CENTRAL FLORIDA WHISTLEBLOWER LAWYERS BASED IN OCALA, FLORIDA
Employees who learn that their employers are engaged in unlawful activities are confronted with the difficult decision of whether to “blow the whistle” by reporting, objecting to, or refusing to participate in their employers illegal actions and place their employment at risk. Because whistleblowers place their employment at risk, federal and Florida law protect employees from retaliation when they engage in whistleblower activity. Unlawful retaliation occurs when an employer subjects an employee to an adverse employment action in retaliation for having engaged in statutorily protected activity under a whistleblower law. The purpose of the federal and Florida whistleblower laws is to encourage employees to report, object to, or refuse to assist employers who violate the law by protecting them from retaliation for having done so. Having represented employees victimized by retaliation for more than 15 years, our Central Florida whistleblower attorneys are dedicated to protecting and vindicating the rights of employees who are punished for “blowing the whistle” on their employers.
Florida Whistleblower Law
Under Florida law, the Private Sector Whistleblower Act; and the Public Sector Whistleblower Act are the primary whistleblower laws. The Private Sector Whistleblower Act covers employees who work in the private sector and are employed by any private individual, firm, partnership, institution, corporation, or association. The Public Sector Whistleblower Act covers employees who work for a Florida governmental agency. A Florida governmental agency includes: any state, county, local, or municipal government entity, whether executive, judicial, or legislative; any official, officer, department, division, bureau, commission, authority, or political subdivision therein; any public school, community college, or state university. The Public Sector Whistleblower Act also covers employees who work for an independent contractor which is engaged in any business and has entered into a contract with a Florida governmental agency. Both acts prevent a covered employer from taking adverse employment action against an employee for engaging in statutorily protected activity.
Florida’s Private Sector Whistleblower Act
Florida’s Private Sector Whistleblower Act makes it unlawful for employers to subject employees to an adverse employment action in retaliation for having engaged in statutorily protected activity under the Private Sector Whistleblower Act. As explained by the Florida Supreme Court in Arrow Air, Inc. v. Walsh, 645 So.2d 422 (Fla. 1994), the Private Sector Whistleblower Act is “designed to protect private employees who report or refuse to assist employers who violate laws enacted to protect the public.” An employee who has been retaliated against in violation of the Private Sector Whistleblower Act has a cause of action against his or her employer for damages, reinstatement, and injunctive relief.
Statutorily Protected Activity Under The Act
The Private Sector Whistleblower Act provides that employers are prohibited from taking adverse employment action against employees on the basis of three distinct types of statutorily protected activities. Under the Private Sector Whistleblower Act, an employee engages in statutorily protected activity when the employee:
* Discloses, or threatens to disclose, to a governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation, and brings the activity, policy, or practice to the attention of a supervisor or the employer in writing and affords the employer a reasonable opportunity to correct the activity, policy, or practice; or
* Provides information to, or testifies before, a governmental agency conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer; or
* Objects to, or refuses to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
When Written Notice Required
Under the second and third types of statutorily protected activity, an employee is not required to present a written complaint regarding the alleged violation of a law, rule, or regulation to a supervisor or the employer. In other words, the written notice and opportunity to cure requirements only apply to the first type of statutorily protected activity. In holding that an employee is not required to provide written notice to the employer under the second type of statutorily protected activity, the Florida Supreme Court in Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000) reasoned that “an employee may not be allowed to give the employer notice before being called in to testify before a ‘closed door’ investigation.” In holding that an employee is not required to provide written notice to the employer under the third type of statutorily protected activity, the Florida Supreme Court in Golf Channel reasoned that:
Consider an employee who is terminated on the spot by his supervisor for refusing to dump hazardous waste in a waterway. No opportunity is reasonably available to deliver the so-called required written notice in such a case.
What Is A Law, Rule, Or Regulation
Under the Private Sector Whistleblower Act, a “law, rule, or regulation” is any statute or ordinance adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business. Because many whistleblower claims involve an employer’s violation of the federal Occupational Safety and Health Act (OSHA), federal regulations enacted pursuant to OSHA to achieve safer and healthier working conditions are perhaps the most relied upon law, rule, or regulation applicable to an employer in the whistleblower context. In the whistleblower context, federal and Florida employment discrimination laws are applicable to an employer, including Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Americans With Disabilities Act, the Age Discrimination In Employment Act, the Equal Pay Act, and the Florida Civil Rights Act. The Fair Labor Standards Act, which requires employees to pay employees a minimum wage and overtime compensation, is also a law applicable to an employer in the whistleblower context.
