A workers’ compensation retaliation claim must be arbitrated under the parties’ arbitration agreement, according to a recent decision by Florida’s Second District Court of Appeal, Audio Visual Innovations, Inc. v. Spiessbach (Fla. 2d DCA, August 16, 2013).

Michael Spiessbach injured his back while working for Audio Visual Communications, Inc. (AVI).  He claimed that after filing a claim for workers’ compensation benefits, AVI treated him differently and eventually terminated his employment because of his claim.  Spiessbach then filed suit under Florida’s workers’ compensation retaliation law, section 440.205, Florida Statutes.
AVI moved to compel arbitration, but the trial court denied the motion.  On appeal, the Second District Court of Appeal considered several issues.  First, did the arbitration agreement substantially diminish the statutory remedies under section 440.205?  The court held that it did not.  The employee was not required to pay the arbitrator’s fees, and the arbitrator was authorized to grant any relief that a court could grant.
Second, was the workers’ compensation retaliation claim a claim for “workers’ compensation benefits” that was excluded under the parties’ arbitration agreement?  The court held that it was not, noting that a petition for workers’ compensation benefits is filed with the Office of the Judges Compensation Claims, whereas a claim for workers’ compensation retaliation is filed in Circuit Court.
Third, did the employer waive its right to arbitration by filing two motions for extension of time to answer the complaint, participating in mediation, and waiting five months before demanding arbitration?  The court held that the employer did not waive its right to arbitration because it did not file a responsive pleading or otherwise take a position on the merits that would be inconsistent with its right to arbitration.
The court therefore reversed the trial court’s order and directed the trial court to grant AVI’s motion to compel arbitration.
For employers, the Spiessbach case is a good illustration of the pros and cons of arbitration.  The main benefit to the employer is that the case will be decided by an arbitrator rather than a jury.  For employers who fear hostile, “runaway” juries, that is a good thing.  On the other hand, arbitration agreements are often challenged by employees.  The cost of defending the arbitration agreement in court, coupled with the arbitrator’s fees, may prove to be more expensive than litigation.  In addition, if the employer has a good case for summary judgment, court may be a better option, as arbitrators are hesitant to make an award for an employer without a hearing.  Accordingly, whether to have an arbitration agreement depends on many factors that should be carefully considered.