, rather than the public, should bear the burden of compensating individuals seriously injured while working on their behalf. The ruling confirms the legislature’s intent to keep the burden on industry, despite federal law.

******************************************************

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to rotecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us at 866-785-GALE or by email to learn your legal rights.

To meet this goal, the FMLA is designed “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. Section 2601(b)(2).

An employer who violates the FMLA, may be required to compensate a damaged employee as follows:

• Pay money damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
• In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, pay any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
• Pay the interest on the amount described in the first bullet point calculated at the prevailing rate; and
• Pay an additional amount as liquidated damages equal to the sum of the amount described in first bullet point and the interest described above, except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest, respectively; and
• Provide such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

The employee has a duty to mitigate damages, in other words, diligently seek new employment. Failure of the employee to do so may preclude an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir. 2001).

The award available under the first bullet point is considered compensatory or actual damages. Actual damages differ significantly from the liquidated damages award under the FMLA. Instead of being actual damages, the liquidated damages are a penalty for failing to act in good faith and with reasonable grounds for believing that its act or ommission was not a violation of 29 U.S.C. Section 2615. Importantly, the burden is upon the employer to prove both elements.What constitutes good faith and resonable grounds is beyond the scope of this blog. The variations and subleties are endless. However, at the very least the employer must inform the employee of his/her rights under the FMLA. “Federal law requires that the employer notify the employee of FMLA entitlements and employee obligations through its employee handbook and also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining the consequences of a failure to meet the obligations.” Patterson v. Browning’s Pharmacy & Healthcare, Inc., 961 So.2d 982 (5th DCA 2007), citing to 29 C.F.R. Section 825.301(a)(1), (b)(1). “The notice shall be given within a reasonable time after notice of the need for leave is given by the employee – within one or two business days if feasible.” Patterson court, referring to Section 825.301(c).

FMLA issues are complex. An employee with concerns should seek legal assistance.

************************************************

Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

ACL tears can be partial or complete. A complete tear of the ACL has minimal ability to heal and often requires surgical reconstruction, as most patients suffer from functional problems, like giving way and instability, and significant pain. To a lesser extent, partial tears also produce pain and instability. There is serious debate within the medical and workers’ compensation communities about the need for surgical intervention for partial tears.

ACL reconstruction involves replacing the torn ligament, usually with the middle third patellar tendon or hamstring tendon graft. Although most people benefit from ACL reconstruction in functional terms, approximately 10% of patients require a second operation, mainly because of the loss of motion, further meniscal injury and graft failure. ACL reconstructions are not very successful in the long-run in people with chronic meniscal and chondral deficiency.

As ACL injuries typically occur in the context of physical activity, it is a common injury among manual laborers, individuals whose job duties include signficant amounts of climbing, lifting, squatting, and carrying.

Due to instability and pain associated with complete tears, manual laborers with any hope of returning to the work force will almost always require surgery and comprehensive post-surgical rehabilitation. Even then, a successful return to long-term gainful employment is not assured. Repetitive trauma associated with hours of manual labor on a daily basis can lead to pain and hasten the need for additional surgery.Even attempting to return to manual labor on a partial ACL tear can prove problematic. Repetitive trauma will cause pain and, in many instances, lead to greater tearing, even to a complete tear.

Florida’s workers’ compensation system is not especially kind to individuals whose injuries prevent them from performing their regular job duties. Even under the best of circumstances (e.g., a competent and fair doctor; a fair employer), the most a recovering worker can expect are a limited amount of lost wage benefits and employer/carrier-controlled medical benefits. Except in rare instances (i.e., Permanent Total Disability), once maximum medical improvement (see Florida Statute Section 440.02(1) for the definition of MMI) has been reached, monetary benefits will end no matter the long-term consequences of the injury on the injured worker’s ability to perform his/her regular job duties.

************************************************

Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.