Interestingly, when it comes to workers’ compensation benefits, Florida law protects certain undocumented workers.

Florida offers three types of wage-loss benefits to injured workers: (1) Permanent Total Disability (§440.15(1), Fla. Stat.); (2) Temporary Total Disability (§440.15(2)); and (3) Temporary Partial Disability (§440.15(4)). To qualify for any of these benefits, the employee bears the burden of proving that the inability to obtain employment—or to earn pre-injury wages—is the result of physical limitations caused by the industrial accident, rather than general economic conditions or a lack of available work. City of Clermont v Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984).

Because undocumented workers are prohibited under both federal and state law from working legally in the United States, they are, by definition, unable to meet the burden of proving an ability to obtain lawful employment.

Surprisingly, Florida has adopted an equitable approach to this issue. In HDV Construction Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. 1st DCA 2011), the First District Court of Appeal explained it as follows:

Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So.2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature’s right to enact workers’ compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So.3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So.2d 799, 800 (Fla.1949).

This broad pronouncement is subject to an important qualification. In Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), the court held that an employer who hires an undocumented worker is precluded from asserting the worker’s immigration status as a defense to avoid liability for disability benefits—but only where the employer knew or should have known of the worker’s true status. As the court explained, this rule ‘prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage-loss benefits.’ Id. at 1170.

In HDV, the Judge of Compensation Claims concluded, based on the authority of Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), that, because the Employer knew or should have known of Claimant’s illegal status prior to his injury, but continued his employment nonetheless, the E/C was precluded from using Claimant’s illegal status as a defensive measure — requiring the E/C to respond to the disability imposed by Claimant’s significant and objectively demonstrated work-related injuries and physical restrictions, and his vocational limitations which include, but are not limited to, his unauthorized work status. The First DCA affirmed the lower court’s decision.

In our initial client interviews with undocumented workers, as well as in our discovery, we focus on establishing that the employer knew or should have known of the employee’s immigration status. For example, in our initial formal document requests, we ask the employer to produce ‘All Form I-9s signed by the claimant and the employer.’ The Form I-9, or Employment Eligibility Verification, is a mandatory government form that employers must complete and retain to confirm the identity and work authorization of every individual hired in the United States. Both the employee and employer are required to complete the form, which serves as proof of compliance with laws prohibiting the employment of unauthorized workers. The employer’s failure to ensure this form was completed indicates that it knew, or at minimum should have known, that its employee was undocumented. This is not the only way of demonstrating the requisite evidence.

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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.

Voluntary Limitation of Income Defense

Our client was fired from her job. She did not resign or refuse employment. In Carcamo v. Business Representation Internation & North River Ins. Co., 37 So. 3d 901 (Fla. 1st DCA 2010), the injured worker voluntarily resigned from suitable employment. The employer/carrier (E/C) denied her claim for TPD benefits. The judge of compensation claims (JCC) sided with E/C. The First DCA disagreed with the JCC and remanded the case for further factual findings.

The appellate court pointed out that a voluntary resignation does not alone support the denial of TPD benefits. Carcamo at 901. What must be taken into account is whether the claimant’s refusal was justifiable, section 440.15(6), Florida Statutes, and the continued availability of the job. See Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009) (although employer not required to continually reoffer job to avail itself of statutory defenses based on unjustified voluntary limitation of income, employer must establish continued availability of job for each applicable period to obtain continued benefit of defense).

Our client, a single mother with sole custody of a young child, sustained a significant injury that required extensive surgical repair. After a lengthy recovery period, she was offered light duty work by the same employer. At the time of the job offer, our client and her daughter were living at her mother’s home in Georgia. Due to logistical issues, our client, who otherwise had an exemplary work history, showed up for work one week late. She was fired a few days later. She has not been contacted since by the employer to return to work.

These facts would seem to defeat the voluntary limitation of income defense. In the most obvious sense, being fired was not a voluntary act by our client, the injured employee. The defense also flies in the face of E/C’s termination for cause defense.

Termination for Cause Defense Section 440.15(4)(e) provides that postinjury TPD benefits can be denied if the employee is terminated for misconduct.

