Like many states, Florida generally has an “at-will” employment policy, meaning that employees can be fired at any time for any reason that doesn’t violate a statutory or constitutional protection. For whistleblowers, that statutory protection comes from the Florida Whistleblower’s Act, which protects public employees, or the Florida Private Sector Whistleblower Act, Fla. Stat. Ann. § 448.102, which protects whistleblowers who are employed in the private sector. This post focuses on the protections for whistleblowers in the private sector.
At first glance, the Florida Private Sector Whistleblower Act (the “Florida Act”) reads like many other anti-retaliation statutes, prohibiting retaliatory actions against an employee where the employee has:
- “disclosed, or threatened to disclose, to any appropriate governmental agency … an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation,” Fla. Stat. Ann. § 448.102(1),
- “provided information to, or testified before, any appropriate governmental agency, person or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer,” Fla. Stat. Ann. § 448.102(2); or
- “objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation,” Stat. Ann. § 448. 102(3).
The definition of retaliatory action is broad, reaching the types of adverse consequences that whistleblowers frequently face:
“discharge, suspension, or demotion … or any other adverse employment action taken by an employer against an employee in the terms and conditions of employment.” Fla. Stat. Ann. § 448. 101.
Unfortunately for people who have the courage and commitment to step forward to report wrongdoing, there are some significant restrictions in the protections provided in Florida. Initially, note that the first and third provisions only apply to employees who disclose an activity or refuse to participate in an activity “that is in violation of a law, rule, or regulation.” See, e.g., Kearns v. Farmer Acq. Co., 157 So. 3d 458, 465 (Fla. 2d Dist. App. 2015)(“we agree with the Employer that under section 448.102(3) Kearns must prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law”); Norman v. Bright Horizons Family Solutions, LLC, 2014 WL 272720, at *6 (M.D.Fla. Jan. 23, 2014).
But what if an employee reports or protests, in good faith, something that does not turn out to violate any law or regulation? What if the statute doesn’t apply to the situation that an employee observed, or perhaps the employer had an exemption of some type that the employee was not aware of? Limiting protection against retaliation to situations where it is ultimately determined that the employer actually violated a law puts a heavy burden on potential whistleblowers, since some violations are quite complicated or some facts might not be known to people who believe that what they observed was illegal. For that reason, in many other statutes, employees are protected as long as they acted in an objectively good faith belief that there was a violation of some statute, rule or regulation.
Fortunately, there have been some indications that courts will not impose that strict a reading on the Florida Act. For example, in Hernandez v. Motorola Mobility, Inc., 2013 WL 12086267, at *3 (S.D. Fla. Jan. 14, 2013), the court applied the widespread standard that a “party may establish that he was engaged in a statutorily-protected activity by showing that he opposed an unlawful practice of his employer’s that he reasonably believes had occurred.” If the employee meets that standard, the anti-retaliation protections kick in.
Also, the first provision of the Florida Act has a requirement that the protection applies only if the employee has “in writing, brought the activity, policy or practice to the attention of … the employer” and gave the employer “a reasonable opportunity to correct the activity, policy, or practice.” This totally rules out any protection for anonymous reporting that might later be discovered by the employer, or any attempt to have a governmental agency review and evaluate the allegations while the employees have some chance of protection. Instead, potential whistleblowers must first expose themselves to retaliation, intimidation or ostracization, seriously limiting the likelihood that anyone will step forward.
Additionally, various courts have determined that the “notice to the employer” requirement also applies to employees who object to or refuse to participate in an impermissible act (the third provision, above), based on a later section of the Act. See, e.g., Martin v. Honeywell, Inc., 1995 WL 868604 (M.D. Fla. 1995). These advance “notice to the employer” requirements have been rejected by the United States Congress and many other state legislatures because it is recognized that such requirements impose a serious damper on the willingness of potential whistleblowers to step forward. Notably, the Florida False Claims Act does not have its own non-retaliation provisions, as is the case under the federal and many state False Claims Acts. If whistleblower actions are brought by under both the federal and Florida False Claims Acts, the federal protections will come into play. See 31 U.S.C. §3730(h).
Reporting suspected fraud or attempting to avoid committing such fraud during your employment can be a tricky business. Consulting an experienced whistleblower lawyer early in the game is the best way to protect yourself.
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