In a recent decision, the First District Court of Appeal in Florida addressed a significant issue under Florida's Whistleblower's Act (FWA) in the case of Clint Shannon Gessner v. Southern Company and Gulf Power Company. The court affirmed the summary judgment in favor of the employers, holding that to be protected under the FWA, an employee must show that they objected to or refused to participate in an actual violation of a law, rule, or regulation by their employer. This decision aligns with the Second District's ruling in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d. DCA 2015), and certifies a conflict with the Fourth District's decision in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013).
The case arose when Gessner, a former employee of Gulf Power Company, claimed he was terminated in retaliation for objecting to practices he believed violated state or federal laws. The trial court ruled that under section 448.102(3) of the FWA, Gessner needed to prove an actual violation by the employer, not just a good faith, reasonable belief of a violation. This interpretation follows the Second District's approach, which requires concrete proof of unlawful conduct, as opposed to the Fourth District's more lenient standard that an employee's reasonable belief suffices.
The First District quoted extensively from the Second District's decision in Kearns and emphasized the importance of adhering to the plain language of the statute, which requires an actual violation for whistleblower protection in the private sector. The First District criticized the Fourth District's decision in Aery for extended or adding words to the statute that were not placed there by the Florida Legislature. By certifying conflict with the Fourth District, the First District has set the stage for further judicial review, which may ultimately clarify the standard for whistleblower claims under Florida law.
For employers and employees alike, this decision underscores the need for clear evidence of statutory violations in whistleblower cases. Employers must be aware of the legal standards applicable in their jurisdiction, while employees should understand the evidentiary requirements needed to establish a protected activity under the FWA. As the legal landscape evolves, staying informed about these developments is crucial for navigating whistleblower disputes effectively.
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