AKERMAN SENTERFITT LAWYER WANTS TO REQUIRE WHISTLEBLOWERS TO GIVE WRITTEN NOTICE AND OPPORTUNITY TO CURE

Contrary to the Florida Supreme Court's wisdom in a case called Golf Channel, an AKERMAN SENTERFITT lawyer writes about how he wants to require written notice and an opportunity to cure to the employer before allowing employees to have rights. He gives as his reason the elimination of "specious litigation," an odd claim from a large law firm that thought it "frivolous" that seven St. Augustinians wanted contaminated solid waste moved from the Old City Reservoir to a Class I landfill (instead of Lincolnville). See AKERMAN SENTERFITT corporate lawyer's article, below:


Notice requirements under Florida's Whistle-Blower Act

By Jonathan Robbins

Smart Business | November 2004

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As readers may be aware, the state of Florida has enacted remedial statutes designed to protect employees who report or refuse to assist employers who violate laws enacted to protect the public.

Under Florida's Whistle-Blower's Act (Section 448.101- 448.105, Florida Statutes (2003)), a private-sector employer can be liable to its employee for "retaliatory personnel action" taken against the employee based upon the employee's participation in any one of three types of protected whistle-blowing conduct. The three types of protected whistle-blowing conduct are:



* Disclosure. An employee who discloses or threatens to disclose the employer's unlawful activity to a governmental agency



* Assistance. An employee who assists an agency with an ongoing investigation of the employer's alleged unlawful activity



* Objection. An employee who objects or refuses to participate in the employer's unlawful activity



Prior to 2000, Florida courts were divided as to whether the Whistle-Blower's Act required 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. Several district courts of appeal previously held that the written notice requirement applies to disclosure claims only, while other courts held that written notice is due to the employer in order to bring any type of whistle-blower claim.

The discrepancy was addressed by the Florida Supreme Court in 2000, when it handed down its decision in Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000). The Golf Channel decision clears the discrepancy in holding that an employee does not have to provide his or her employer with written notice of the employer's alleged unlawful activity in order to maintain a cause of action for retaliatory job action when the employee's complaint is predicated on assistance or objection whistle-blowing.

In Golf Channel, employee Jenkins filed an objection-based whistle-blower claim alleging that his firing was in retaliation for his verbal objections to supervisor'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 his failure to give the Golf Channel written notice of his objections.

Florida's Supreme Court reversed the decision, holding that the purpose behind the notice requirement is to afford an employer an opportunity to cure its wrong internally, avoid unreasonable damage to its reputation and preserve the employment relationship between the employer and employee.

The court reasoned that requiring written notice in assistance whistle-blowing instances does not serve the purposes of the notice requirement, because an investigation or hearing by an appropriate entity is already ongoing through no action of the employee, and the employer's opportunity to cure has passed.

Similarly, the court found that objection whistle-blowing requires no written notice because this protected conduct foresees occasions in which employees will be immediately dismissed or prevented from giving written notice. In other words, 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.

Opponents of the holding of Florida's high court have taken the position that the limited application of the Whistle-Blower's Act's written notice requirements may flood the court with more employment litigation. However, proponents argue that the act does not provide a remedy to an employee with any grievance with his or her boss, nor does it vitiate the At-Will Employment doctrine currently in effect in Florida. The act simply protects whistle-blowing activities of the employee that are based upon an employer's violation of a "law, rule or regulation," rather than a case in which an employee complains about business practices which may be morally objectionable but are not illegal.

Accordingly, proponents argue the act itself contains built-in safeguards against the flood of specious litigation.

Obviously, from the standpoint of the employer, pre-suit notice and the opportunity to cure any alleged wrongdoing would be the preferable route, as unnecessary and costly litigation could be avoided in many instances. Nevertheless, to date, the Golf Channel decision remains the applicable authority on the notice requirement.

Jonathan S. Robbins is a shareholder in the Fort Lauderdale office of Akerman Senterfitt. Reach him at jrobbins@akerman.com.