Florida Whistleblower Act
The Florida Whistleblower Act (the “FWA”) is a law designed “to protect private employees who report or refuse to assist employers who violate laws enacted to protect the public.” Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994). The FWA provides employees with a cause of action against private-sector employers who take certain types of retaliatory personnel action. Before discussing the FWA it is important to brief discuss Florida’s at-will employment doctrine.
Employment in Florida
The employer-employee relationship is contractual in nature. See generally Jacobi v. Claude Nolan, Inc., 122 So. 2d 783 (Fla. 1st DCA 1960) (discussing express and implied employment contracts). Absent an express agreement or statutory provision to the contrary, the employment relationship is terminable at any time by either party, with or without cause. Iniguez v. American Hotel Register Co., 820 So. 3d 953, 955 (Fla. 3d DCA 2002); Liff v. City of Coca, 745 So. 2d 441 (Fla. 5th DCA 1999). Florida does not recognize a common law tort for wrongful termination. Bass v. Metro Dade Cnty. Dept. of Corrs. & Rehab., 798 So. 2d 835, 836 (Fla. 3d DCA 2001).
Thus, there must be an express exception to the at-will employment doctrine, such as a contractual or statutory provision, for an employee to maintain a cause of action for wrongful discharge. Laguerre v. Palm Beach Newspapers, Inc., 20 So. 3d 392, 395 (Fla. 4th DCA 2009). For example, the FWA is a statutory exception to Florida’s at-will employment doctrine. Schultz v. Tampa Elec. Co., 704 So. 2d 605, 605 (Fla. 2d DCA 1997).
Florida Whistleblower Act
The FWA prohibits an employer from taking any “retaliatory personnel action” against an employee who engages in three specific “statutorily protected activities.” See Fla. Stat. § 448.102.
The FWA’s first clause prohibits retaliation against an employee who discloses his or her employer’s activity, practice, or policy that violates a law, rule, or regulation. Fla. Stat. § 448.102(1). Subsection 1 claims are often referred to as “disclosure claims.” Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000).
The FWA’s second clause prohibits retaliation against an employee who participates in an investigation, hearing, or inquiry into an alleged violation of a rule, law, or regulation. Fla. Stat. § 448.102(2). The FWA’s third clause prohibits retaliation against an employee who “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Fla. Stat. § 448.102(3).
Importantly, “[a]n employee may not recover in any action brought pursuant to [the FWA] if he or she failed to notify the employer about the illegal activity, policy, or practice … or if the retaliatory personnel action was predicated upon a ground other than the employee’s exercise of a right protected by this act.” Fla. Stat. § 448.103(c).
Definitional Issues under the FWA
The FWA defines “law, rule, or regulation” to include “any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” Fla. Stat. § 448.101(4).
The FWA defines “retaliatory personnel action” to mean “the discharge, suspension, or demotion by an employer of an employee or any other adverse employment action taken by an employer against an employee in the terms and conditions of employment.” Fla. Stat. § 448.101(5).
Elements to Establish a Case of Retaliation
To establish a prima facie case of retaliation under the FWA, the employee must prove:
- he or she engaged in statutorily protected activity;
- he or she suffered an adverse employment action; and
- the statutorily protected activity caused the adverse employment action.
Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000).
“Once plaintiff establishes a prima facie case by proving only that the protected activity and the negative employment action are not completely unrelated, the burden shifts to the defendant to proffer a legitimate reason for the adverse action.” Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000). “The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the ‘legitimate’ reason is merely pretext for prohibited, retaliatory conduct.” Id.
Whether employee was terminated for objecting to or refusing to participate in employer’s improper practice is a question of fact for the jury. Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015). Whether causal link existed between employee’s termination and his refusal to take part in employer’s challenged practice is also a question of fact for the jury. Id.