Whistleblower Protection Law Summaries

10-3600Florida, Whistleblower Protection Law Summaries

Florida's whistleblower law is found in the Florida Statutes at Sections 112.3187; 448.102; and 760.10.

DEFINITIONS

"Employee" under Sec. 448.102 means a person who performs services for and under the control and direction of an employer for wages or other remuneration. The term does not include independent contractors (Sec. 448.101(2)).

For purposes of Florida's occupational safety and health law, "employee" means any person who is, has been or may be exposed under normal operating conditions or foreseeable emergencies to any toxic substances in the employer's workplace (Sec. 442.102, as amended by Ch. 103 (S. 440), L. 1997).

"Independent contractor" is defined as a person engaged in any business and who enters into a contract with an agency (Sec. 112.3178(3)(d)).

"Employer" under Sec. 760.10(7) is any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person (Sec. 760.02(7)).

Employer under Sec. 448.102 means any private individual, firm, partnership, institution, corporation or association that employs 10 or more persons (Sec. 448.101(3)).

For purposes of Florida's occupational safety and health law, "employer" means any person, firm, corporation, partnership, association or other entity engaged in a business or in providing services, including the state and any of its political subdivisions, that manufactures, produces, uses, applies or stores toxic substances. An independent contractor or subcontractor will be deemed the sole employer of its employees, even when the employees are performing work at the workplace of another employer. The term "employer" does not include (Sec. 442.102, as amended by Ch. 103 (S. 440), L. 1997):

(1) employers of two or fewer employees;

(2) employers of domestic workers in private homes;

(3) bona fide farmers or an association of farmers employing employees in agricultural labor performed on a farm, or in the onsite packing facilities for agricultural products from such farms, who employ 12 or fewer regular employees and who employ 24 or fewer other employees at one time for seasonal or occasional agricultural labor that is completed in less than 30 continuous days, provided such seasonal or occasional employment does not exceed 60 days in the same calendar year;

(4) employers of professional athletes;

(5) employers employing labor under court sentences requiring the performance of community services.

"Agency" under Sec. 112.3187 is defined as any state, regional, county, local, or municipal entity, and any official, officer, department, division, bureau, commission, authority, or political subdivision therein (Sec. 112.3178(3)(a)).

"Retaliatory personnel" action under Sec. 448.102 means the discharge, suspension or demotion by an employer of an employee or any other adverse employment action taken by an employer against an employee in the terms and conditions of employment (Sec. 448.101(5)).

"Law, rule or regulation under Sec. 448.102 includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business (Sec. 448.101(4)).

"Prohibited acts:" An agency or independent contractor must not dismiss, discipline or take any other adverse personnel action against an employee for disclosing information pertaining to (Sec. 112.3187(4)(a) and (5)(a) and (b)):

(1) any violation or suspected violation of federal, state, or local law or regulation by an employee or agent of the agency or independent contractor that presents substantial danger to the public's health, safety and welfare; or

(2) any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

It is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is unlawful under Florida's Civil Rights Law, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing pursuant to Florida's Civil Rights Law (Sec. 760.10(7)).

An employer may not take any retaliatory personnel actions 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 violates law, rule, or regulation (the employee must first bring to the attention of the supervisor in writing the activity, policy, or practice and must afford the employer a reasonable opportunity to correct the situation); (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 or regulation by the employer; (3) objected to or refused to participate in any activity, policy or practice of the employer that is in violation of a law, rule or regulation (Sec. 448.102).

COVERAGE

Employers covered under Sec. 448.102 prohibitions include private individuals, firms, partnerships, institutions, corporations, or associations that employ 10 or more persons (Sec. 448.101(3)).

Public employment. --"Agency" under Sec. 112.3187 is defined as any state, regional, county, local, or municipal entity, and any official, officer, department, division, bureau, commission, authority, or political subdivision therein (Sec. 112.3178(3)(a)). "Independent contractor" is defined as a person engaged in any business and who enters into a contract with an agency (Sec. 112.3178(3)(d)). For practical purposes, this section covers only public employers and any private employers who enter into a business relationship with a public body.

Private employment. --"Employer" covered under Sec. 760.10(7) is any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. (Sec. 760.02(7)).

EXCEPTIONS

Prohibitions under Sec. 112.3187 are not applicable when an employee discloses information that the employee knows to be false (Sec. 112.3187(4)(c)). Furthermore, adverse action taken against an employee predicated on grounds other than the disclosure of information is not prohibited under this section (Sec 112.3187(10)).

An employee alleging violation of Sec. 448.102 may not recover in court if the employee failed to notify the employer about the illegal activity, policy or practice as required under Sec. 448.102 or if the retaliatory personnel action was predicated upon grounds other than the employee's exercise of rights protected under Sec. 448.102 (Sec. 448.103(1)(c), as amended by Ch. 103 (S. 440), L. 1997).

