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Florida Workers’ Whistles Are Not Silenced

Labor and Employment Law

Private-sector employers and employees have been awaiting the Florida Supreme Court’s interpretation of the written notice provisions contained in Florida’s Whistle Blower’s Act, F.S. §§448.101–448.105 (1995). On January 13, 2000, the Florida Supreme Court held in The Golf Channel v. Jenkins, No. SC93426, 25 Fla. L. Weekly S31, that an employee does not have to provide his or her employer with written notice of the employer’s unlawful activity in order to maintain a cause of action for retaliatory job action when the employee’s complaint is predicated on assistance, §448.102(2), or objection, §448. 102(3), whistleblowing.

Wherein Lay the Rub

Under the Whistle Blower’s Act, an employer is liable to its employee for “retaliatory personnel action”1 taken against the employee based on the employee’s participation in any one of three types of protected whistle-blowing conduct.2 F. S. §448.102. The three types of protected whistle-blowing conduct involve:

• (Disclosure) §448.102(1) : An employee who discloses or threatens to disclose the employer’s unlawful activity to a government agency (however, an employee is not protected in this instance if he or she did not provide the employer with written notice and an opportunity to cure before the disclosure takes place);

• (Assistance) §448.102(2) : An employee who assists an agency with an ongoing investigation of the employer’s alleged unlawful activity;

• (Objection) §448.102(3) : An employee who objects or refuses to participate in the employer’s unlawful activity.

In Golf Channel, employee Jenkins filed an objection-based whistle-blower claim under §448.102(3). He alleged that his firing was in retaliation for his verbal objections to supervisors of Golf Channel personnel’s unlawful activities, namely sexual conduct committed in the workplace, fraud on vendors, and acts of plagiarism and falsified budget reports. Jenkins’ complaint was dismissed by the trial court for Jenkins’ failure to give Golf Channel written notice of his objections. The Fifth District reversed, holding that written notice is not a prerequisite to maintaining assistance or objection-based whistle-blower claims; it is a prerequisite of disclosure whistle-blower actions only. Jenkins v. Golf Channel, 714 So. 2d 558 (Fla. 5th DCA 1998).

As stated above, §448.102 governs the types of claims which the act recognizes. Subsection 448.102(1) governing disclosure whistleblowing contains a written notice and opportunity to cure condition. The condition reads, “[h]owever, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.” F.S. §448.102(1) (emphasis added).

Section 448.103 of the act, captioned “Employee’s remedy; relief,” governs the procedural process and available remedies. Section 448.103(1) sets forth a limitations provision, a venue provision, and the debated written notice requirement. Section 448.103(1)(c) provides:

An employee may not recover in any action brought pursuant to this subsection if he failed to notify the employer about the illegal activity, policy, or practice as required by Sec. 448.102(1) or if the retaliatory personnel action was predicated upon a ground other than the employee’s exercise of a right protected by this act.” §448.103(1)(c) (emphasis added).

Employers have argued that the act unambiguously3 requires employees to give their employers written notice and an opportunity to cure the alleged unlawful activity in order to maintain any type of whistle-blower claim.4 Florida employees have argued that §448.103(1)(c) creates an ambiguity in the act, warranting judicial interpretation that the written notice requirement applies to disclosure claims only.

The Florida Supreme Court accepted jurisdiction in Golf Channel based upon several district courts of appeal’s conflicting interpretations of the act’s written notice requirement. The Fifth District in Jenkins v. Golf Channel agreed with the Third Circuit’s conclusion in Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d DCA 1995),
that the act only required written notice in disclosure claims; whereas the Second District has maintained that written notice is due the employer in order to bring any type of whistle-blower claim. Potomac Systems Engineering, Inc. v. Deering, 683 So. 2d 180 (Fla. 2d DCA 1996);5 and see citing cases, McEowen v. Jones Chem., Inc., 745 So. 2d 991 (Fla. 2d DCA 1999); Judd v. Englewood Community Hosp., 739 So. 2d 627 (Fla. 2d DCA 1999). The Golf Channel decision disapproves of the Second District’s Deering, McEowen, and Judd opinions.

Golf Channel agrees with Baiton6 and the Fifth District below that the claim and remedy sections of the act create an ambiguity in the statute and a need to resort to statutory construction principles. Applying such principles, the act’s express language coupled with its overall remedial purpose and the purpose behind the written notice requirement renders written notice applicable to §448.102(1) disclosure whistle-blower claims only.

