Whistleblower and retaliation law is a subcategory of employment law, and is one of my main areas of interest and forms a substantial proportion of my practice. While the overwhelming majority of my work in this area is on behalf of employees, I often advise and defend employers as well.
With respect to attorney's fees, like other types of employment claims, I generally handle retaliation cases for employees on a contingency fee basis, and evaluate potential cases with that in mind
This page will set out some information about this area of law, and some basic advice for employees and employers who may be facing a situation where this law comes into play. Needless to say, in any situation where your legal rights are at issue, relying on general advice from a website is a bad idea. Every situation is different, and what might be a wise course of action in most cases could be disastrous in yours. Also, as indicated below, there are numerous laws relating to workplace retaliation. Determining the best course of action in your situation first requires you to correctly determine which law applies to your case. In some cases that may be obvious, often it will not. So, as with medicine, deciding on the proper treatment requires first getting a correct diagnosis. Leave it to a professional. Call a lawyer with experience in this area.
Florida Whistleblower and Retaliation laws
Some, but not all, Florida laws related to workplace retaliation and whistle-blowing are the following:
Private sector whistleblower statute . Florida Statutes §§448.101-448.105. Among other things, protects employees who object to, or refuse to participate in, an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
Public sector whistleblower act. Florida Statutes §§112.3187-112.31895. Protects government employees and employees of government contractors who object in specified ways to wrongdoing in the workplace. Protections and procedures vary depending on which level of government; state, local, etc.
Florida False Claims Act . Florida Statutes §§68.088-68.092. Florida's version of the federal False Claims Act. Allows a whistleblower to a keep a percentage of money recovered from a government vendor or contractor who has defrauded the government. Section 68.088 also protects employees who assist in bringing such claims from retaliation.
Florida Civil Rights Act anti-retaliation provisions . Florida Statutes §§760.10(7). This statute mirrors the anti-retaliation provisions under the Civil Rights Act of 1964 in protecting employees who oppose illegal discrimination or participate in proceedings under the civil rights laws. The Florida Civil Rights Act outlaws discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.
Witnesses summoned by subpoena. Florida Statutes §92.57. Protects persons who have been subpoenaed to testify in judicial proceedings from being fired "because of the nature of the person's testimony or because of absences from employment resulting from compliance with the subpoena." Employees do not receive the protection of this statute unless they testify pursuant to a subpoena.
Florida Minimum Wage Amendment . Florida Constitution, Article X, §24. Protects employees who make claims under the minimum wage amendment to the Florida Constitution.
Worker’s compensation retaliation . Florida Statutes §440.205. Protects workers who make workers compensation claims from retaliation.
Reporting child abuse. Florida Statutes §39.201. Protects employees, such as day care workers, who report child abuse.
Reporting abuse of vulnerable adults. Florida Statutes §415.1034. Protects employees, such as nursing home workers, who report abuse of the elderly, the mentally disabled, or other vulnerable adults.
Jurors. Florida Statutes §40.271. Protects jurors from termination due to jury service.
Federal law.
Federal law has a plethora of anti-retaliation laws. Generally these are enacted as part of broader laws to protect employees who report violations of those laws. Some, but by no means all, of the federal laws that contain anti-retaliation provisions are the Fair Labor Standards Act, Civil Rights Act of 1964, Age Discrimination in Employment Act, Americans with Disabilities Act, Family and Medical Leave Act, False Claims Act, Sarbanes-Oxley Act of 2002, Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Safe Drinking Water Act, Solid Waste Disposal Act, Toxic Substances Control Act, Aviation and Investment and Reform Act for the 21st Century, Railway Safety Labor Act, Occupational Safety and Health Act, and Whistleblower Protection Act. Also, the new financial reform act contains anti-retaliation provisions.
TIPS FOR EMPLOYEES - Some general ideas about how to handle employer and workplace misconduct:
Q. What should you do if you think your employer is breaking the law or engaging in wrongdoing, and you want to do something about it?
A. Don't say anything to your employer until you call a lawyer. This may sound like a cop-out, but the law is just too complicated, especially at this point in a case, for any employee to be confident they are maintaining maximum protection under the law. For example, under the Florida private sector whistleblower statute, if the employer is clearly breaking the law, and you report it to a government agency (such as the police) without first reporting it to the employer in writing and giving the employer an opportunity to correct the practice, you may not be protected (this is still an open question under the law). On the other hand, if the employee merely "objects or refuses to participate" in the illegal activity, the employee should be protected. Under the public sector whistleblower act, in some circumstances you may be required to complain in writing to specified officials, such as an inspector general. In other cases a complaint to your supervisor may be sufficient. The child abuse and vulnerable adult abuse statutes may only protect employees who complain through the official abuse hotlines. The loopholes are endless, and you can be sure that your employer, if faced with a claim, will find them if they apply.
Also, what you say when you object or complain may be critical. For example, there is no law that straightforwardly says an employer has to follow its own policies. So, when your employer is doing something you think is wrong, and you say, "but it's against company policy," you will probably not be protected from retaliation,even though your employer's employment policies assure you you will not be retaliated against. On the other hand, if the same conduct is also illegal, or you have good reason to think it's illegal, and say "you can't do that because it's illegal," you are much more likely to be protected. If you can say, "that's a violation of the Clean Air Act" or "that's a violation of the Florida fair debt collection statute," your protection is even that much clearer.
