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Drug Free Workplace Response to Motion to Dismiss






Plaintiff,                       Case No.







                        RESPONSE TO MOTION TO DISMISS


      Plaintiff, Sample Plaintiff, responds to Defendant’s Motion to Dismiss


(Doc. 5) as follows:



      There is a private action for violation of the Drug-free workplace Act (the “Act”) per the language of the statute, Federal and State case law, and the rules of statutory construction. Further, even if no private cause of action exists, Plaintiff is a third party intended beneficiary of the Defendant’s voluntary agreement to subject itself to the Act.


I. Fla. Stat. Sec. 440.102(5)(k) indisputably provides for Employee Protection from certain discharge.

F.S. Sec. 440.102(5) (titled PROCEDURES AND EMPLOYEE PROTECTION) is quite specific about providing employees protections from certain types of discharge. That law governs the methods by which employers can terminate employees for drug testing and provides in part as follows:

(k) An employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.


(emphasis supplied).  These duties are imposed only on employers that voluntarily accept the benefits of the Act and thus agree to be bound by its obligations.[1]

There is no administrative agency or review process associated with the protections afforded by F.S. Sec. 440.102(5).  Thus, by implementing this law, the Florida legislature must have intended a cause of action exists – otherwise 440.102(5) is completely meaningless and unenforceable.

II. Defendant’s interpretation of 440.102(5)(k) renders

it superfluous, a result not permitted by well established rules of statutory construction.

At page 5 of its Motion, Defendant argues the following two things are “What the FDFWA does”:

1.       [I]f an employee tests positive pursuant to a drug testing program that is  not in compliance with the Act,  and the employer consequently denies workers’ compensation benefits in the case of a work-related injury, the employee may take legal action to reverse the employer’s denial of benefits.

2.       Similarly, if the above-described employee is terminated based on the positive drug test and subsequently sues for breach of  an employment

contract or CBA that requires termination be for cause, the employee may cite the  employer’s

noncompliance with the FDFWA to effectively challenge the employer’s denial of liability.

(e.s.).  However, nowhere in the above two alternatives is any purpose given to F.S. 440.102(5)(k).  Nowhere in these options would the employee have any recourse for termination unless they already had protections under an “employment contract or CBA.”  Further, employees with employment contracts/CBA agreements typically do not need the protections of F.S. 440.102(5)(k) because those contracts normally allow termination only for “cause.” Moreover, the Act permits the drug testing of all employees, not only those covered by an employment contract or CBA; the notion that only those employees are protected is illogical.

Protection from termination is the specific purpose of F.S. 440.102(5)(k). It says nothing about protecting only employees with employment contracts or employees already protected by a CBA.  In fact, the terms of F.S. 440.102(5)(k) belie such an interpretation because it specifically lists “job applicant(s)”; job applicants obviously do not have an employment contract or are protected by a CBA.  The fact that  F.S. 440.102(5)(k) includes job applicants makes Defendant’s argument that only employees with employment contracts/CBA’s transparently flawed and incorrect.  F.S. 440.102(5)(k) by its plain terms protects “an employee or job applicant” and Defendant’s argument that this only means employees with contracts/CBA’s is without merit.

The Defendant’s interpretation of F.S. 440.102(5)(k) would gut its protections for most employees and all job applicants, making the provision worthless because employees with contracts/CBA’s are already protected by those contracts/CBA’s.  However, the Act still permits employers to drug test all its employees.  Such an interpretation is contrary to well-established rules of statutory interpretation.  The legislative intent of Ch. 440 as expressed by 440.015 emphasizes that “the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction….”  Applying the rules of statutory construction, both Federal and State courts emphasize that laws, and their subparts, should not be made superfluous as if passed into law for no reason.

For example, in Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir.2005), citing Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the 11th Circuit noted as follows:

To interpret the statute in this way would make subpart (b) [of § 812.014(1)] superfluous, thereby violating the well-established rule of statutory construction that courts must give effect, if possible, to every clause and every word of a statute.


(e.s.).  See also Wood v. Cellco Partnership, 2007 WL 917300 at *5-7 (M.D.Fla. Mar. 23, 2007) (noting that “the interpretation of section 448.103 urged by Defendant would render the catchall provision of subsection (e) meaningless”).   It is the “`cardinal principle of statutory construction’ . . . [that] [i]t is our duty `to give effect, if possible, to every clause and word of a statute’ . . . rather than to emasculate an entire section.” United States v. Menasche, 348 U. S. 528, 538 (1955), (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937), and Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)).

Florida law is similarly stringent about interpreting statutes in a manner to give each word effect.  Florida law makes it imperative by the constitutional precept that no legal wrong should be suffered without a remedy. Article I, Section 21, Florida Constitution (1968). See also Baxter’s Asphalt, etc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981).  Thus, Florida’s constitution mandates that remedies be available when a legal wrong is made.  F.S. Sec. 440.102(5) specifically states those legal wrongs and the employer is on notice of these rights (and its obligations) when it voluntarily accepts the financial benefits of the Act.