The court finds that although §448.102 plainly protects three types of whistle-blowing activity and conditions only disclosure whistle-blowing with a written notice requirement,7 & #x201c;subsection448.10 (1)(c) creates an ambiguity requiring statutory construction as to whether that written notice requirement extends to all whistle-blower claims.” Employing the first tenet of statutory construction, that legislative intent must be determined primarily from the statutory language used, the court read in pari materia the “Prohibitions” section (§448.102) together with the “Employee’s Remedy” section (§448.103). The court read the act consistent with giving effect to all of its parts, and not in a manner so as to nullify8 the intended protection of two types of whistle-blowing activity.9 the court reiterated that Florida’s Whistle Blower Act10 is a remedial law, designed to give private remedies to persons injured by acts declared wrongful. See Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 423 (Fla. 1994). As a remedial law, the court acknowledged that it was required to construe the act liberally in favor of granting access to the statutorily prescribed remedies. See Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992).

The court ruled that the statutory delineation of different instances of protected whistle-blowing conduct, in light of the purposes of the act and its written notice requirement, speaks against application of a written notice requirement to all protected whistle-blowing activity. The general purpose of the act is to prevent retaliatory job action against an employee who engages in protected whistle-blowing conduct. F.S. §§448.101–448.105; Arrow Air, 645 So. 2d at 423. The purpose behind the notice requirement is to afford an employer an opportunity to cure its wrong internally and to avoid unreasonable impairment to its reputation, and to preserve the employment relationship between the employer and employee. Potomac Systems, 683 So. 2d at 182.

The court found that written notice in disclosure whistle-blowing instances serves a valid purpose. It protects the private employer from potential degradation of its business by giving it an opportunity to cure its unlawful conduct when such opportunity to cure has not passed. Requiring written notice to the employer in disclosure situations does make sense. Why? Time is on the employee’s side. Disclosure whistleblowing contemplates a deliberate, written statement to be provided to an investigative agency by the employee. It contemplates alleged unlawful conduct of the employer which is not yet under investigative review. It balances the rights of the employer with the protections afforded the employee by granting the employer the opportunity to cure any unlawful conduct and preserve a yet uncompromised employment relationship with the employee, by not taking away or harming the employee’s job.

Requiring written notice in assistance whistle-blowing instances does not serve the purposes of the notice requirement, the court ruled. Why? In such instances, an investigation or hearing by an appropriate entity, outside the control of the employer or employee, “is already ongoing through no action of the employee.” The employer’s opportunity to cure has passed. The court likewise found that objection whistleblowing requires no written notice. Why? This protected conduct foresees the occasions when employees will be immediately dismissed or prevented from giving written notice. The plain language used in this subsection, “objected to or refused to participate” begets one logical read, that the employer already has notice of its illegal act, otherwise there is nothing to serve as the basis for an objection or refusal to participate.

Now, in light of Golf Channel, the employee with a good reason to truthfully whistle to an investigating agency or company manager about unlawful activity is legally protected from retaliatory job action, as intended by the legislature.

Golf Channel ’s Implications

Will Golf Channel ’s limited application of the act’s written notice requirement to disclosure whistle-blower claims flood the courts with more employment litigation? The act as written and practical considerations relative to the filing of employee whistle-blower actions suggest that any such fear is hyperbole. The act does not provide a remedy to an employee with any kind of gripe against his or her boss, nor vitiate the at-will employment doctrine currently intact in Florida.11 the act protects whistle-blowing activities of the employee that are based on the employer’s violation13 of a “law, rule, or regulation.” F.S. §§448.101(4), 448.102. The phrase “in violation of a law, rule, or regulation” does not confer protection to an employee who complains about business practices which may be morally objectionable, but are not illegal. See, e.g., Schultz v. Tampa Elec. Co., 704 So. 2d 605 (Fla. 2d DCA 1997); Pamela Forrester v. John H. Phipps, Inc. d/b/a WCTV-Channel 6, 643 So. 2d 1109 (Fla. 1st DCA 1994).
The act further requires that an employee’s claimed “retaliatory personnel action” is causally related to his or her protected whistle-blowing activity. See F.S. §448.103(1)(c) (“An employee may not recover in any action. . . if the retaliatory personnel action was predicated upon a ground other than the employee’s exercise of a right protected by the act.”). Accordingly, the act itself contains built-in safeguards against a flood of specious litigation, even a speculative flood.12

Moreover, this author is optimistic that most companies doing business in Florida do not engage in unlawful activities nor request that their employees do so in order to keep their jobs. So, any flood of whistle-blower claims is unlikely. If given a choice, Florida workers who encounter illegal activities of their employers and refuse to perpetuate those illegalities, or who simply tell the truth to investigating agencies, would more likely than not prefer an underailed career and an expected paycheck in return for good, loyal service to an uncertain, expensive lawsuit with a potential black-mark effect on future employment opportunities.

