The Florida Supreme Court recently resolved a long-standing conflict concerning the Florida Private Sector Whistleblower Act.
In Gessner v. Southern Company, the Court adopted a standard that is likely to make it more difficult for employees to prevail on certain whistleblower retaliation claims. Plaintiffs will be required to prove that the activity, policy, or practice they opposed was actually in violation of a law, rule, or regulation, rejecting a "reasonable belief" standard that had divided the state’s appellate courts.
The decision appears to be a victory for employers. And from a litigation perspective, it is.
But employers should resist the temptation to draw the wrong lesson from the decision. The Gessner decision does not diminish the importance of encouraging employees to report concerns, investigating complaints promptly, or maintaining strong anti-retaliation protections.
The Florida Private Sector Whistleblower Act prohibits employers from retaliating against employees in several circumstances. One provision, section 448.102(3), protects employees who object to or refuse to participate in an activity, policy, or practice of the employer that is "in violation of a law, rule, or regulation."
Florida courts disagreed about what that language meant.
Some courts held that an employee was protected if he or she had a good-faith, objectively reasonable belief that the employer's conduct violated the law. Other courts held that the employee had to...
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