The Florida private sector Whistleblower’s Act protects employees who object or refuse to participate in a violation of a law, rule or regulation by their employer. But an employee’s “reasonable belief” of a violation is insufficient – the employee must prove an actual violation to state a claim under the FWA, according to a recent decision by Florida’s Second District Court of Appeal, Kearns v. Farmer Acquisition Co., Case No. 2d12-6388 (February 11, 2015).

In reaching this holding, the court acknowledged a split of authority on this issue: Numerous federal trial courts have held that proof of an actual violation is required, while at least two federal courts as well as Florida’s Fourth District Court of Appeal have held that an employee’s reasonable belief is sufficient. In Kearns, the Second DCA was persuaded by the reasoning of the decision in White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335,1336 (M.D. Fla. 2005), in which the court stated that requiring a plaintiff to prove an actual violation promoted the FWA’s policies “while adequately protecting the legitimate interests of private employers.” The White court explained:

Allowing for the expanded reading of the statute Plaintiff proposes would place an onerous burden on the employer to anticipate all of its conduct that an employee may reasonably believe is proscribed by a law, rule or regulation. Even if the employer knows the conduct is perfectly legitimate, it would be left with the Hobson's choice of terminating the employee and defending suit against the employee's reasonable belief or allow[ing] the employee to refuse to meet the requirements of the job with no consequence. In apparent recognition of this dilemma the legislature declined to include in the relevant section of the Act this protection for employees.

The Second DCA in Kearns therefore concluded that “Kearns must prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law.”

Despite this favorable holding for employers, the Second DCA went on to reverse the trial court’s decision in favor of the employer. The court ruled that Kearns, a former employee of the defendant’s automobile dealership, had sufficiently alleged that his employer violated a Florida statute by making false statements about its vehicles to assist purchasers in obtaining credit to purchase the vehicles. The Second DCA therefore ordered a new trial.

As we reported in 2013 when Aery was decided, the conflict among the courts on the proper legal standard under the FWA ultimately will have to be resolved by the Florida Supreme Court, or by an amendment to the FWA. For now, the legal standard that applies will be determined by the court in which the parties find themselves.