This article covers:
What Even is Whistleblowing in the US?
Whistleblower Retaliation in Florida
Florida Whistleblowing Laws
Florida Whistleblowing Cases
Important Steps to Consider Before Whistleblowing in Florida
What Even is Whistleblowing in the US?
Whistleblowing is the act of a person (usually an employee/contractor/supplier of the company), revealing information about wrongdoing within an organisation. Examples of wrongdoing include fraud, misconduct, corruption or illegal/unsafe activity. The passing on of such knowledge is called “blowing the whistle”.
There are two types of whistleblowing based on the methods used to communicate allegations or information:
- Internal whistleblowing – the reporting of wrongdoing using the channels within the organisation, such as to Senior Human Resources Officers or other higher ups
- External whistleblowing – the reporting of wrongdoing to people outside of the organisation, such as media, the police or government officials
Whistleblowers play a key role in informing and protecting consumers, communities and the general-public from harm and misconduct, sometimes revealing classified or private information.
As a result, whistleblowers often find themselves in difficult situations, risking their career and personal safety for the greater good. Consequently, there are specific laws and protections to encourage people with knowledge to come forwards, whilst safeguarding them from mistreatment, job termination and personal detriment.
In addition, companies often have their own whistleblowing policies in place, outlining how to report on misconduct or breaches of the law.
Whistleblowing in Florida
In the state of Florida there are whistleblower protection laws in place which encourage the act of whistleblowing and prohibit employers from retaliating against employees for reporting misconduct, violation of laws and regulations, activity putting the general public at risk, fraudulent activity etc.
The laws in Florida for whistleblowing tend to follow the laws at the Federal level, such as the Federal Whistleblower Protection Act (WPA) and the Federal False Claims Act (FCA).
Examples of protected complaints include:
- The reporting of suspected illegal activity by an employer to a government agency or law enforcement
- The reporting of suspected violation of a law or regulation or misconduct using internal channels, e.g. to a supervisor or other person within the company who has the authority to investigate or correct the misconduct
- The refusal to participate in actions given by an employer that would violate state or federal laws
Whistleblower Retaliation in Florida
Whistleblower retaliation is when an employer takes adverse action against an employee or fires an employee for blowing the whistle. Employer retaliation is one of the main consequences of whistleblowing in California. An adverse action is something which would negatively impact an employee and prevent them from engaging in protected whistleblower activity. Adverse actions are not always easy to recognise as they can be subtle, such as excluding an employee from training or meetings.
Whistleblower retaliation/adverse actions include:
- Wrongful termination
- Bullying
- Demotion
- Intimidation
- An unfair write-up or performance review
- Ostracising
- Making threats
- Denying overtime
- Denying merit-earned promotion
- Denying training or professional development opportunities
- Denying access to resources required to conduct your work
- Refusing to hire or re-hire
- Reducing pay or hours
- Reporting or threatening to report an employee to immigration authorities or the police
- Blacklisting – intentionally reducing the employee’s ability to be employed in the future
Many of the adverse actions outlined above can lead to an employee resigning because the employer has made the working conditions and environment unbearable. This type of whistleblower retaliation is known as constructive discharge. Some of the laws in Florida offer protection to whistleblowers against employer retaliation.
Florida Whistleblowing Laws
Whistleblowing laws in Florida are based on the Federal whistleblowing laws. The Florida False Claims Act and the Florida Whistleblower Act are the two key whistleblower laws in Florida.
Florida False Claims Act (FCA) and Qui Tam
The Florida False Claims Act (FCA) encourages employees who are aware of their employers violating the law, to disclose such occurrences under a qui tam lawsuit. This closely mirrors the Federal FCA.
Qui tam originates from Latin and is an abbreviation for a longer phrase meaning “Who sues on behalf of the King as well as for himself.” Put simply, qui tam means that a private citizen initiates legal action on behalf of the state. Therefore, under the qui tam provisions of the Florida FCA, whistleblowers bring forwards allegations on behalf of the State.
