Consider the following scenario:

Wynona Whiner is hired as a file clerk for a local law firm. Wynona gets a paper cut on her second day at work and files a workers’ compensation claim. Wynona’s doctor takes her off work for three days after the cut becomes infected over the weekend. On Monday, Wynona presents the law firm with the doctor’s note stating that she can return to work on Tuesday. However, Wynona does not return to work until the following Monday. When she returns to work, the law firm terminates Wynona under the firm’s no call, no show policy.

Which of the following statements is correct?

A.  Wynona may not bring a retaliation claim if her workers’ compensation claim is denied.

B.  Wynona may not bring a claim for retaliation because she was fired during her 90-day probationary period.

C.  Wynona will prevail on a claim for retaliation because she was fired within three months of filing a workers’ compensation claim.

D.  Wynona may have a claim for retaliation if the no call, no show policy has only been enforced against employees who have filed workers’ compensation claims.

The correct answer is D.  Florida Statute § 440.205 provides:

No employer shall discharge, threaten to discharge, intimidate or coerce any employee by reason of such employee’s valid claim for compensation or attempted claim for compensation under the workers’ compensation law.

D is correct. Wynona may have a claim for retaliation if she can show that the firm’s proffered reason for termination (i.e. violation of the no call, no show policy is pretextual) because the firm selectively enforces the policy only against employees who have filed workers’ compensation claims.

A is incorrect because a workers’ compensation claim does not need to be found compensable in order for an employee to have a discrimination claim. It is enough that the employee’s claim was valid (i.e. filed in good faith).

B is incorrect because Wynona was entitled to the protection of the workers’ compensation statute the moment she became employed. There is no waiting period.

C is incorrect. Close temporal proximity between the filing of a workers’ compensation claim and an adverse employment action may be strong evidence of a causal connection. However, close temporal proximity between the workers’ compensation claim and the adverse action, alone, does not guarantee success under Florida Statute § 440.205. An employer may defeat a retaliation claim if it had a non-pretextual business reason for a termination – – in this case, violation of the firm’s no call, no show policy.