As personal injury and workers’ compensation attorneys, we are often asked whether an employee can recover damages from their negligent employer for acts which cause injury to the employee. Clients are often surprised by the explanation of the law and are upset at the law’s unfairness. This blog is intended to explain the history and effect of the employer immunity provisions of the Florida Workers’ Compensation Act.
Florida’s Workers’ Compensation Act was adopted with the goal of providing benefits to injured workers without the necessity of the employee having to prove that the accident was caused by the employer’s negligence. In return for this no-fault system, employers were granted immunity from being sued by the employee for negligent behaviors. However, immunity was not absolute. Initially, the system protected the employer from simple negligence, but there was no immunity for intentional acts by the employer or actions when the employer “engaged in conduct which is substantially certain to result in injury or death”. If the employee could prove that he/she was injured and that the employer’s actions were “substantially certain to result in injury”, then the employee could seek civil damages from the employer.
In 2003, the Florida Legislature modified the workers’ compensation law to make the statutes more “employer friendly”, including providing greater protections to employers from employee lawsuits. The changes made to Florida Statute 440.11 by the Legislature essentially gave the employer total immunity and made it virtually impossible to seek civil damages from the negligent employer.
Pursuant to §440.11(1)(b), Florida Statutes (2003), an employer is only liable for damages to an employee (or their heirs):
(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
As noted above, the new version of §440.11(b) (2003) makes it virtually impossible to sue your employer for civil damages, unless the employer acted intentionally. The “substantially certain” exception from previous statutes was replaced with more extensive limitations and burdens which prevent employee suits. Notably, the employee must prove:
- “the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger,” was
- “virtually certain to result in injury or death to the employee,” and
- “the employee was not aware of the risk because the danger was not apparent,” and
- “the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.”
- All of these acts must be proven by “clear and convincing evidence.”
Since its enactment, the Courts have strictly construed Section 440.11(1)(b) and have upheld the employer’s immunity unless the employer’s acts were “virtually certain” or intentional. Simply believing that injury could occur, or probably would occur, is not enough. This standard grants employers near absolute immunity, regardless of how negligent their actions are.
While many people might support these “strict” limitations on an employee’s ability to seek civil damages against their employer, we believe that the limitations go too far. The policy behind giving the employer immunity for negligent acts has been corrupted such that employers have no incentive to provide a safe workplace. Refusing to repair brakes on equipment, removing safety guards from saws, and refusing to provide safety apparatus have become permissible in the workers’ compensation system as there are no repercussions for the employer’s actions. While employers should be allowed some protections under this “no-fault” law, the greatest regard should be given to worker’s safety.
At the Law Office of JJ Talbott and Associates, we aggressively represent our clients and seek all available damages, whether through the workers’ compensation system or through a personal injury claim. If you have questions as to whether you’re being provided all of your workers’ compensation benefits, or whether you can seek damages from your employer, please call us for a free consultation at (850) 437-9600.