Q. What should you do if your employer asks you to do something you think is illegal?
A. If possible call a lawyer. If you're on the spot, you have to make a judgment call. Obviously, if you know it's a crime, or blatantly fraudulent, or could put someone in danger, don't do it, regardless of the outcome. If you're unsure, then try to get out of it without being insubordinate, or otherwise inviting retaliation, then call a lawyer to figure out where you stand and what your rights are. If you can't do that, then do your best. If it's an obscure, technical, or minor regulatory violation, the fact you engaged in it yourself once or twice while you were diligently trying to find out if it was illegal shouldn't hurt your legal position.
Q. What should you do if you think your employer is illegally retaliating against you?
A. Call a lawyer right away. (Do you see a pattern forming here?). Again, the simple fact is that there are so many laws, and so many loopholes, that the ways for you to blow your case even at this stage are pretty much endless. For example, the deadlines for you to take legal action vary from 30 days (OSHA) to 180 days (public whistleblower act) to 365 days (Florida Civil Rights Act) to two years (private sector whistleblower act) to 6 years (Florida and federal false claims acts). To add to the confusion, it's often far from obvious, and the rules vary from law to law, when the deadline periods begin to run. If you think you might want to pursue a claim, don't sit and wait.
And, how you take legal action varies from law to law. In some cases, you can file a lawsuit right away. In others, you have to complain to a government official - often a specific official, in a specific way - first.
Q. What should you do if your employer gives you the option to resign or be fired, and you think the termination is retaliatory?
A. Don't resign, or you may be jeopardizing your retaliation case and your unemployment compensation benefits. The trick here is that, if your employer admits you were forced to resign, it shouldn't affect your rights. But some employers, when they realize that your voluntary resignation saves them from legal liability, suddenly develop a different recollection of what happened. If you recognize you're being put in this situation, do what you can to get some time to think it over, and call a lawyer to help you think through the pros and cons. If it turns out you don't have a worthwhile claim, for retaliation or anything else, it may be worth it, for purposes of applying for jobs in the future, to be allowed to resign. On the other hand, if you have a good wrongful discharge claim against your employer, you may be blowing it if you fail to make a clear record that your termination is involuntary.
Q. What should I do if my employer is involved in a lawsuit and I am asked to testify?
A. Do everything you can, without getting fired, to have yourself subpoenaed. Florida Statutes §92.57 only protects witnesses who testify pursuant to subpoena. If you testify just based on your employer's asking you to, and your employer doesn't like what you say, you won't have protection under §92.57. Obviously, if you are being called to testify by the other side, or otherwise think your testimony will not please your employer, being subpoenaed is all the more important. If you find yourself in this situation, consult with a lawyer to help you accomplish this. We have ways.
Q. What should I do if I am pursuing a workers compensation claim and the employer, or work comp insurer, or even my own lawyer, asks me to sign a settlement agreement or release?
A. Consult an employment lawyer first . Too often settlement agreements and releases in work comp cases include releases of any and all other claims the employee has against the employer. If you have a good claim, you may be throwing it away by signing such a release. In particular, if you know you are going to a mediation of your work comp claim (where you are very likely to have to make an on-the-spot decision as to whether to sign papers to settle your claim), consult an employer lawyer ahead of time, or have your work comp attorney do so.
Q. What should I do if I am pursuing a workers compensation claim and the employer or work comp insurer is demanding I resign in exchange for settling my work comp case?
A. Consult an employment lawyer . This may be illegal, as a form of workers compensation retaliation under Florida Statutes §440.205. An employment lawyer may be able to help you maneuver in such a way that you can settle your work comp claim without losing your work comp retaliation claim.
TIPS FOR EMPLOYERS:
Q. What if an employee accuses me or the company of breaking the law?
A. DO NOT FIRE OR OTHERWISE DISCIPLINE THAT EMPLOYEE UNTIL YOU SPEAK TO A LAWYER. Employers, you have to accept this fact: anti-retaliation laws, by definition, require you, under certain circumstances, to tolerate what would otherwise amount to insubordination from your employee. And, the laws are so numerous and their provisions so varied no employer should rely on his own knowledge of whether those circumstances apply, especially when you're angry and about to make an on-the-spot decision. At least at that moment, you have to bite the bullet and accept the fact that you cannot fire an employee who accuses you of breaking the law, even if the employee is wrong, and even if the employee is obnoxious about it. Now, that's not to say the employee suddenly becomes untouchable. One complaint does not forever after insulate the employee from the consequences of future misconduct. In particular, if the employee is wrong about the charge of illegal conduct, and you explain to the employee why he or she is wrong, and the employee won't let it go, and becomes disruptive or refuses to do his or her job, there may come a point at which you are safe letting the employee go. But, once an employee has accused the employer of illegal conduct, or otherwise engaged in protected conduct, you're in a minefield, and you should get legal counsel to help guide you through it. This is a case-by-case judgment call that absolutely should be made only with the advice and close involvement of a lawyer with deep and broad knowledge in this area.
Q. What if my own employee testifies against the company in a lawsuit or other proceeding? What if the employee lied? What if the company got killed in court as a result?
A. DO NOT FIRE OR OTHERWISE DISCIPLINE THAT EMPLOYEE UNTIL YOU SPEAK TO A LAWYER. (Again, do you see a pattern forming here?) Setting aside whether it's right or wrong (as a lawyer, I have a moral problem with retaliating against witnesses, almost regardless of the circumstances), whether it's legal or illegal to fire an employee because of what the employee said in court depends on the circumstances. I know it feels like a betrayal. I understand that, often, some degree of incompetence can be tolerated, but disloyalty cannot. I understand you may be really, really angry. But just count to 10, play a round of golf, hit a punching bag, have a cocktail or some ice cream, whatever it takes to cool down and think clearly; then call a lawyer. You could seriously regret it if you don't.