440.205 Workers’ Compensation Retaliatory Discharge Claims May be Subject to Arbitration

scales.jpgFlorida 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.

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