The Bruner Minefield - Employer Beware

Wednesday, September 29, 2004 | 0

In a case of first impression, Florida's First District Court of Appeals last month radically expanded the retaliatory discharge penalty in Florida Statute section 440.205 as amended in 2000, to provide for a civil cause of action against a subsequent employer who terminates an employee because of a work injury at an earlier employment.

In Bruner v. GC-GW, Inc. (1D03-3775, August 30, 2004), the Bruner, Bruner, sustained a compensable workers' compensation injury while employed with Ceco Corporation, his previous employer. Bruner subsequently became employed with GC-GW, Inc., d/b/a Jackson-Cook. However, shortly after hiring Bruner, GC-GW discharged him because he was a "W/C Risk" due to his having filed a workers' compensation claim against Ceco. Bruner subsequently filed suit against GC-GW pursuant to section 440.205, Florida Statutes, alleging that GC-GW wrongfully discharged him based upon his previous workers' compensation claim.

After filing its answer, GC-GW filed a motion for final summary judgment, asserting that section 440.205 does not provide for such a cause of action.

In its Final Summary Judgment, the trial court agreed with GC-GW that Bruner had no right of action against GC-GW pursuant to section 440.205, finding that GC-GW, as the subsequent employer, had done nothing to hinder, thwart, or prohibit Bruner from obtaining benefits flowing from his previous compensable injury.

The majority in the Appellate Court disagreed:

"We, therefore, conclude that section 440.205, which is clear and unambiguous, provides for a civil cause of action against an employer who discharges an employee for having filed a workers' compensation claim against a previous employer."

The Court, in dicta, seemed to indicate that there may not be a civil cause of action for refusal to hire:

"Had this case presented the issue of whether a civil cause of action exists against an employer who refuses to hire a job applicant for having filed a workers' compensation claim against a previous employer, GC-GW's argument would have merit. However, that is not the issue presented here. Furthermore, simply because the Legislature did not provide for a civil cause of action for refusal to hire in this context does not mean that the Legislature did not intend for there to be a civil cause of action against an employer who discharges an employee for having filed a past workers' compensation claim."

Justice Kahn, in rebuttal, wrote a well reasoned dissent on the grounds that he was not persuaded that the public policy of Florida is as clear as the majority opinion would have the legal scholar believe:

"I would read section 440.205 narrowly, as in derogation of the common law. I would also read the section narrowly because it interferes with Florida's doctrine of at-will employment, and with the general freedom of contract exercised by employers and employees regularly. I would read the statute as simply prohibiting retaliation by an employer who has actually been subjected to a valid workers' compensation claim by the employee in question. Indeed, and having read the out-of-state case law relied upon by the majority, I am at a loss to understand how the concept of retaliatory discharge applies to an employer against who no claim has ever been made by the employee. It is almost as if we would have to assume some vast conspiratorial urge on the part of employers, and I am not willing to go that far. If the argument for a cause of action against a subsequent employer has merit, then that argument should be memorialized by the Legislature."

Justice Kahn also wrote that he was troubled that the majority said retaliatory intent was not necessary for a 440.205 cause of action.

This landmark case significantly raises the bar for employer liability. Defense counsel would do well to provide a copy of this decision to their clientele to ensure that they understand the import of the court's ruling on their human resource management. Claimant counsel now have expanded responsibilities to ensure that clients are aware of their rights moving forward, and are properly protected as they move from one employment setting to another.

Employers, however, must pay particular attention to this opinion. HR personnel must now add even more caution to their termination practices as the liabilities created by this case can cause significant issues in the future.

Article by David DePaolo, Sr Editor, WorkCompCentral

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.