Distinguishing chicken little from bona fide whistleblowers.

• Author: Adams, Nathan A., IV
• Position: Florida

Whistleblowers play a critical role in ensuring accountability in public and private entities. On the one hand, they should be protected from reprisal to ensure that mismanagement, corruption, and fraud come to light. On the other hand, protection should not be so inflexible that public and private entities cannot take legitimate adverse employment action against counterfeit whistleblowers who pose an obstacle to achieving their missions. The purpose of this article is to explore those rules most likely to distinguish bona fide whistleblowers meriting protection from frivolous ones.

The primary general purpose protection available to whistleblowers under state law is the Florida Whistleblower's Act. (1) We explore this law in comparison to the First Amendment anti-retaliation and select federal statutes offering whistleblower protection to public or private employees such as the federal Whistleblower Protection Act and the Sarbanes-Oxley Act. This article does not offer an exhaustive examination of federal statutory whistleblower protections. Instead, it discusses key federal principles as a comparison to state law and recommends select legislative changes.

Florida Whistleblower's Act

Private employees must prove six elements to state a claim under the Florida Whistleblower's Act: that the employee 1) disclosed or threatened to disclose to an agency under oath and in writing; 2) an activity, policy, or practice of his or her employer; 3) that was in violation of law, rule, or regulation; 4) that the employer retaliated against his or her because of the disclosure or threat to disclose; and 5) he or she had given written notice to the employer of its activity, policy, or practice; 6) thereby giving the employer reasonable opportunity to correct the activity, policy, or practice. (2)

Federal courts have interpreted the purposes of the private and public Florida Whistleblower's Act the same and applied the Title VII burden-shifting framework to both. (3) Florida state courts have not always done likewise and identified more permissive elements of a claim by public employees. (4) In particular, protected disclosures under the public Florida Whistleblower's Act include written notices of "[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety or welfare" and "any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor." (5)

Under a plain reading of the statute, this means that a public employee may state a claim under the act for disclosing conduct that is, in fact, legal and proper management, as long as the plaintiff suspects otherwise; by contrast, a private sector employee is required to prove conduct is illegal under the act and federal law. (6) While rule violations must present a danger to the public's health, safety, or welfare and be "substantial and specific," the statute does not on its face impose an objective standard of reasonableness on the employee to conduct an investigation into the validity of the facts alleged in the notice or to determine the legality of the action alleged. Consequently, some trial courts have not dismissed claims on this basis.

Furthermore, either malfeasance or misfeasance is grounds for a claim by a public employee under the Florida Whistleblower's Act, but only malfeasance for a claim by a private employee. The reason for this difference is unclear. The term "gross" clearly modifies mismanagement as the only actionable type of disclosure relating to management qualifying a public employee for protection. But the First District has impliedly held that "gross" does not necessarily modify misfeasance or malfeasance in general by holding that a public employee's protected disclosures may concern simple "negligent acts committed by an employee of an agency." (7)

Another important difference between the public and private Florida Whistleblower's Act is the required form and recipient of the complaint. A private employee's whistleblower notice must be under oath, whereas a public employee's whistleblower notice can be in any form, as long as it is written and signed, documents the nature of the employee's protected disclosure, and states to whom the disclosure is made. (8) Trial courts have found cursory emails sufficient. To whom the disclosure must be made under the public act is, according to at least one court, "no model of clarity." (9) There is a split of authority whether it may be made to, besides various agencies with the authority to investigate, police, manage or remedy the violation or suspected violation, an employee's supervisor. (10) The private act requires both; the private employee must give the employer the chance to correct the activity prior to reporting it to a relevant agency. (11)

The First Amendment

The First Amendment now provides less protection for public employees than Florida's Whistleblower Protection Act. The Supreme Court originally developed a three-part framework for assessing First Amendment retaliation claims by public employees: 1) that the employee must have engaged in speech on a matter of public concern; 2) the employee suffered an adverse employment action; and 3) that the speech was a substantial or motivating factor in the decision to take action against the employee. (12) The Title VII burden shifting analysis applies once this prima facie case is met; however, the Supreme Court has since refined the test multiple times. (13)

In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court required the employee first to show that his or her speech addressed a matter of public concern or public importance. In Pickering v. Bd. of Educ., 391 U.S. 563 (1968), the court required lower courts to balance whether the employee's free speech rights outweighed the government's interest in an efficient, undisrupted workplace. In Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410 (1979), the Supreme Court held that private conversations can sometimes involve matters of public concern. (14) In Waters v. Churchill, 511 U.S. 661 (1994), the court held that a public employee can be dismissed, as long as the public employer conducts the same type of reasonable investigation required of a private employer and determines (even erroneously) that the content of the employee's speech is unprotected. (15) In City of San Diego v. Roe, 543 U.S. 77 (2004), the court held that sexually explicit public employee speech during nonwork hours is not a matter of public concern. (16)

Most recently, in Garcetii v. Ceballos, 547 U.S. 410 (2006), a bare majority of the court further narrowed potential First Amendment claims by holding that "when public...