Florida workers' whistles are not silenced.

• Author: Kyres, Catherine A.
• Position: Florida

Private-sector employers and employees have been awaiting the Florida Supreme Court's interpretation of the written notice provisions contained in Florida's Whistle Blower's Act, F.S. [subsections] 448.101448.105 (1995). On January 13, 2000, the Florida Supreme Court held in The Golf Channel v. Jenkins, No. SC93426, 25 Fla. L. Weekly S31, that an employee does not have to provide his or her employer with written notice of the employer's unlawful activity in order to maintain a cause of action for retaliatory job action when the employee's complaint is predicated on assistance, [sections] 448.102(2), or objection, [sections] 448. 102(3), whistleblowing.

Wherein Lay the Rub

Under the Whistle Blower's Act, an employer is liable to its employee for "retaliatory personnel action"(1) taken against the employee based on the employee's participation in any one of three types of protected whistle-blowing conduct.(2) F.S. [sections] 448.102. The three types of protected whistle-blowing conduct involve:

* (Disclosure) [sections] 448.102(1): An employee who discloses or threatens to disclose the employer's unlawful activity to a government agency (however, an employee is not protected in this instance if he or she did not provide the employer with written notice and an opportunity to cure before the disclosure takes place);

* (Assistance) [sections] 448.102(2): An employee who assists an agency with an ongoing investigation of the employer's alleged unlawful activity;

* (Objection) [sections] 448.102(3): An employee who objects or refuses to participate in the employer's unlawful activity.

In Golf Channel, employee Jenkins filed an objection-based whistle-blower claim under [sections] 448.102(3). He alleged that his firing was in retaliation for his verbal objections to supervisors of Golf Channel personnel's unlawful activities, namely sexual conduct committed in the workplace, fraud on vendors, and acts of plagiarism and falsified budget reports. Jenkins' complaint was dismissed by the trial court for Jenkins' failure to give Golf Channel written notice of his objections. The Fifth District reversed, holding that written notice is not a prerequisite to maintaining assistance or objection-based whistle-blower claims; it is a prerequisite of disclosure whistleblower actions only. Jenkins v. Golf Channel, 714 So. 2d 558 (Fla. 5th DCA 1998).

As stated above, [sections] 448.102 governs the types of claims which the act recognizes. Subsection 448.102(1) governing disclosure whistleblowing contains a written notice and opportunity to cure condition. The condition reads, "[h]owever, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice." F.S. [sections] 448.102(1) (emphasis added).

Section 448.103 of the act, captioned "Employee's remedy; relief," governs the procedural process and available remedies. Section 448.103(1) sets forth a limitations provision, a venue provision, and the debated written notice requirement. Section 448.103(1)(c) provides:

An employee may not recover in any action brought pursuant to this subsection if he failed to notify the employer about the illegal activity, policy, or practice as required by Sec. 448.102(1) or if the retaliatory personnel action was predicated upon a ground other than the employee's exercise of a right protected by this act." [sections] 448.103(1)(c) (emphasis added).

Employers have argued that the act unambiguously(3) requires employees to give their employers written notice and an opportunity to cure the alleged unlawful activity in order to maintain any type of whistle-blower claim.(4) Florida employees have argued that [sections] 448.103(1)(c) creates an ambiguity in the act, warranting judicial interpretation that the written notice requirement applies to disclosure claims only.

The Florida Supreme Court accepted jurisdiction in Golf Channel based upon several district courts of appeal's conflicting interpretations of the act's written notice requirement. The Fifth District in Jenkins v. Golf Channel agreed with the Third Circuit's conclusion in Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d DCA 1995), that the act only required written notice in disclosure claims; whereas the Second District has maintained that written notice is due the employer in order to bring any type of whistleblower claim. Potomac Systems Engineering, Inc. v. Deering, 683 So. 2d 180 (Fla. 2d DCA 1996);(5) and see citing cases, McEowen v. Jones Chem., Inc., 745 So. 2d 991 (Fla. 2d DCA 1999); Judd v...