By: Abhishek Ramaswami on behalf of Cadogan Law | November 25, 2024 | Employment Law
On November 20, 2024, Florida’s First District Court of Appeals issued a decision in Clint Shannon Gessner v. Southern Company and Gulf Power Company that heightened the standard that plaintiffs must prove in claims under Florida’s Private Whistleblower Act (“FPWA”). By way of brief background, the FPWA, in relevant part, prohibits an employer from taking a “retaliatory personnel action against an employee because the employee has … [o]bjected to, or refused to participate in,” conduct that violates a law, rule, or regulation. Fla. Stat. § 448.102(3). Thus, the elements of an FPWA claim are: (1) protected activity, (2) a retaliatory personnel action, and (3) a causal connection between the two.
The First District in Gessner held that in order for a plaintiff to successfully prove a violation of the FWPA, they must establish that they objected to or refused to participate in an actual violation of a law, rule, or regulation, rather than an action they believed to be a violation. The Gessner decision is aligned with Florida’s Second District Court of Appeals holding in Kearns v. Farmer Acquisition Co., which similarly sided with the “actual violation” standard.
However, this decision conflicts with decisions in other Florida Appellate Courts, such as the Fourth District in Aery v. Wallace Lincoln-Mercury, LLC. In Aery, the Fourth District held that “all that is required is that the “employee have a good faith, objectively reasonable belief that h[is] activity is protected by the statute.” In granting final summary judgment for the defendant and rejecting this Fourth District’s lenient “objective belief” standard, the Gessner court held:
“We agree with the Second District’s reasoning in Kearns and hold that a plaintiff in a private sector FWA action brought pursuant to section 448.102(3) must establish that he or she objected to, or refused to participate in, an activity, policy, or practice of the employer that is an actual violation of a law, rule, or regulation. In so holding, we are guided first and foremost by the plain language of section 448.102(3). A statute is to be given its plain and obvious meaning when its language is unambiguous.”
The Plaintiff in Gessner objected to safety violations which he believed were a violation of a law, rule and regulation and relied on the Fourth District in Aery to support his claims. However, the First District in Gessner applied literal statutory interpretation of 448.102(3) and required the plaintiff to show his employer committed an actual violation of a law, rule, or regulation, which he failed to do. An objective belief of a violation, however sincere, was insufficient under the plain language of the statute.
There now remains a conflict between the Second District and the Fourth/First Districts on this issue, likely necessitating the Florida Supreme Court to undertake review and provide clarity on this issue in the future. Employers should be sure to monitor developments on this issue closely in 2025.
Key Takeaways for Employers:
This ruling is clearly another positive development for employers in Florida, as it tilts the balance in favor of an employee proving an actual violation of laws, rules, or regulations. However, employers must still be sure to thoroughly investigate any and all reporting of claimed misconduct and act swiftly and appropriately. It is also a reminder for employers to stay abreast of all relevant laws and regulations in their jurisdiction and profession to ensure ongoing compliance. Employers should ensure that their policies, procedures, and codes of conduct are continually updated and importantly – that all workers, especially those in management or supervisory roles, strictly follow their own policies. Remember, the best whistleblowing or retaliation cases are the ones that are never brought to begin with.
We are happy to assist you if you have any questions about compliance with Florida’s whistleblowing and retaliation laws, or any other employment law or business matter. Please visit us at cadoganlaw.com and contact us to schedule a free consultation.
Biography: Abhishek Ramaswami is an Associate Attorney at Cadogan Law, practicing in all aspects of Labor and Employment Law from the agency level through trial, as well as Business Litigation. He is licensed to practice law in Florida, New York, and New Jersey, with pending licensure in Illinois. In his spare time, he enjoys sports, cooking, the outdoors, and traveling with his wife.