Under Florida Whistleblower Act, Whistleblowers Require "Good Faith Belief" Of Violation NOT "Actual Violation" Of Law, Rule, Or Regulation

The tide in Florida appears to have turned. Whereas, the case law initially and largely concluded that the Florida private-sector whistleblower act ("FWA"), Fla. Stat. 448.101 et seq., requires an objection to an ACTUAL violation of a law, rule, or regulation, White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1337 (M.D. Fla. 2005), Charlton v. Republic Svcs. of Fla., L.P., 2010 U.S. Dist. LEXIS 54124, 2010 WL 2232677, *3 (S.D. Fla. 2010), two very recent federal court decisions have followed the Florida Fourth District Court of Appeals, in concluding that “all that is required [under the FWA] is that the employee have a good faith, objectively reasonable belief that her activity is protected by the statute." See Bonnafant v. Chico's FAS, Inc., 2014 U.S. Dist. LEXIS 57849 (M.D. Fla. Apr. 25, 2014). See also Hernandez v. Publix Super Mkts., 2014 U.S. Dist. LEXIS 49062 (S.D. Fla. Apr. 9, 2014). Both Bonnafant and Hernandez approvingly cited the 9-month old decision in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA July 31, 2013).

In Aery, the 4th DCA ruled that the plaintiff-employee had established a prima facie case of retaliation under the FWA. The Court provided that “it was not necessary that Aery provide his employer with statutory and case law citations to support his claim of illegal conduct.” It was not necessary that there be an actual violation of a law, rule, or regulation. Rather, in order to receive protection under the FWA, the plaintiff-employee was only required to report conduct that he reasonably believed was illegal.

Aery is Florida’s first appellate court pronouncement concerning the standard of proof required in a FWA case. As such, prior federal court decisions requiring an ACTUAL violation of a law, rule, or regulation are now likely unpersuasive. Indeed, under principles of stare decisis, Florida federal court cases addressing the FWA in the wake of Aery are likely constrained to follow Aery. The Hernandez Court noted as much:

"But, as noted by Hernandez, Aery is the only Florida intermediate appellate court to have addressed the standard of proof in a FWA claim. As a federal court applying state law, the Court is ‘bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.’ [citations omitted]. Furthermore, the Supreme Court of Florida has held that ‘decisions of district courts of appeal represent the law of Florida unless and until they are overruled by this Court.’ [citation omitted]. No persuasive authority has been cited that the Florida Supreme Court would decide this issue differently than the court did in Aery."

In sum, the ruling in Aery has now been buttressed by the very recent decisions in Bonnafant and Hernandez. Plaintiff-side employment law practitioners should now likely have a decidedly lower threshold to satisfy at summary judgment and, more significantly, a lesser burden to meet at trial and through carefully and appropriately crafted jury instructions. Defense-side employment lawyers will likely continue to press for the ACTUAL VIOLATION requirement. However, it would appear that black-letter concepts of civil procedure will demand that dispositive legal rulings and jury instructions follow the REASONABLE GOOD FAITH standard espoused by Aery and followed by Bonnafant and Hernandez.