EMPLOYMENT LAW: FLORIDA’S WHISTLEBLOWER ACT

Florida’s private employer whistleblower act was enacted to protect employees from retaliation when they object to, refuse to participate in, or report certain unlawful or allegedly activities. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience in successfully defending employers accused of retaliation.

In Juarez v. New Branch Corp., 67 So. 3d 1159 (Fla. 3d DCA 2011), Florida’s Third District Court of Appeal was confronted with the issue of whether an employee was unlawfully terminated because she was a whistleblower. The employee in Juarez brought sued her employer and alleged she was terminated because of she opposed violence in the workplace. The employer moved for summary judgment and argued that the employee failed to her burden of proof. The Miami-Dade Circuit Court Judge ruled in favor of the employer. The employee appealed.

The employee in Juarez was a female who worked in a dry-cleaning business. The employee was battered by a male employee over a dispute regarding improper ironing of a garment. At first the male employee tried to trip her after she notified the business owner that the employee was not performing his job properly. The following day tensions escalated as the coworker attacked her. Shortly thereafter the police were called, a report was filed, and a restraining order was sought against the co-worker. During the pendency of the restraining order, the co-worker was not working and the alleged whistleblower alleged that the business owner’s treatment of her changed. Upon expiration of the restraining order, the co-worker returned to work and the alleged whistleblower was fired. Her termination prompted the lawsuit against the employer for unlawful retaliation for “blowing the whistle” in violation of the Florida private employer whistleblower statute.

The statute, at Fla. Stat. § 448.102, contains the following wording: “an employer may not take retaliatory personnel action against an employee because the employee has:

(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.

(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.

(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.

Workplace violence is a hazard prohibited by the Occupational Safety and Health Act (“OSHA”). Despite OSHA being applicable to the dry-cleaning business, the key issue in Juarez was that the employee filed her complaint with the police, not OSHA (the appropriate governmental agency). Furthermore, the employee’s complaint was against the co-worker, not the employer. Although the employee properly “objected” by filing a police report and obtaining a restraining order, her complaint failed to provide any evidence that the violence the co-worker allegedly committed was an “activity, policy, or practice of the employer” as the statute requires. There also was no evidence that the battery was within the scope of the co-worker’s employment or in furtherance of the dry-cleaning’s business interest. For the foregoing reasons, the appellate court affirmed the Circuit Court’s ruling.

The Mavrick Law Firm has been successful in obtaining excellent results in the defense against whistleblower retaliation claims. If you need to defend against a whistleblower claim, please contact Fort Lauderdale employment attorney Peter Mavrick.

The Fort Lauderdale employment litigation attorneys at the Mavrick Law Firm have successfully represented many businesses in whistleblower claims in the Miami-Dade, Broward, and Palm Beach County areas encompassed by the Third and Fourth District Courts of Appeal, as well as Hillsborough, Sarasota, and other counties encompassed by the Second Circuit Court of Appeal. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.