Florida Supreme Court Clarifies Standard for Private Sector Whistleblower’s Act Claims

Resolving a longstanding split among Florida appellate courts, the Florida Supreme Court has held that employees bringing retaliation claims under the private sector Whistleblower’s Act must prove that the challenged activity, policy, or practice of the employer is, by definition, in violation of law, and not merely that they had a good-faith reasonable belief that the employer violated the law.

The decision is expected to narrow the scope of viable whistleblower retaliation claims under Florida law.

BACKGROUND

The dispute centers on section 448.102(3), Florida Statutes, which prohibits retaliatory personnel actions against an employee who objects to or refuses to participate in an employer activity, policy, or practice “which is in violation of a law, rule, or regulation.” Florida’s appellate courts have been divided on what employees must prove to prevail on a claim.

In the 2013 case Aery v. Wallace Lincoln-Mercury, LLC, the Fourth District Court of Appeal held that employees needed to show only that they had a good-faith, objectively reasonable belief that the employer’s conduct was illegal. The First, Second, and Fifth District Courts of Appeal disagreed, concluding that employees had to show that the employer had actually violated a law, rule, or regulation.

After the First District certified conflict with Aery in Gessner v. Southern Company, the Florida Supreme Court accepted jurisdiction to resolve the conflict.

ANALYSIS OF THE RULING

The Florida Supreme Court held that to prevail on a retaliation claim under section 448.102(3) “an employee must establish by a preponderance of the evidence that the employer’s activity, policy, or practice is in violation of law—that is, it constitutes a violation of the law—not that the employer has already in fact violated the law, nor that the employee reasonably believed the employer violated the law.” 

The Florida Supreme Court drew two conclusions from the statute’s text. First, the court determined that, contrary to the opinions of the First, Second, and Fifth Districts, an employee does not need to “show an actual violation” in the sense that an employee need not “prove that the employer is, at the moment the employee is discharged, in the act of violating the law, that the employer has already violated the law, or that any authority has found the employer to have done so.”

Instead, the employee’s burden is to “establish that the employer’s activity, policy, or practice to which the employee objected is, by definition, in violation of law,” even if the violation has not occurred yet or if there had not been an adjudication of illegality.

Second, the court rejected the “‘good faith, objectively reasonable’ belief” standard, observing that the statute’s text does not reference “the employee’s subjective state of mind.”

In applying these principles, the Florida Supreme Court affirmed final summary judgment against the employee because, instead of showing that he objected to an activity, policy, or practice that “by definition” violated a law, rule, or regulation, he argued merely that “he believed [that his alleged] safety concerns were violations of the law.”

IMPLICATIONS FOR EMPLOYERS

The Florida Supreme Court’s Gessner decision provides greater clarity and predictability for private employers facing whistleblower claims under the Act. The court’s disapproval of the lower standard that had required only a good-faith reasonable belief of a violation will help private employers defend against whistleblower claims that are premised on conduct that is not by definition a violation of a law, rule, or regulation.

Employers should review their internal reporting and compliance procedures to ensure that allegations of legal violations are handled with appropriate investigation and documentation. The clarified standard may also influence settlement strategies, litigation risk assessments, and the drafting of employment policies related to whistleblower protections.