Florida’s Public Sector Whistleblower Act
Florida’s Public Sector Whistleblower Act makes it unlawful for a governmental agency or an independent contractor to subject an employee to an adverse employment action in retaliation for having made a protected disclosure under the Public Sector Whistleblower Act. As explained by the Florida First District Court of Appeals in Lindamood v. Office of St. Atty., Ninth Judicial Circuit of Fla., 731 So.2d 829 (Fla. 5th DCA 1999), the purpose of the Public Sector Whistleblower Act “is to prevent state agencies from taking retaliatory action against employees who report agency violations of law or who disclose certain types of information.” As recognized by the U.S. District Court, Southern District of Florida in Burden v. City of Opa Locka, 2012 WL 4764592 (S.D. Fla. Oct. 7, 2012), the Public Sector Whistleblower Act “sets forth several specific requirements regarding the type of disclosures protected, to whom the disclosures must be made, who is protected, and the manner in which the remedy must be sought.”
The Types Of Disclosures Protected
There are three separate types of disclosures protected by the Public Sector Whistleblower Act. Under the first type of protected disclosure, an employee must disclose an actual or suspected violation of any law, rule, or regulation by a public employer or an independent contractor which creates a substantial and specific danger to the public’s health, safety, or welfare. Under the second type of protected disclosure, an employee must disclose acts or suspected acts of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or suspected or actual Medicaid fraud by a public employer or an independent contractor. Under the third type of protected disclosure, an employee must disclose gross neglect of duty committed by an employee or agent of a public employer or independent contractor.
To Whom Information Must Be Disclosed
In order to be considered a protected disclosure under the Public Sector Whistleblower Act, the employee must disclose the information to a particular agency or entity. For all disclosures other than those involving a local governmental entity, an employee must disclose the information to any agency or federal governmental entity having the authority to investigate, police, manage, or otherwise remedy the violation or act. For disclosures concerning a local governmental entity, an employee must disclose the information to a chief executive officer or other appropriate local official.
The Public Sector Whistleblower Act specifically extends protection to employees under a broad range of circumstances. Employees are protected when they:
* Disclose information on their own initiative in a written and signed complaint.
* Participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity.
* Refuse to participate in any adverse action prohibited by the Act.
* Initiate a complaint through the whistleblower’s hotline or the hotline of the Medicaid Fraud Control Unit of the Department of Legal Affairs.
* File any written complaint to their supervisory officials.
* Submit a complaint to the Chief Inspector General in the Executive Officer of the Governor.
* Submit a complaint to the employee designated as agency inspector.
* Submit a complaint to the Florida Commission on Human Relations.
Federal Whistleblower Laws
There are many federal laws which protect employees who engage in whistleblower activity. The False Claims Act protects employees from retaliation for reporting their employers who engage in activities which defraud the federal government. The Occupational Safety and Health Act (OSHA) makes it unlawful for employers to retaliate against employees who file any complaint with the U.S. Department of Labor relating to an employer’s violation of OSHA. The Railway Labor Act protects railroad employees who report safety concerns from retaliation and provides a mechanism for the resolution of claims against employee whistleblowers. The Fair Labor Standards Act (FLSA) prohibits employers from retaliating against employees who complain about not being paid minimum wage or overtime compensation, including a complaint by an employee to the U.S. Department of Labor about an employer’s failure to comply with the FLSA.
What Is An Adverse Employment Action
Whistleblower laws do not prohibit all retaliatory actions against employees who engage in whistleblower activity. Instead, they make illegal only those retaliatory actions that constitute an adverse employment action. Courts generally define an adverse employment action as one that materially affects the compensation, terms, conditions, or privileges of an employee’s employment. Among the employment actions that courts routinely hold constitute an adverse employment action include: failure to hire; demotion evidenced by a decrease in pay; failure to promote; reduction in pay; denial of job benefits; suspension without pay; layoff; and termination. Courts have also consistently held that an adverse employment action exists when an employer’s retaliatory action negatively affects an employee’s compensation. Depending on the circumstances of a particular case, actions that may constitute an adverse employment action include: disciplinary action; undeserved negative performance evaluation; increased workload; eliminating supervisory responsibilities; and transfer to a different position.
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As observed Florida Fifth District Court of Appeals in Kelder v. ACT Corp., 650 So.2d 647 (Fla. 5th DCA 1995) when analyzing the Public Sector Whistleblower Act, whistleblower laws are often “no models of clarity.” As a result, it can be difficult to know whether an employer’s actions are covered by a whistleblower law and what an employee must do to secure protection under a whistleblower law. For these reasons, it is important to seek the legal counsel of an experienced employment law attorney if you suspect your employer is engaging in unlawful activities. Our Central Florida whistleblower lawyers have extensive experience litigating whistleblower cases in state and federal court. Our employee rights law firm takes whistleblower cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your whistleblower case and fight for your employee rights.