If the Defendant’s interpretation of F.S. Sec. 440.102(5)(k) was accepted, the vast majority of employees and all job applicants would have no protection from termination, discipline or refusal of hire “on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.”  See F.S. Sec. 440.102(5). The only possible interpretation of  F.S. Sec. 440.102(5)(k) is that it protects employees and job applicants.  Thus, a lawsuit is the only possible manner such an employee or job applicant would have to remedy a violation of F.S. Sec. 440.102(5)(k).  That is the only interpretation that would give effect to the entirety of  F.S. Sec. 440.102(5)(k), including its protections for job applicants.

III.  Courts at both the Federal and State levels have indicated that a cause of action exists.

      If an employer voluntarily subjects itself to the Act, at least one State court and one Federal court have implied that a cause of action exists. In Laguerre v. Palm Beach Newspapers, Inc., 20 So. 3d 392 (Fla. 4th DCA 2009), the Fourth DCA addressed an individual’s claim for termination based on a test result which did not comply with §440.102.  The Laguerre court noted that implementation of a drug-free workplace pursuant under the workers’ compensation statutes is voluntary, and therefore the Act’s requirements apply only to those employers who implement its policies and benefit from its financial incentives. The Laguerre court upheld the trial court’s summary judgment for the employer, because the employee had not shown that the employer operated or represented that it operated a drug-free workplace within the meaning of § 440.102, Fla. Stat.

The Laguerre case did not address what the result would have been if the employer had elected the drug-free workplace program, and obtained a discount under that program. However, it is a reasonable assumption that (had there been no such cause of action) the court would have just concluded the matter on that basis, instead of making a factual finding that the plaintiff did not qualify for its protections.

Moreover, notably, Laguerre made no reference to Morrison v. Morgan Stanley Properties, 2008 U.S. Dist. LEXIS 30953 (S.D. Fla. 2008) – the case relied upon by Defendant on page 7 of its Motion.  Additionally, the Federal court in Morrison (decided in 2008) did not have the benefit of the State court decision in Laguerre (decided in 2009) when making its ruling. As such, when Morrison was decided, no Florida courts had apparently even addressed the issue.  Thus, having no Florida courts at the time even implying that a cause of action exists, the Morrison court naturally concluded that there was no cause of action.  However, now we have the benefit of Laguerre, and it implies a cause of action exists if the employer adopts the benefits of the Act.

Similarly, in Torres v. Eagle Technologies, Inc., Case No. 8:09-cv-756-T-30 EAJ, 2010 WL 2243700, *4 (M.D. Fla., Tampa Division, June 4, 2010), the plaintiff (Torres) claimed that Eagle violated Florida’s Drug Free Workplace Act, Fla. Stat. §440.102, by failing to conduct his annual drug test in accordance with the terms of the statute. The court noted that “An employer has the choice of whether to implement a drug free workplace program under the statute.” citing Laguerre v. Palm Beach Newspapers, Inc., 20 So. 3d 392, 394 (Fla. Dist. Ct. App. 4th Dist. 2009). The Torres court also noted that “Eagle is only required to comply with the terms of the statute if Eagle elected to operate a drug free workplace program pursuant to the statute.” Id. Although the court granted summary judgment for the defendant, it did so soley based on the fact that Eagle did not elect to operate a drug free workplace – not that the cause of action does not exist.  To the opposite, the court made it clear that employers are “required to comply with the terms of the statute if [they elect] to operate a drug free workplace program pursuant to the statute.”

Again, as with Laguerre, Torres made no reference to Morrison v. Morgan Stanley Properties, 2008 U.S. Dist. LEXIS 30953 (S.D.Fla.2008).  Instead, it properly relied upon the Florida case of Laguerre for the interpretation of Florida Statute Section 440.

IV.  Fla. Stat. Sec. 440.102(5)(k) imposes a duty designed

to protect employees.

      In deJesus v. Seaboard Coast Line R.R. Co., 281 So. 2d 198, 200 (Fla. 1973), the Florida Supreme Court found that, “Where one violates a penal statute imposing upon him a duty designed to protect another, he is negligent as a matter of law, therefore, responsible for such damage as is proximately caused by his negligence.”  In deJesus, the court recognized a cause of action in negligence when that defendant breached the duty set out in a penal statute requiring the protection of the public from railroad trains (Fla. Stat. §357.08).