440.02(18) defines “misconduct” as:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

443.036(29), contained in the section of Florida law dealing with reemployment assistance, also addresses “misconduct,” describing it as follows:

(a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee. Such conduct may include, but is not limited to, willful damage to an employer’s property that results in damage of more than $50, or theft of employer property or property of a customer or invitee of the employer.

(b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

(c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.

(d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.

(e)1. A violation of an employer’s rule, unless the claimant can demonstrate that:

a. He or she did not know, and could not reasonably know, of the rule’s requirements;

b. The rule is not lawful or not reasonably related to the job environment and performance; or

c. The rule is not fairly or consistently enforced.

2. Such conduct may include, but is not limited to, committing criminal assault or battery on another employee, or on a customer or invitee of the employer or committing abuse or neglect of a patient, resident, disabled person, elderly person, or child in her or his professional care.

These standards account for the holding in Thorkelson v. NY Pizza & Pasta, Inc., 956 So. 2d 542 (Fla. 1st DCA 2007), which cited Blodgett v. Fla. Unemplmt. App. Comm’n, 880 So.2d 814, 815 (Fla. 1st DCA 2004) for the proposition that “An employee’s actions sufficient to justify discharge from employment do not necessarily constitute misconduct sufficient to bar recovery of unemployment benefits.”

While Blodgett is an unemployment compensation case, because the Florida’s Legislature’s use of a virtually identical definition of “misconduct” in the workers’ compensation statutes as is used in the unemployment compensation statutes [Chapter 443, Florida Statutes], it and other unemployment compensation cases have come to be accepted as authority with regard to the meaning of “misconduct” in workers’ compensation cases. Thorkelson, id. at 545.

Interestingly, as to both statutes, whether “an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria . . . are separate issues.” McCarty v. Fla. Unemplmt. App. Comm’n, 878 So.2d 432, 434 (Fla. 1st DCA 2004) (internal quotation marks and citation omitted); Lyster v. Fla. Unemplmt. App. Comm’n, 826 So.2d 482, 484-85 (Fla. 1st DCA 2002).

Here is an illustrative list of holdings in unemployment compensation cases addressing “misconduct” in the context of the entitlement to benefits:

• Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37 (Fla. 3rd DCA 1996): Although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits.
• Cullen v. Neighborly Senior Services, 775 So. 2d 392 (Fla. 2nd DCA 2000): Meeting between employee and operations supervisor occurred in a private office and there were only two other employees present. Isolated incident where employee raised voice to operations supervisor did not constitute misconduct connected with work.
• Benitez v. Girlfriday, Inc., 609 So. 2d 665 (Fla. 3rd DCA 1992): Appellant’s isolated use of offensive language during a private argument with her supervisor was not misconduct connected with work.
• Johnson v. Florida Unemployment Appeals Comm’n, 513 So. 2d 1098 (Fla. 3rd DCA 1987): Offensive language was not misconduct where it was an isolated incident, was in a private office, and was neither a personal attack on the supervisor or calculated to undermine authority.
• Jorge v. Florida Unemployment Appeals Comm’n, 765 So.2d 889 (Fla. 3rd DCA 2000); Pascarelli v. Unemployment Appeals Comm’n, 664 So.2d 1089 (Fla. 5th DCA 1995): If the claimant’s refusal to perform the assigned task was unreasonable, his conduct constitutes misconduct connected with work.
• Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995): Poor judgment does not constitute misconduct under 443.101.
• McKinney v. United States Sugar Corp., 492 So.2d 478 (Fla. 4th DCA 1986): Isolated good faith errors in judgment do not constitute misconduct.

Our client was a good worker. After sustaining a significant injury and undergoing surgery, she struggled to recuperate and care for her child. While in Georgia receiving assistance from her mother, she was given short notice to return to work. She was fired for showing up a week late.

We will argue that these facts do not rise to the level of “misconduct” as contemplated in the workers’ compensation and unemployment compensation statutes. Not that it is conclusive in the workers’ compensation case, but our client applied for and did receive unemployment compensation benefits.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) 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.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.