Absent Investigation, Florida Private Sector Whistleblower Act “Retaliation” Claim Requires Actual Violation of Law, Rule, or Regulation

By: Michael S. Metta

The Florida Private Sector Whistleblower Act prohibits retaliatory action by private employers as against employees who provide information to, testify, or otherwise participate in an investigation before an appropriate governmental agency as to an employer’s legal violation. One type of conduct prohibited under this act is any retaliatory personnel action against an employee because the employee has: “Objected to, or refused to participate in, an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Fla. Stat. § 448.102(3). As to this third type of prohibited conduct, there is no requirement that the employee report the alleged illegal conduct to a government agency, or participate in any government investigation, before suing for retaliation following an adverse employment action.

However, Florida requires the employee pursuing a retaliation claim under this third type of prohibited conduct to plead and prove that the employer committed an “actual violation” of a “law, rule, or regulation.” Although there is a minority view that historically required a less stringent “objectively reasonable belief” standard for an employee to pursue this type of retaliation claim, there is significant authority that now requires the plaintiff to object to an activity, policy, or practice that “violated” the law, rule, or regulation. Accordingly, the minority view appears to be on the verge of extinction.

Recently, accepting the employer’s argument that the act required an actual violation of the statute, a Florida federal court granted a motion for summary judgment in favor of an employer because the employee failed to prove an actual legal violation. Pierre v. Aids Healthcare Foundation, Inc., 2020 U.S. Dist. LEXIS 202660 (S.D. Fla. Oct. 30, 2020). The court also rejected the employee’s claim under the minority view standard, reasoning that the employee did not have an objectively reasonable belief that a law, rule, or regulation was violated because she could neither specifically identify nor intelligently discuss the law, rule, or regulation violated. Florida law now seems to indicate that private employers should carefully review the language of the specific retaliation statute under which they are sued with experienced employment counsel to ascertain whether the conduct complained of is, in fact, actionable.

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