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Florida High Court Loosens Requirements for Whistleblowers

  • May 1, 2000

In previous editions of The Florida Employer, we have discussed significant cases involving Florida's Whistleblower Act, which prohibits private sector employers from taking retaliatory action against employees who "blow the whistle" on employers engaged in illegal activity. The Act prohibits retaliation against employees for three types of activities:

  1. disclosing illegal activity to the appropriate governmental agency ("disclosure claims"); 
  2. assisting any appropriate governmental agency regarding illegal activity ("assistance claims"); and
  3. objecting or refusing to participate in any illegal activity ("objection claims").

With regard to disclosure claims, there was never a question that written notice to the employer of the illegal activity is required prior to bring suit. However, courts throughout the state have disagreed about whether this same notice is required for assistance and objection claims. As we reported in the 1996 case of Baiton v. Carnival Cruise Lines, Inc., an employee was not required to provide written notice of his complaints to bring suit under the Act. In 1997 we reported in Potomac Engineering Systems v. Deering a different result from a court which held that the Act required employees to provide written notice to their employers in both assistance claims and objection claims. And, in 1999, we reported the case of Jenkins v. Golf Channel, in which yet another court following the Baiton decision did not require written notice in either assistance or objection claims.

To resolve the controversy, the Florida Supreme Court agreed to review the Jenkins case. Attorneys Catherine Rodriguez and Anthony Hall from the Orlando office of Jackson Lewis argued this issue on behalf of the employer before the court.

In January, the Florida Supreme Court issued its opinion. The court held that written notice is not required before bringing a lawsuit for either assistance claims or objection claims. Jenkins v. Golf Channel, 15 IER Cases 1574 (Fla. 2000).

Editor's Note

The Florida Supreme Court's decision in Jenkins essentially eviscerates Florida's employment at-will doctrine. Now, a disgruntled employee could claim to have mentioned a concern to another employee and to the surprise of the employer earn the right to file a lawsuit under the Whistle-blower Act. Even worse, under the court's ruling, an employee can file suit without proof of ever objecting to his employer's actions and without ever making a complaint. Clearly, the court's opinion could result in an explosion of litigation of these types of claims.

To avoid such litigation, we recommend employers adopt a clearly communicated written policy and complaint procedure for employees to bring to management's attention what they believe may be illegal activity or to provide assistance to inquiring governmental agencies. Through the policy and its implementation, employers should create an atmosphere where employees are encouraged to bring concerns about alleged illegal activity to the employer without the threat of reprisals. In instances where the employee actually complains, the employer should immediately document the complaint, investigate it, and respond to the employee in writing of its findings. These steps also should be followed in situations where the employer merely hears a rumor that an employee is complaining of illegal activity.

©2000 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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