On April 20, 2016, the Florida First District Court of Appeal rendered a decision in Miles v. City of Edgewater Police Dept.,190 So.3d 171 (Fla. 1st DCA 2016). The factual setting involved a police officer endeavoring to prove entitlement to Florida workers’ compensation benefits, without the aid of an attorney. Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016).
Mr. Castellanos challenged Section 440.34 on multiple grounds, including the “right to contract.” The Court decided the case “on the basis of the constitutional rights of the claimant under due process,” and therefore did not address “the other grounds raised,” including the "right to contract." While the case may not specifically stand for contract rights, the issue was raised.
A main premise of Castellanos is that injured workers are not capable of representing their own interests in a Florida workers’ compensation proceeding. The Court noted that “in a ‘lengthy and expensive contest’ with an E/C, a claimant proceeding ‘without the aid of competent counsel’ would be as ‘helpless as a turtle on its back.’”
The Court analyzed Florida’s “statutory fee” a formula by which the labor of attorneys was compensated using “a sliding scale based on the amount of workers' compensation benefits obtained.” Using that formula, the Court considered a fee specific to that case, which effectively compensated “Castellanos' attorney . . . only $1.53 per hour for 107.2 hours of work.”
The Court concluded that specific outcome unconstitutional. But, the Court eschewed traditional constitutional analysis of “facial” or “as applied” infirmity, and concluded instead that Section 440.34 was unconstitutional because it established a “conclusive irrebutable presumption.” The Court was clear that it “is the irrebuttable statutory presumption - not the ultimate statutory fee awarded in a given case - that we hold unconstitutional.” Statutes that fix a set amount, and afford no "out" are unconstitutional.
The Court noted that this outcome, invalidating a statutory mandate regarding compensation, is appropriate. Because, the Court says, reasonable attorney's fees have always been "the linchpin" to the constitutionality of the workers' compensation law. Not “a” linchpin (linchpin, according to the Cambridge online Dictionary , is “a person or thing that is the most important part of a group or system’s operation.”). Attorney fees, the Court held, are the most important element of Florida workers' compensation.
The Court held that a fee award (payment for labor) “calculated in strict compliance with the statutory fee schedule” meant that “the statute presumes that the ultimate fee will always be reasonable,” and that the statute failed to provide “any mechanism for refutation.” In other words, the statute legislatively set remuneration as reasonable, and deprived both parties to the employment (of an attorney) contract of the ability to deviate (higher in this Castellanos instance) from that statutory mandate. Of course, the statute would clearly allow the parties to deviate downward from the fee, as it set a maximum not minimum fee.
Days earlier, the Florida First District Court of Appeal had rendered Miles. The Court considered the Section 440.34 restriction on payment of attorney fees by injured workers in Florida. The Court concluded that while a statute may establish rights, we are free to waive those rights. The statute prevented or constrained injured workers paying fees. The Court concluded that the state has no interest in protecting workers in this way.
The Court noted “Florida case law has long recognized that an individual can waive his or her personal constitutional rights,” even “protective rights.” A litany are cited, including rights to present evidence, to be free from warrant-less search, and to remain silent. That last one always reminds me of the comedian describing his arrest when he says "I had the right to remain silent, but I lacked the capacity."
The Miles Court reasoned that “if a person can waive constitutional rights, a person can also waive statutory rights.” In fact, the Court noted that The Florida Supreme Court has already so held in In re Amendment to the Rules Regulating the Florida Bar, 939 So.2d at 1038–39 (Fla. 2006). The Court concluded similarly, there is “no reason why a workers' compensation claimant should not be able to waive a limitation on claimant attorney's fees.” When the legislature enacts laws to protect people's best interests, those people are free to waive those protections.
That is a critical difference between the analysis in Castellanos and Miles. The Castellanos Court painted over the statute with a finding of patent unconstitutionality (it cannot be appropriately applied in any case because it sets a fee and affords the contracting parties no opportunity to negotiate to some other, mutually agreeable, figure). Miles, instead, confines to traditional constitutional analysis and concludes the statute unconstitutional “as applied” to Ms. Miles.
There are those that now argue that all Florida workers are as impaired by the law as Ms. Miles. Their contention essentially that the statute is unconstitutional “as applied” to any worker, or at least to many workers. Others argue a more constrained interpretation of Miles, and a case-by-case analysis of the statutory impairment demonstrable to each particular worker. As of this time, the debate continues and there is no necessarily definitive answer, but some predict that further analysis may be forthcoming from the Court in future cases.
