WORKPLACE VIOLENCE IN MIAMI FLORIDA
GOING “POSTAL” GOES NATIONWIDE
“GOING POSTAL.” This became a catch phrase after a series of extremely violent incidents mostly centered around the United States Postal Service. Unfortunately, this phrase began popping up after a mind-numbing spate of workplace violence mass murders. Why do we care and why we should care about workplace violence.
First a little bit of an explanation of the “going postal” etiology. The expression derives from a series of incidents from 1986 onward in which United States Postal Service (USPS) workers shot and killed managers, fellow workers, and members of the police or general public in acts of mass murder. Between 1986 and 1997, more than 40 people were killed by current or former employees in at least 20 incidents of workplace rage. The earliest known use of the phrase was on December 17, 1993, in the St. Petersburg Times apparently during a symposium on workplace violence.
Indeed, why should we care about this type of incident? Simply stated, because anyone in a workplace environment today may be affected by a disenchanted co-worker, former employee, irate customer or any host of malevolent actors. For today’s purpose, the discussion will be mostly centered on acts of violence perpetrated by a co-worker. Because anyone working in a multi-employee environment is subject to the often suicidal-homicidal tendencies of the desperate worker.
So what happens after the destruction?
Publically, there is the usual knee-jerk outcry for more restrictions on gun ownership and coordination with mental health authorities. We are all too familiar with the lack of concrete measures taken to curb workplace violence and its usual companion to murder and mayhem. Firearms!
The focus of this blog is on the legal issues that may impact a workplace violence incident. In Florida workplace violence will be governed initially by the Worker’s Compensation Act contained in § 440 et seq Fla. Stat. (2016). Florida §440.11 defines and limits what types of actions may be maintained, or barred, by this statute. For the most part §440.11 is the exclusive remedy for injured workers in Florida. There are limited exceptions to the “exclusive” remedy afforded by this statute.
Florida’s Workers’ Compensation Law sets forth a comprehensive scheme intended “to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer….”
§ 440.015, Fla. Stat. (2010). This statutory scheme “is based on a mutual renunciation of common-law rights and defenses by employers and employees alike.” Id. “Injured employees who fall within the scope of its provisions are to be swiftly provided compensation and necessary medical benefits by the employer, irrespective of fault as a cause of the injury.” Bakerman v. The Bombay Co., 961 So.2d 259, 261 (Fla.2007). Under this modified no-fault system, employers in compliance with the Workers’ Compensation Law are immune from their employees’ common law negligence actions for damages arising from work-related injuries. Id. at 262. The statute provides employers “immunity from civil suit by the employee, except in the most egregious circumstances.” Id.
 Two shootings took place on the same day, May 6, 1993, a few hours apart. At a post office in Dearborn, Michigan, Lawrence Jasion wounded three and killed one, and subsequently killed himself. In Dana Point, California, Mark Richard Hilbun killed his mother and her dog, then shot two postal workers dead.
There are exceptions to an employer’s workers’ compensation immunity. In Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), the Florida Supreme Court reaffirmed prior holdings that recognized an exception to employers’ immunity where the employer “exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.” Id. at 687 (second emphasis added) (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986) ). As a result of Turner, the Legislature amended the exception language by enacting section 440.11 (1)(b) in 2003. Among other things, the amendment narrowed the exception standard by changing from the “substantially certain” standard identified in Turner to a “virtually certain” standard.
The bar has been set rather high as a result of Turner. In order to file an action against an employer, the Plaintiff will have to prove the elements found in Florida §440.11(b)(2). In most cases “violence” will need to “virtually certain” to occur. The salient portions of the statute follow.
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.
The statute is silent as to intentional torts committed by co-workers or others, even in these types of cases the employer will be shielded from common-law negligence actions unless Plaintiff’s counsel can fit the violence into an exception to exclusivity. Given the increasing frequency of these types of behaviors, one should seek the advice of counsel experienced in these all too often tragic cases.
Why should anyone care about fitting into an exception? The recovery of damages is severely limited in scope and amount under the worker’s compensation act. There are no limits to recovery amount in common-law based actions against the employer.
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