The Golf Channel opinion should not be viewed as a signal to Florida employers to look out for claims. Rather, it should be seen as a signal to companies to conduct lawful business in Florida. Already, in response to good corporate policy and federal and state equal employment opportunity laws, companies here spend time and money hiring and training their workforce. Golf Channel simply tells businesses to value employees who assist an investigating agency or who internally expose corporate wrongdoing. A company that is committed to conducting lawful business trains its supervisors to investigate and dismiss from its ranks employees who commit or direct the commission of illegal business.

Florida’s private sector Whistle Blower Act carves out job protection for employees under a defined set of circumstances. This is job protection which Florida citizens would not have otherwise. In light of Golf Channel, employees who engage in assistance or objection whistle- blowing are now truly protected from retaliatory job action for their claims will not be thwarted by a written notice obstacle with illusory purpose. In enacting this law, the legislature intended Florida employees’ verbal whistles, under assistance and objection circumstances, to be worth a thousand written words, and Golf Channel refused to silence them.

1 & #x201c;Retaliatory personnel action” is defined as the discharge, suspension, demotion, or any other adverse employment action taken in the terms and conditions of employment. Fla. Stat. §448.101(5).
2 Fla. Stat. §448.102, captioned “Prohibitions,” protects the employee who: “(1) Disclosed or threatened to disclose to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice,” §448.102(1);

“(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing or inquiry into an alleged violation of a law, rule, or regulation by the employer,” §448.102(2);

“(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a “law, rule, or regulation,” §448.102(3).
3 A statute is unambiguous only if it is clear and unmistakable and is “[in]capable of being construed in two different ways by reasonably well-informed people.” 2A Sutherland on Statutory Construction §46.04, p. 99 (5th ed. 1992). A plain and unambiguous statute renders judicial interpretation unnecessary.
4 the act contains no mention whatsoever as to when notice is required. Had the court found the notice requirement extended to all whistle-blower claims, courts would likely have had to wrestle with the question: When is written notice due? Is notice required pre-suit while the employee is still employed or after a demotion and pre-discharge or after discharge and pre-suit or at some other time? Would courts allow claims when providing written notice is impossible or futile? For example, consider Jenkins who alleged that his immediate supervisor instructed him not to file a written report. Consider the employee who is called in by the investigating agency to provide information or to testify in court. When the FBI or Florida Department of Revenue shows up at the employee’s home or work site with questions about what happened at work, she can not be expected to stop the questioning long enough to send her boss a warning letter nor is she in a position to stop a trial during her testimony and send the boss a note.
5 Like employees Jenkins and Baiton, Deering claimed his firing was due to his objection-based whistleblowing. He alleged that he verbally refused to participate in mischarging, misreporting and the unauthorized use of government equipment.
6 Baiton alleged that he was fired for verbally refusing to give false testimony in a coworker’s action against Carnival Cruise Lines.
7 Golf Channel noted the statutory numbering used. The hierarchical numbering of statutes was first mentioned by the Baiton court at footnote 5: (“The subdivisions of the Florida Statutes are chapter, section, subsection, paragraph, and subparagraph. The subdivisions relevant here are: Chapter 448, Section 448.102, Subsection 448.102(1)”). In light of this established statutory hierarchy, the Baiton Court noted that within the claim portion of the statute, only the statutory subsection pertaining to disclosure whistleblowing was excepted from the act’s protection if the employee did not first give written notice to the employer. Baiton, 661 So. 2d at 316.

