Number Of Employees As An Element Of Florida’s Private Sector Whistle-Blower Act: Guidance From Federal Employment Case Law

by Carlton Fields

This article discusses a potential pitfall or opportunity for parties litigating a claim under the private sector Florida Whistle‑blower Act (“FWA”), §§ 448.101, Fla. Stat., et seq. The FWA applies only to employers who employ “ten or more persons.” § 448.101(3), Fla. Stat.  Accordingly, a plaintiff under the FWA should specifically plead the number of people employed by the defendant to properly state a cause of action. Conversely, to preserve the issue for appeal, a defendant to an FWA claim should contest any failure to plead this condition.

The FWA generally prohibits certain employers from retaliating against employees who expose, or threaten to expose, legal violations by the employer. § 448.102, Fla. Stat. However, to be subject to the provisions of the FWA, an employer must employ 10 or more persons.  § 448.101(3), Fla. Stat. (defining “employer” as “any private individual, firm, partnership, institution, corporation, or association that employs ten or more persons.”); Dahl v. Eckerd Family Youth Alternatives, Inc., 843 So. 2d 956, 958 (Fla. 2d DCA 2003) (stating same); Tracey‑Meddoff v. J. Altman Hair & Beauty Centre, Inc., 899 So. 2d 1167, 1168 (Fla. 4th DCA 2005); Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 592-93 (Fla. 3d DCA 2009).

To date, no Florida decisions have expressly noted this “ten or more persons” requirement as an element of an FWA claim that must be pled. Florida courts have, however, generally discussed the requirements of a claim under the FWA, including the “ten or more” employees requirement. E.g., Florida Dept. of Children and Families v. Shapiro, 68 So. 3d 298 (Fla. 4th DCA 2011); Dahl, 843 So. 2d at 958; Tracey-Meddoff, 899 So. 2d at 1168; Diaz, 7 So. 3d at 592-93.  Federal decisions interpreting parallel federal statutes have addressed this issue and have routinely held that such “number of employees” requirements are substantive elements of the claim that must be pled. (Various federal employment statutes set minimum number of employee thresholds for their application. See e.g., Family and Medical Leave Act, 29 U.S.C. § 2611(4)(A)(i); Civil Rights Act of 1964, 42 U.S.C. § 2000e(b); Age Discrimination In Employment Act, 29 U.S.C. § 630(b); Americans With Disabilities Act, 42 U.S.C. § 12111(5)(A).)

Florida courts look to these federal decisions for guidance when interpreting state remedial employment statutes like the FWA.  E.g., Brown Distrib. Co. of W. Palm Beach v. Marcell, 890 So. 2d 1227, 1230 n.1 (Fla. 4th DCA 2005); Martinolich v. Golden Leaf Mgmt., Inc., 786 So. 2d 613, 615 (Fla. 3d DCA 2001) (citing cases); Fla. State Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996). Florida courts have specifically adopted the Eleventh Circuit’s interpretation of “employer” in the Title VII context, when interpreting the FWA.  Martinolich, 786 So. 2d at 615-16; Diaz, 7 So. 3d at 593‑94.

Eleventh Circuit Precedent
In Garcia v. Copenhaver, Bell & Associates, M.D.’s, P.A., 104 F.3d 1256, 1264 (11th Cir. 1997), the Eleventh Circuit held that a “number of employees” requirement was a “substantive element” of the cause of action under the ADEA. Id. A dispute on this question must be determined by the finder of fact. Id.

Thereafter, however, in Scarfo v. Ginsberg, the Eleventh Circuit determined that the district court properly held an evidentiary hearing and then granted judgment to the defendant because the plaintiff did not establish that the defendants had the requisite number of employees.  Scarfo v. Ginsberg, 175 F.3d 957, 961 (11th Cir. 1999). The Eleventh Circuit held that “[w]hether the appellees constitute an ‘employer’ within the definition of Title VII is a threshold jurisdictional issue.” Id. “Unless the appellees constitute an employer ‘who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year,’ Title VII is inapplicable, and the district court lacks subject matter jurisdiction . . . .”  Id. According to Scarfo, district courts were empowered to resolve disputed facts concerning a “number of employees” allegation.

In Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003), the Eleventh Circuit resolved the split between Garcia and Scarfo, and concluded that Garcia controlled. The court noted that “the Garcia analysis makes clear, both the defendant’s employer status and the plaintiff’s employee status for purposes of Title VII are substantive elements of the plaintiff’s cause of action ‘intertwined’ with the question of jurisdiction.” Morrison, 323 F.3d at 929 (citation omitted). This meant that district courts could not weigh disputed allegations of “number of employees” before trial. Id. at 928-29. Courts had to assess such questions under the deferential rule 12(b)(6) or summary judgment standards, rather than the less deferential standard present in resolving a jurisdictional rule 12(b)(1) motion. Id. at 928-29.

In short, Morrison, Garcia, and Scarfo addressed how district courts should deal with factual attacks on well-pled “number of employees” allegations. The common thread among these decisions is that the number of employees is an element of the claim, and the failure to allege that element is fatal to stating a cause of action.

Federal District Court Cases
In accord with that statutory requirement, numerous federal decisions have recognized that a cause of action is not properly pled where the plaintiff fails to allege the necessary “number of employees” element. See e.g., Binns v. Primary Group, Inc., 23 F.Supp.2d 1363, 1366 (M.D. Fla. 1998); Catuey v. Flatiron-Tidewater Skanska, 2011 WL 766342 at **3-4 (M.D. Fla. 2011) (recognizing that “joint employer doctrine” allows employers to be aggregated to meet “number of employees” requirement, but does not obviate need to allege threshold “number of employees” requirement); Giannola v. WW Zephyrhills, LLC, Not Reported in F.Supp.2d, 2011 WL 2784617 at **2-4 (M.D. Fla. 2011); Greif v. Jupiter Med. Ctr., Inc., Case No. 08-CV-80070, 2008 WL 2705436 at *5 (S.D. Fla. 2008); Evans v. Larchmont Baptist Church Infant Care Center, Inc., Case No. 2:11-CV-306, Slip Copy, 2012 WL 699529 at *6 (E.D. Va. 2012); Young v. City of Milwaukee, Case No. 11-CV-411, 2011 WL 2265523 at *3-4 (E.D. Wis. 2011); Spurlock v. NYNEX, 949 F.Supp. 1022, 1033 (W.D.N.Y. 1996); Thurston v. Borden Waste–Away Service, Inc., Case No. 3:96–CV–674RP, 1998 WL 456441 at * 14 (N.D. Ind. 1998); see also Blidy v. Examination Management Services, Inc., Case No. 96-CV-3553, 1996 WL 568786 at *2-3 (N.D. Ill. 1996).

Florida Case Law
The federal pleading standard requires the “number of employees” element to be pled, and plaintiffs in Florida courts should be careful to plead this requirement because the federal standard is more lax than the Florida pleading standard. As Florida’s Fifth District Court of Appeal has recognized:

The pleading standard in federal court and the pleading standard in our state courts differ radically.  The federal courts only require notice pleading; Florida is a fact-pleading jurisdiction. The quality of pleading that is acceptable in federal court and which will routinely survive a motion to dismiss for failure to state a claim upon which relief may be granted will commonly not approach the minimum pleading threshold required in our state courts.  Florida’s pleading rule forces counsel to recognize the elements of their cause of action...

Cont’l Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994).

Florida District Courts of Appeal have noted the “ten or more” requirement in the FWA, but the exact issue discussed herein was not presented for resolution in those cases. See Dahl, 843 So. 2d at 958; Tracey-Meddoff, 899 So. 2d at 1168. It is a basic tenet of Florida law, however, that “[t]he complaint must show a legal liability by stating the elements of a cause of action.”  Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1252 (Fla. 2008) (citing Fla. R. Civ. P. 1.110 ed. cmt.). While the factual specificity necessary to state a cause of action is open to interpretation, the need to plead the elements is not.  See id.

It is clear that the FWA applies only to defendants who are employers that employ 10 or more persons. There can be no “protected activity” under the FWA without the existence of a statutory “employer.” See § 448.101(3), Fla. Stat. Plaintiffs in FWA cases should expressly plead this requirement in their complaints.

Conversely, defendants in FWA cases should expressly challenge any failure to so plead.  An FWA defendant should also take care to: (i) obtain a ruling on any motion to dismiss or motion for judgment on the pleadings; and/or (ii) object to the introduction of evidence concerning the number of employees employed, if there is no allegation in this regard contained in the complaint. This will avoid any waiver of the “number of employees” argument on appeal under the “trial by consent” rule. See Fla. R. Civ. P. 1.190(b) (explaining trial by consent under Florida law); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (noting the requirement to object to the introduction of evidence to avoid trial by consent).

Plaintiffs and defendants in FWA cases should be cognizant of the case law discussed above when litigating claims under the FWA.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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