Key Takeaways

• Employees asserting claims under section 448.102(3) of the Florida Private Whistleblower Act must show that the challenged employer conduct is unlawful.
• An employee’s “good-faith, objectively reasonable belief” that the employer’s conduct is unlawful is insufficient to prove a claim under section 448.102(3).
• Proof of an “actual violation” does not require an employer’s completed unlawful action or adjudication of illegality.
• Florida employers should continue to investigate, assess, and document employee complaints that may implicate statutory or regulatory compliance and confer with legal counsel prior to taking any adverse action against an employee making such a complaint.

Section 448.102(3) of the Florida Private Whistleblower Act prohibits an employer from taking any retaliatory action against an employee “because that employee has: . . .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.” Fla. Stat. § 448.102(3). In Gessner v. Southern Company, the Florida Supreme Court resolved a split among Florida’s appellate courts as to whether section 448.102(3) requires that a plaintiff-employee establish that the employer’s activity, policy, or practice constitutes a violation of the law or only that the plaintiff-employee reasonably believed that the employer violated the law. The Court sided with the former, stating that “an employee must establish . . . that the employer’s activity, policy or practice is in violation of the law – that is, it constitutes a violation of the law – not that the employer has already in fact violated the law, nor that the employee reasonably believed the employer violated the law.”¹

Why This Decision Matters

The Gessner decision resolves a split among Florida appellate courts, removing any ambiguity as to the interpretation of section 448.102(3) between various Florida courts. Before Gessner, Florida appellate courts were divided over whether section 448.102(3) protected only an employee’s objection to conduct that is actually unlawful or also protected an employee’s objections based solely on the employee’s good-faith, objectively reasonable belief that the employer’s conduct is unlawful. The Florida Supreme Court adopted the former interpretation, while clarifying that the statute does not require proof of a completed or adjudicated violation.

The Court’s Analysis

The Court focused on the statutory text, particularly the phrase protecting an employee who objected to or refused to participate in conduct “which is in violation of a law, rule, or regulation.” Because section 448.102(3) explicitly references conduct that is in violation of a law, rule, or regulation, proof of a violation of section 448.102(3) requires proof that the challenged conduct is actually unlawful. An employee’s sincere or objectively reasonable belief regarding the illegality of an employer’s conduct, without more, is insufficient to establish a violation of section 448.102(3).

However, an employee need not prove that the employer actually completed a legal violation or adjudication of illegality. Rather, an employee’s complaint or objection is protected under section 448.102(3) where the employer’s conduct would be unlawful if carried out, even if the conduct has not yet culminated in a completed violation. The Court explained that an “actual violation” does not “require a completed unlawful action or adjudication of illegality in order for a plaintiff to sustain” a claim under section 448.102(3).²

Applying that standard, the Court approved the result reached below and concluded that Gessner could not proceed because he offered only safety concerns and conclusory assertions, not sufficient proof that the specific practices he challenged were unlawful.

The Court also addressed what plaintiffs must show at different stages of the case. At the motion to dismiss stage, a plaintiff must plead ultimate facts showing that the employer’s challenged activity, policy, or practice, if proven, would violate a law, rule, or regulation.³ At the summary judgment stage, the plaintiff must come forward with evidence sufficient to create a genuine issue of material fact as to whether the challenged conduct is, by definition, unlawful.⁴

What Florida Employers Should Do Now

Employers should review complaint-handling and investigation protocols to ensure that employee complaints and objections are assessed against potentially applicable legal requirements. Employers also should remain mindful that adverse action against an employee within close temporal proximity to that employee's complaint or objection to unlawful conduct may create liability to the employee. Careful documentation, prompt investigation, and coordination with counsel remain important tools for managing that risk.

• Review internal reporting and investigation procedures for employee complaints involving alleged legal or regulatory violations.
• Before terminating or taking any adverse action against an employee who has complained of or objected to employer conduct, confer with counsel to verify whether the employer conduct may be unlawful.
• Document all legitimate business reasons for taking any adverse action against an employee subsequent to the employee’s complaint regarding employer conduct.
• Document the company’s response, corrective measures, and reasons for any subsequent employment decisions.

Bottom Line

The Florida Supreme Court’s decision in Gessner narrows protected activity under section 448.102(3) to only those objections and complaints about employer conduct that is, by definition, in violation of the law.  A plaintiff who relies only on a reasonable belief that the employer conduct was unlawful can no longer succeed on a claim under section 448.102(3). However, an “actual violation” under section 448.102(3) does not require proof that the employer completed an unlawful action or adjudication of such illegality. For Florida employers, the decision provides meaningful clarity and underscores the importance of responding carefully to employee concerns that implicate statutory or regulatory compliance.

Employers with questions about evaluating whistleblower complaints or updating investigation protocols in light of Gessner should contact a member of our Labor & Employment team.