Stated another way, disclosure is one type of claim, and it alone is fettered with a notice requirement.
Fla. Stat. §448.102(1)(written notice applies to “this subsection.”). The statutorily subservient subsection of §448.103(1)(c) does not fetter the employee’s other whistle-blowing claims, it simply fetters the employee’s remedy consistent with the already fettered disclosure claim. The Baiton court recognized this, stating “[s]imilarly, if the employee brings a lawsuit against the employer alleging a violation of subsection 448.102(1), the employee may not recover ‘if he failed to notify the employer about the illegal activity, policy, or practice as required by s. 448.102(1).’” Id. at 316 (emphasis in original).
8 the court further recognized that the placement of the notice requirement of §448.012(1) in the remedy portion of the act operated as a limitation on the remedial act’s general protections. As such, §448.103(1)(c) was narrowly construed. Golf Channel, 25 Fla. L. Weekly S31 , citing Samara Dev. Corp. v. Marlow, 556 So.2d 1097,1100 (Fla. 1990); Farley v. Collins, 146 So. 2d 366, 368 (Fla. 1962).
9 All parts of a statute must be read together in order to achieve a consistent whole. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla. 1992).
10 Florida’s whistle-blower laws were “designed to encourage the elimination of public [and private] corruption by protecting public and [private] employees who ‘blow the whistle.’” Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). In keeping with its intent to protect Florida workers’ jobs from retaliatory acts in situations which impact the public’s interest, the Florida Legislature, in 1986, enacted §§112.3187 through 112.31895, the public sector “Whistle Blower’s Act.” On June 7, 1991, whistle-blowing protection was extended to private sector employees.
Fla. Stat. §§ 448.101–448.105.

In Case Number 94,926, the Florida Supreme Court is presently reviewing Irven v. Dept’ of HRS, 724 So. 2d 698 (Fla. 2d D.C.A. 1999),
wherein it will determine the scope of protected whistle-blowing acts under the public sector act, §112.3187 (5)(a) and (b).
11 virtue of Florida’s common law employment-at-will doctrine, employers had and continue to have discretion in many of their employment decisions. Pursuant to the at-will doctrine, an employer can fire an employee for any reason or no reason at all, without incurring liability. DeMarco v. Publix Super Markets, Inc., 384 So. 2d 1253 (Fla. 1980). Before the enactment of the private Whistle Blower Act, an employee could be legally fired for complying with the law against his or her employer’s wishes, or refusing to comply with the employer’s directive to break the law. In the interests of public policy, in addition to the Whistle Blower Act, the Florida Legislature protects private sector employees from retaliatory job action predicated on an employee’s: opposition to discriminatory acts and/or assistance with an investigation of or testimony in any hearing on the employers’ discriminatory acts,
Fla. Stat. §760.10(7)(Florida Civil Rights Act of 1991); filing of workers’ compensation claims, Fla. Stat. §440.205; service on a jury, Fla. Stat. §40.271; membership in a labor union, Fla. Stat. §447.09; exercise of rights under Florida’s Occupational Safety and Health Act, Fla. Stat. §442.116; voting or nonvoting, Fla. Stat. §104.081; and testimony given or absence from employment due to testimony being given, under subpoena, in a judicial proceeding, Fla. Stat. §92.57.
12 None of these laws impose a pre-suit written notice requirement on the employee. It is illogical to think that the legislature intended to impose more obstacles in the path of an employee attempting to obtain a remedy under the Whistleblower Act for blowing the whistle on the employer who harms the public with its criminal acts in violation of Florida’s Air and Water Pollution Control Act than the employer who harms its employees’ health under Florida’s Occupational Safety and Health Act. Compare Hartley v. Ocean Reef Club, Inc., 4 76 So. 2d at 1327 (Fla. 3d D.C.A. 1985) with Fla. Stat . §§ 448.102 and 448.103, and 442.116.
13 See Sussan v. Nova Southeastern Univ., 723 So. 2d 933 (4th D.C.A. 1999) (report of stealing by coworkers was not protected whistle-blowing activity as the alleged wrongdoing was not on the part of the university or anyone acting within the legitimate scope of their employment nor did the university ratify the employees’ illegal conduct).

Catherine A. Kyres has her own law firm which primarily represents employees in employment disputes throughout Florida. As a certified circuit court mediator, she also mediates employment disputes. She co-authored Florida NELA’s amicus brief in Golf Channel. She received her J.D., magna cum laude, from New England Law School in 1991, and B.A. in psychology from Simmons College, Boston.

This column is submitted on behalf of the Labor and Employment Law Section, Robert J. Sniffen, chair, and F. Damon Kitchen, editor.

Labor and Employment Law