What Constitutes A ‘Retaliation Situation’?

November 26, 2015  

The term ‘whistleblower’ has been in the news a lot lately and often has an unfairly negative connotation of espionage or betrayal. Certainly the psychological pressure on employees to remain loyal to their employers and not reveal illegal or unfair practices can be very powerful, and the individuals who do expose a wrongdoing should be celebrated and not vilified in most situations – and also protected.

Florida law does offer considerable protection to so-called ‘whistleblowers’ as long as they fit the three definitions under F.S. 448.101-448.105 that spell out what the terms employer, employee, and retaliatory action mean.

Employers and Employees

Under Florida whistleblower law, an employer is defined as any private entity that employs ten or more people, whether an individual, partnership, corporation, or association. Thus the whistleblower laws protect employees of even very small companies or other forms of employer. An employee is defined as an individual who performs services under the control or direction of an employer as defined above in return for wages or other renumeration – this excludes independent contractors.

Retaliation

The primary fear of most whistleblowers is retaliation from their employers, and this is the crux of the statute – protecting legitimate whistleblowers who bring illegal or unethical activities to light at great personal risk. Retaliation is defined in the statues as suffering ‘an adverse personnel action’ from their employers. These actions include demotion, termination, involuntary transfer, reduction in pay, or punitive shift assignment (i.e., being assigned a late-night shift despite clear protest).

Employees who can demonstrate any of these actions subsequent to their whistle blowing activities are entitled under the statute to bring suit against their employers to seek relief. Obviously, proving some of these retaliatory actions is more difficult than others. While termination after revealing employer activities may show a clear cause and effect, a simple shift re-assignment without reduction in pay or benefits may not be so obviously retaliatory. Employees seeking to bring suit under the whistle-blower law must be sure to document their case very carefully in order to demonstrate that employer actions were meant in a punitive way.

The Florida law and other similar laws around the country are designed to both encourage and protect employees who are witnesses to illegal or unethical activities on the part of their employers, but as with any other accusation in a legal framework the burden of proof is on the accuser, and termination or other actions taken by an employer can and have been reinstated by the courts.