Whistleblowers can inform on a wide range of fraudulent activities under the Florida FCA, including concealing or avoiding to pay the State, knowingly making false claims for payments to the State and misappropriating State property.
If found guilty of the violation of State laws, employers will face penalties and damages under the Florida FCA. Employers are liable to pay triple the actual damage, in addition to civil fines from $5,500 to $11,000 for each violation. This can add up to a significant amount of money, as in many cases the employer has committed multiple violations of the law.
Whistleblower rewards are offered under the qui tam provisions of the Florida FCA. If the case is successful, a whistleblower is entitled to receive rewards ranging from 15-25%, depending on the specifics of each case. The amount also depends on whether the State decided to pursue the case, or if the whistleblower proceeded with private actions. If the State intervenes, the whistleblower can expect to receive from 15-25% of the recovered funds. If the State decided not to intervene, the whistleblower is entitled to 25-30% of the recovered funds. However, there are various circumstance in which the whistleblower reward will be reduced by the court:
- If the whistleblower planned or initiated the fraud
- If the allegations brought forward by the whistleblower are based upon public information
The qui tam provisions of the Florida FCA provide protection against employer retaliation towards whistleblowers. Acts of retaliation include wrongful terminations, demotion or suspensions, bullying, discrimination, threats and harassment. Assistance and investigations are provided for those facing retaliations from employers due to lawful whistleblowing actions.
Under the Florida FCA, a whistleblower has up to 6 years from the occurrence of an employer violating the law to file a qui tam complaint. This time limit can be extended up to 10 years in certain cases.
Florida Whistleblower Act
The Florida Whistleblower Act is a law which can be found in Chapter 112 of the Florida Statutes. It was introduced to protect the act of whistleblowing and to prevent employer retaliation against whistleblowers. The Florida Whistleblower Act is divided into 2 sections – private and public. Under this Act, it is prohibited for any government entities or employers to take adverse personal actions against employees who lawfully disclose information of misconduct or actions violating the law. Adverse actions include dismissal, transfer, reprisals, threats or the withholding of benefits and bonuses.
To file a claim under the Florida Whistleblower Act, certain requirements must be adhered to:
- The whistleblower must have first reported the violation of the law to their employer. If the employer refuses to correct the problem, the employee can report the violation to the authorities.
- The whistleblower must have experienced adverse actions impacting their employment as a direct result of whistleblowing. Adverse actions include the losing of a job, being denied benefits and training, bullying , threats and harassment.
If these requirements are not met, a whistleblower will not be provided with protection against employer retaliation.
If an employer violates the statute and carries out retaliation against an employee, the Florida Whistleblower Act entitles whistleblowers to receive damages. The whistleblower may receive back pay (lost wages), lost benefits and be reinstated to their previous employment position. In addition, an employer found to have retaliated must pay the legal fees and costs of the whistleblower.
Florida Public Whistleblower Act:
The Florida Public Whistleblower Act protects public or state employees when disclosing information on misconduct and illegal actions which violate state laws, within a public agency. This Act provides protections against unjust retaliations, whilst encouraging employees to come forwards with relevant information. This Statute can be found under Chapter 112 and Chapter 448.102 of the Florida Statutes.
The Act does not protect:
- A person who initiated or participated in the violation
- A person who discloses information of a violation which they know is false or incorrect
- A person who is under the custody or care of the state correctional system
Florida Private Whistleblower Act:
The Florida Private Whistleblower Act protects whistleblowers who are private sector employees when disclosing information on the breaking of laws, rules and regulations. The Act also provides protection from unjust retaliations. The Statute can be found under Chapter 448.102 of the Florida Statutes.
Three types of whistleblower actions are protected:
- Disclosing/threatening to disclose information regarding the breaking of a law or regulation
- Disclosing information regarding the breaking of a law or regulation to a state entity during an investigation or hearing
- The refusal to participate in activities which violate a law or regulation
However, whistleblowing is only valid under this Act if these steps are followed:
- The violation must first be reported in writing to the employer to give them the opportunity to correct the issue. If the employer refuses to rectify the problem, only then can an individual blow the whistle and disclose information to the authorities.