The Miles Court concluded “Thus, the public harm to be prevented - undue depletion of workers' financial resources and undue disruption of the workplace - does not prevail against the individual's right to contract for legal representation.” The individual, you see, has the right to contract according to the Court. The injured worker has the right to hire an attorney and the attorney has the right to negotiate the terms upon which she or he is willing to perform the work. Some conclude that Miles therefore is a "right to contract" case, more so than Castellanos.
But, what if the statute did not set maximum fees for attorney representation? What if it instead set minimum fees for representation. If a statute cannot determine the most that someone can be paid for their labor can it nonetheless set the minimum? Some argue that this is the effect of Section 440.34 in setting a "statutory fee."
The analyses of both Miles and Castellanos have spurred some other interesting discussions. Discussions of the right to contract, and statutory provisions that set compensation without some methodology allowing deviation.
For example, in Florida, minimum wages for workers are set by both the Fair Labor Standards Act, and the Florida Minimum Wage Act. Section 448.110(3), Florida Statutes (2009). These laws establish a minimum hourly rate at which work will be compensated. Under these, the “Employer was required to pay Claimant a minimum wage for all hours worked during the course of employment.” See, Martinez v. Ford Midway Mall, Inc., 59 So.3d 168 (Fla. 3rd DCA 2011). There is no common law right to such minimum compensation, nor any constitutional mandate of such wage.
Theses statutes create a right, arguably in a similar manner as Section 440.34 created a right regarding attorney fees payable by an injured worker. These statutes arguably restrain the ability of two persons to negotiate a contract of employment, placing statutory constraints on the terms of such a contract.
For example, in Florida, minimum wages for workers are set by both the Fair Labor Standards Act, and the Florida Minimum Wage Act. Section 448.110(3), Florida Statutes (2009). These laws establish a minimum hourly rate at which work will be compensated. Under these, the “Employer was required to pay Claimant a minimum wage for all hours worked during the course of employment.” See, Martinez v. Ford Midway Mall, Inc., 59 So.3d 168 (Fla. 3rd DCA 2011). There is no common law right to such minimum compensation, nor any constitutional mandate of such wage.
Theses statutes create a right, arguably in a similar manner as Section 440.34 created a right regarding attorney fees payable by an injured worker. These statutes arguably restrain the ability of two persons to negotiate a contract of employment, placing statutory constraints on the terms of such a contract.
In this regard, does the requirement of a minimum wage abut Miles and Castellanos? Do Floridians have an absolute right to contract? Can a person agree to perform work or tasks for another in exchange for some monetary (or even non-monetary) consideration? And, though the government has seen fit through both federal and state legislation to define the minimum compensation for labor, just as it did regarding compensation for attorneys, are the parties to other employment contracts equally free under Miles to waive those “statutory rights.”
Might two parties sit at the table and negotiate a contract for the performance of work? Might those parties each propose terms and conditions of the agreement, from "where," to "when," to "what," and to "how much" will be paid and how much will be performed? And, following the Court’s waiver logic (whether the Florida Supreme Court’s in Amendment to the Rules, or the First District’s in Miles), does not a worker have every right under the constitutions (Federal and Florida) to waive the mandates of the minimum wage?
There might be arguments about whether such a waiver would or would not be in the worker's interest. Some might contend that such an "interest" analysis is not relevant. Others might argue that worker interest is both relevant and an integral part of the Miles analysis. They might argue that the waiver outcome in Miles is only appropriate with such an "interest" caveat. Still others might argue that the state's interest in an income minimum is more compelling than its interest in income source (Miles) or an income maximum (Castellanos).
Perhaps an argument on the minimum is more compelling because of (potentiality or reality) that state services and programs could be more burdened by those whose earnings fail to meet a level providing sustenance, such as the "poverty level." But, would that sustenance argument be applied as validly to a teenager working after school as to a head of household in the same job? Some might argue that such a disparity in people is the foundational basis for an analysis that is "as applied" as used by the Miles Court?
And, the Miles Court analysis centers in part on the conclusion that without the attorney fee waiver, thus without the attorney, the injured worker might therefore receive nothing. The Court explains that something is likely better than nothing in that context; that receiving some benefits, though depleted by fees to some extent, is better than receiving no benefits. In that regard is receiving some wages (though not the minimum) better than receiving no wages (because the business hiring makes an economic choice not to hire because of the minimum)? Is an absence of available work at a minimum price preferential to some work at some lower price?
