Claims by employees “blowing the whistle” on their employer are on the rise in today’s workplace. Will you be ready when the whistle is blown on your company? Better yet, can you prevent whistleblower claims from being raised in the first place?
Various provisions of state and federal law prohibit retaliation against employees who “blow the whistle” on employer misdeeds. Laws prohibiting retaliation against whistleblowing employees include:
- Florida’s Private Whistleblower Act
- Florida’s Public Whistleblower Act
- False Claims Act
- Sarbanes-Oxley Act
- Dodd-Frank Act
- 21 whistleblower laws in OSHA’s Whistleblower Protection Program
While the specifics of each of these laws can differ greatly so that each whistleblower claim must be treated individually and on a case by case basis, certain common threads can be found in all whistleblower claims. First, the employee’s claim must be made in opposition to or about an improper practice by the employer. For most whistleblower statutes, the employee must complain about an actual violation of a law, rule or regulation. This means that the action complained of must constitute a violation of a law, rule or regulation and not the mere suspicion of a violation or a belief that a violation has occurred. Under Florida’s Private Whistleblower Act, Florida Statutes § 448.101, et seq., only a validly enacted law, rule or regulation can form the basis of a claim. Thus, employee handbooks or policies, industry standards, even governmental executive orders and opinion letters cannot form the basis of a whistleblower claim because they do not qualify as a validly enacted “law, rule or regulation” necessary to trigger Florida’s statute.
Another common thread running throughout all whistleblower statutes is the anti-retaliation provision. Stated simply, once the complaint is made, the complaining employee cannot be subject to any retaliatory personnel action as a result of the claim. This includes discharge, suspension, demotion, decrease in pay or loss of benefits, or any other action that negatively impacts that employee’s working conditions. Unless the decision to take such action against the employee was already made prior to the assertion of the complaint and you have the documentary evidence to prove it, it is wise to forego any negative treatment of the employee until the whistleblower claim has been addressed.
The above topics, as well as many more related to understanding and avoiding whistleblower and retaliation claims, will be discussed at Akerman’s upcoming breakfast seminar on November 20th in West Palm Beach, FL.