Another look at the notice requirement of the Florida Private Sector Whistleblower's Act.

• Author: Tuschman, Richard D.

The Florida private sector Whistleblower's Act, F.S. [subsections]448.101-448.105, prohibits employers from taking an adverse employment action against an employee because the employee has disclosed, threatened to disclose, objected to, or refused to participate in a violation of law.[1] More than five years after the passage of the act, however, courts are still grappling with a basic question of statutory construction: Whether the employee always has to provide an employer with written notice of the employer's alleged violation of law, and a reasonable opportunity to correct the alleged violation, before filing suit. The confusion stems from an ambiguity in the statutory language. Nonetheless, a close reading of the statute, coupled with an examination of the legislative history of the act, supports the view that employees should be required to provide their employers written notice of the alleged violation of law, and a reasonable opportunity to correct the violation, in all suits brought under the act.

Language of the Act

F.S. [sections] 448.102 prohibits private employers with 10 or more employees from discharging, suspending, or demoting an employee because the employee has.

(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor of the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.

(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.

(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

F.S. [sections] 448.103(1) specifies the procedure by which an employee may file suit under the act:

(1)(a) An employee who has been the object of retaliatory personnel action in violation of this Act may institute a civil action in a court of competent jurisdiction for relief as set forth in subsection (2) within 2 years after discovering that the alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier.

(b) Any civil action authorized under this section may be brought in the county in which the alleged retaliatory personnel action occurred, in which the complainant resides, or in which the employer has its principal place of business.

(c) 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 s. 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. (Emphasis added.)

Ambiguity of Written Notice and Opportunity to Cure Requirement

If F.S. [sections] 448.102 is read in isolation, the written notice and opportunity to cure requirement (hereinafter "notice" or the "notice requirement")...