PROCEDURES

An employee aggrieved by a violation of Sec. 448.102 may institute a civil action within two years after discovering that the retaliatory personnel action was taken, or within four years after the retaliatory personnel action was taken, whichever is later (Sec. 448.103(1)(a)). The court may order injunctions, reinstatements of positions and benefits, and compensation for lost wages and other remuneration (Sec. 448.103(2)).

Public employment. --An employee protected under Sec. 112.3187 must disclose information to any agency or federal government entity having authority to investigate or remedy the violation or act, including, but not limited to Office of the Chief Inspector General, an agency inspector general (Sec. 112.3187(6)). Any public employee protected by this section may file a complaint with the Office of the Chief Inspector General or the Office of the Public Counsel, no later than 60 days after the prohibited personnel action (Sec. 112.3187(8)(a)). Within three working days after receiving the complaint, the officer receiving the complaint must acknowledge the receipt of the complaint and provide copies to the parties named in the complaint (Sec. 112.31895(b)).

Upon receipt of notice from the Public Counsel of termination of the investigation, the employee may elect to pursue administrative remedies available under Sec. 112.31895 or bring a civil action within 180 days after the receipt of notice (Sec. 112.3187(8)(a)). Any other person protected under this section may, after exhausting all available contractual or administrative remedies, bring civil action in any court of competent jurisdiction within 180 days after the prohibited act occurs (Sec. 112.3187(8)(c)).

Private employment. --Any person aggrieved by violations under 760.10(7) can file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation (Sec. 760.11(1)). The commission is given the authority to investigate the alleged violations. When the Commission determines that there is reasonable cause to believe that violations occurred, the aggrieved person may bring civil action against the employer, or request an administrative hearing (Sec. 760.11(4)). If the Commission determines that there is not reasonable cause to believe such violations occurred, the complaint is dismissed; however, the aggrieved person may still request an administrative hearing within 35 days of the determination (Sec. 760.11(7)).

WHAT THE EMPLOYER MUST DO

An agency or independent contractor must not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pertaining to (Sec. 112.3187(4)(a) and (5)(a) and (b)):

(1) any violation or suspected violation of federal, state or local law or regulation by an employee or agent of the agency or independent contractor that presents substantial danger to the public's health, safety and welfare; or

An employer may not take any retaliatory personnel actions 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 violates law, rule or regulation (the employee must first bring to the attention of the supervisor in writing the activity, policy or practice and must afford the employer a reasonable opportunity to correct the situation); (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 or regulation by the employer; (3) objected to or refused to participate in any activity, policy or practice of the employer that is in violation of a law, rule or regulation (Sec. 448.102).

Safety and health. --No person may discharge or cause to be discharged, or otherwise discipline, or in any manner discriminate against any employee for any of the following reasons (Sec. 442.116(1), as amended by Ch. 103 (S. 440), L. 1997):

(1) the employee has requested information regarding toxic substances, filed a complaint or suit or instituted or caused to be instituted a proceeding under Florida's occupational safety and health law;

(2) the employee has testified or is about to testify in any proceeding in his or her own behalf or on behalf of others; or

(3) the employee has exercised any other right afforded by Florida's occupational safety and health law.

No pay, position, seniority or other benefit may be lost for exercise of any right provided by Florida's occupational safety and health law (Sec. 442.116(2)).

A violation of these provisions by an employer creates in its employee a private cause of action cognizable in the circuit court. An employee who believes that he or she has been discharged, disciplined or in any manner discriminated against by his or her employer for reasons of exercising rights under Florida's occupational safety and health law may, within 120 days of such violation or within 120 days after obtaining knowledge that a violation did occur, file a cause of action (Sec. 442.116(3), as amended by Ch. 103 (S. 440), L. 1997).

Fair employment practices. --It is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is unlawful under Florida's Civil Rights Law, or because that person has made a charge, testified, assisted or participated in an investigation, proceeding or hearing pursuant to Florida's Civil Rights Law (Sec. 760.10(7)).

ENFORCEMENT

The Office of the Chief Inspector General or the Office of the Public Counsel is given the authority to enforce Sec. 112.3187 prohibitions (Sec. 112.3189).

The Commission of Human Relations is assigned with the enforcement of Sec. 760.10 prohibitions (Sec. 760.05).

No public agency or department is charged with the enforcement of Sec. 448.102. Employees may enforce their own rights under Sec. 448.102 by bringing a civil suit pursuant to Sec. 448.103.

WHO TO CONTACT

The Office of the Chief Inspector General may be reached at (904)922-4637.

The Public Counsel's Office may be reached at 111 W. Madison Street, Tallahassee, FL 32399-1400. Telephone: (904)488-9330. Fax: (904)488-4491.