Likewise, the court in Abril v. Dept. of Corrections, 884 So. 2d 206 (Fla. 2nd DCA 2004) found that a private cause of action existed for the negligent breach of a duty set out in a penal statute requiring the confidentiality of HIV testing results (Fla. Stat. §381.004).  Further, in Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002), the Florida Supreme Court again found a cause of action in negligence existed for the violation of a duty contained in a statute requiring confidentiality (Fla. Stat. §491.0147).  Once again, in Golden Shoreline Limited Partnership v. McGowan, 787 So. 2d 109, 110 (Fla. 2nd DCA 2001), the court found that a civil action for negligence existed for the violation of a duty set out in a statute regarding elevator maintenance (Fla. Stat. §399.02(5)(b)).  Finally, in Newsome v. Haffner, 710 So. 2d 184, 186 (Fla. 1st DCA 1998), the court found that a civil cause of action existed under a duty set out in a penal social host statute (Fla. Stat. §856.015).

In this case, F.S. Sec. 440.102(5) clearly provides “Employee Protection” by its plain terms – it’s even its title.  That is a duty imposed on employers by the Florida legislature, specifically to protect employees.  Therefore, pursuant to deJesus, an employer’s violation of that duty makes it negligent as a matter of law and “responsible for such damage as is proximately caused by his negligence.”  Thus, as in deJesus, the only method employees have to remedy a breach of F.S. Sec. 440.102(5)(k) is via a private cause of action because there is no administrative remedies or enforcement body to remedy such an employer’s violation in their duty.

V. As alleged in Count II of Plaintiff’s Complaint,

statutory obligations can give rise to third party claims.

      Further, even when no cause of action is created by a statute, statutory obligations can produce third-party beneficiary claims.  See Electrostim Med. Servs. v. Aetna Life Ins. Co., 2007 U.S. Dist. LEXIS 9857, Case No. 8:06-cv-14-T-24TBM (M.D. Fla. Feb. 13, 2007) (although no cause of action created by The Health Maintenance Organization Act, plaintiff was not prevented from bringing a third-party beneficiary claim based on the obligations created by the Act).  The Electrostim Med. Servs. court noted as follows:

The HMO Act does not expressly authorize a private cause of action to enforce its provisions. However, . . . this does not `preclude the right to bring a common law . . . claim based upon the same allegations’. For example, in Foundation Health, the Florida Supreme Court ruled that the statutory provisions of the Act regarding prompt payments could be incorporated into contracts between the health maintenance organization and the subscriber, such that providers, like Plaintiff, may sue for breach of contract.


(citations omitted). Thus, even when a statute does not expressly authorize a private cause of action, that does not preclude a right to bring a common law action based on the same allegation (as Plaintiff has done in Count II).

Here, employers who voluntarily take the benefits of the Drug Free Workplace act obtain a discount on their workers’ compensation insurance based on its compliance with the Act.  Thus, in exchange for their voluntary agreement to comply with the Act, employers elect to subject themselves to the obligations imposed in F.S. Sec. 440.102(5).

F.S. Sec. 440.102(5)(k) is clear that employees (third parties) are provided benefits (protections from certain types of discharge, related to drug testing).  Defendant’s argument at page 9 of its Motion that the “intent of the FDFWA is  not to benefit Plaintiff and other employees” makes no account for the plain language of F.S. Sec. 440.102(5)(k).  It even fails to take into account the Title to F.S. Sec. 440.102(5) – “PROCEDURES AND EMPLOYEE PROTECTION.”  Clearly, the statute intended to (and does) convey protections to employees.

Thus, the employee is a third party beneficiary of the employer’s voluntary acceptance of the benefits of the Act. Permitting the Defendant to take the benefits of the Act (via reduced workers’ compensation insurance) but allowing it to ignore its obligations to the Plaintiff thereunder would violate the Florida legislature’s intent to provide protections.  As such, even if F.S. Sec. 440.102(5) does not confer a private cause of action on the Plaintiff, he is not prevented from bringing a third-party beneficiary claim based on the obligations created by the Act.

WHEREFORE, Plaintiff requests that Defendant’s Motion to Dismiss be denied.  Moreover, solely because Defendant requested an award of attorneys’ fees (although no basis for the same was stated), Plaintiff makes that same request in turn.[2]


Respectfully submitted,


Attorneys for Plaintiff

855 E. Univ. Ave.

Gainesville, FL 32601

(352) 374-0878






      I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Court’s ECF system which has sent an electronic copy thereof to counsel for the Defendant on this August 9, 2012.


By:     _/s/ Michael Massey________




[1] F.S. 440.102(5)(k) is similar to other employment statutes, such as Fla. Stat. Sec. 760.10(1)(a) which makes it unlawful “To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual” because of certain protected status.

[2]  Moreover, Plaintiff disputes a good faith conference was completed by the Defendant’s counsel other than the Defendant’s counsel sending two emails to the undersigned.  In response these two emails the undersigned requested any “cases that say there’s no such cause of action IF an employer implemented the FDWA?”; however, no case citations were provided and the next communication on the matter the undersigned received was the Defendant’s Motion to Dismiss.

Massey & Duffy

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