The Florida Whistleblower Act (“FWA”) prohibits employers from retaliating against employees who object to, or refuse to participate in, the employer’s violation of a law, rule, or regulation. But most courts have held that an employee must show that he opposed an actual violation of a law, rule or regulation; a good faith belief that a violation occurred or is about to occur is insufficient.
Florida’s Fourth District Court of Appeal apparently disagrees. In Aery v. Wallace Lincoln Mercury of Lake Park (Fla. 4th DCA, July 31, 2013), the court addressed the FWA claim of John Aery, an automobile parts manager, who believed that the body shop manager was installing used parts in customers’ cars but billing the insurance company for new parts. Aery informed the general manager that this practice was in violation of industry standards and also “against the law.” Several months later the general manager fired Aery. Aery brought suit under the FWA. The trial court dismissed the case on the employer’s motion for summary judgment, and Aery appealed. One of the employer’s arguments on appeal was that Aery had failed to state a cause of action because he did not tell his supervisor what laws the body shop manager was breaking. The Fourth DCA disagreed, holding that “it was not necessary that Aery provide his employer with statutory and case law citations to support his claim of illegal conduct.” And, the court held that a plaintiff asserting a FWA claim need only show that he had a “good faith, objectively reasonable belief” that his the employer’s activities were illegal.
Aery leaves the burden of proof in a FWA claim in a state of uncertainty. The “actual violation” standard places a high burden on plaintiffs and is more favorable to FWA defendants. It is also the standard that the Florida Supreme Court seemingly endorsed in its pattern jury instructions. The “good faith, objectively reasonable belief” standard – the same standard used in Title VII cases – is significantly lower and opens the door to many more FWA claims. Which standard applies will be determined by the court in which the parties find themselves– at least until the Florida Supreme Court decides the issue.