There might be arguments about whether such a waiver would or would not be in the worker's interest. Some might contend that such an "interest" analysis is not relevant. Others might argue that worker interest is both relevant and an integral part of the Miles analysis. They might argue that the waiver outcome in Miles is only appropriate with such an "interest" caveat. Still others might argue that the state's interest in an income minimum is more compelling than its interest in income source (Miles) or an income maximum (Castellanos).
Perhaps an argument on the minimum is more compelling because of (potentiality or reality) that state services and programs could be more burdened by those whose earnings fail to meet a level providing sustenance, such as the "poverty level." But, would that sustenance argument be applied as validly to a teenager working after school as to a head of household in the same job? Some might argue that such a disparity in people is the foundational basis for an analysis that is "as applied" as used by the Miles Court?
And, the Miles Court analysis centers in part on the conclusion that without the attorney fee waiver, thus without the attorney, the injured worker might therefore receive nothing. The Court explains that something is likely better than nothing in that context; that receiving some benefits, though depleted by fees to some extent, is better than receiving no benefits. In that regard is receiving some wages (though not the minimum) better than receiving no wages (because the business hiring makes an economic choice not to hire because of the minimum)? Is an absence of available work at a minimum price preferential to some work at some lower price?
Similarly, might a worker have every right to waive statutory rights under the Occupational Safety and Health Act of 1970? Might a worker preemptively waive rights under the Affordable Care Act, Social Security Act, Family Medical Leave Act, Whistleblower Act, and more? Are these any less statutory rights than the statutory rights which both the Florida Supreme Court (In Re Amendments) and First District Court (Miles) have concluded may be freely waived?
Perhaps such a broad application of statutory waiver is not the Courts' intent in rendering their analyses. Certainly, the decision processes of courts are markedly different from legislative bodies. Courts make decisions based upon the evidence that is adduced and presented in a particular case. The law is interpreted in light of that particular set of facts and circumstances. Legislative bodies are conversely perhaps more likely to explore broader circumstances, to be less confined to a particular fact scenario or controversy.
Miles began with worker who sought to make a contract. The employee and a lawyer and a third party negotiated an agreement that was (at that time) arguably outside the mandates of Section 440.34. Arguably, that contract violated the statute. The parties sought legal enforcement of that contract, and were successful because the First District Court concluded that the constitutional rights of those parties (to contract) afforded them the right to proceed in that manner despite the contrary statute. In such a conflict of authorities, the constitution takes precedent over the statute, and thus the contract prevailed.
Miles began with worker who sought to make a contract. The employee and a lawyer and a third party negotiated an agreement that was (at that time) arguably outside the mandates of Section 440.34. Arguably, that contract violated the statute. The parties sought legal enforcement of that contract, and were successful because the First District Court concluded that the constitutional rights of those parties (to contract) afforded them the right to proceed in that manner despite the contrary statute. In such a conflict of authorities, the constitution takes precedent over the statute, and thus the contract prevailed.
Similarly, could a Florida employer enter into employment contracts with Florida workers that are, at the time of negotiation, outside the constraints of various Florida statutes? Could employment contracts waive the minimum wage, FMLA, unemployment compensation, and more? Could an employment contract waive all of the protections of Florida workers' compensation? Could an employer effectively “opt-out” of workers’ compensation today by negotiating a preemptive waiver of such statutory rights as part of each contract of employment? Some argue that Miles says nothing less.
Or, would the Courts have a different view of those statutory rights, and the ability of a contracting party to waive them? Would the interest of the state be perceived as stronger in some or all of these other statutory right contexts? Might the interest of the state in some contexts be deemed more "compelling," thus leading the court in a particular case to a less profound respect for the right to contract?
Perhaps the reason so many find the law intriguing, is that courts are called upon to make difficult decisions. They are presented with the laws enacted by the elected representatives of the people following debate and broad analysis. But they interpret statutory language, and consider whether constitutional protections or fundamental rights are unduly impaired, with a more focused, case-specific analysis. The law is an inextricable conflict of the general and the specific, the writers (legislature) and interpreters (courts). It is complex, confusing, and ever-changing. And that is perhaps why people find it so interesting.
Perhaps the reason so many find the law intriguing, is that courts are called upon to make difficult decisions. They are presented with the laws enacted by the elected representatives of the people following debate and broad analysis. But they interpret statutory language, and consider whether constitutional protections or fundamental rights are unduly impaired, with a more focused, case-specific analysis. The law is an inextricable conflict of the general and the specific, the writers (legislature) and interpreters (courts). It is complex, confusing, and ever-changing. And that is perhaps why people find it so interesting.