- Appropriate reporting: Information regarding violations of the state law must be reported in writing, under oath or in a legal testimony to the authorities, in a timely manner.
If these requirements are not met, whistleblowers will not be protected from employer retaliation.
Florida Whistleblowing Cases
The state of Florida encourages whistleblowing activity. A few of the most famous Whistleblowing cases in Florida are outlined below. Lessons can be learned from these cases, including the importance of acting under the protection of whistleblowing laws when disclosing information about a violation of the law. The small details are hugely important.
1. The Public Service Commission sued for allegations of whistleblower discrimination
In 2005, a whistleblower named Crouch filed a discrimination complaint against his employer, the Public Service Commission. However, in this case, the court ruled against the whistleblower and in favour of the employer. This is because the verbal complaints of Crouch to his supervisor did not meet the requirements of the Whistleblower Act, in which the complaint must be in writing. This is clearly stated in the statute. This case highlights the need to follow the requirements of whistleblowing laws and seek legal guidance if unsure.
2. Florida Int. University sued by whistleblower for wrongful discharge
In 2008, the Florida International University was sued under Florida’s Public Sector Whistleblower Act by a former employee, for wrongful discharge. The employee filed a complaint about some illegal financial practices and shortly afterwards, her job was terminated. The University tried to argue that it was not under the group of State agencies in the Act, so that the Whistleblower Act does not apply to them. However, the court disagreed and the Commission concurred that the University illegally retaliated against the employee due to her whistleblowing disclosures.
3. Whistleblower allegations of financial fraud result in $325,000 settlement with Florida Resorts
Following the allegations of a whistleblower using the qui tam section of the Florida False Claims Act, Florida companies Kingwood Orlando Reunion Resort LLC and Kingwood Crystal River Resort Corp. have agreed to pay a settlement of $325,000. The complaint was filed by the former Director of Human Resources for Kingwood Resort. The resort companies were found guilty of violating the FCA, by knowingly providing false information and certifications on a Paycheck Protection Program (PPP) loan forgiveness application.
Whistleblowers are entitled to a portion of the recovered funds under the qui tam provision of the FCA. Therefore, the whistleblower received $46,000 from the settlement due to his efforts of uncovering fraudulent activity against the State
Important Steps to Consider Before Whistleblowing in Florida
Figuring out the whistleblowing process can be complicated and success of cases can vary. Therefore, it is crucial to have a full understanding before proceeding with such actions, to ensure protection is in place. If unsure, it is always best to seek legal advice from an experienced Whistleblower Attorney.
Here are some key steps to follow when reporting wrongdoing, to enhance the chances of a successful whistleblower or retaliation case:
- Collect Evidence: carefully gather relevant information that supports the allegation of wrongdoing, such as documents and records
- Meticulous Documentation: remember to document and maintain a record of everything involved in the process, such as all communications, responses and actions taken. Sometimes this may seem unnecessary, however, it can prove to be extremely useful if validity is questioned
- Internal Reporting: be fully informed of a company’s disclosure procedures before following these to disclose wrongdoings to the appropriate authoritative figure.
- External Reporting: report to the appropriate government agency if using the internal channels is unsuccessful
- Retaliation Protection: Make sure to be aware of the rights and protections afforded to whistleblowers in Florida under various laws. Ensuring safety from retaliation is extremely important
- Legal Advice: if unsure or the situation deems necessary, get legal counsel; to provide support through the process.
- Anonymous Reporting: remember that anonymous reporting is offered by some agencies and is a way to protect identity
Learn more about Florida Labor Laws through our detailed guide.
Important Cautionary Note
The information provided in this article is intended to be informative but should not be considered legal advice. Laws and regulations can change, so it’s advisable to consult employment attorneys or consultants for current and personalised guidance in your circumstances and jurisdiction.
