Whistleblowing occurs when an employee “blows the whistle” on illegal or unethical behavior being engaged in by their employer. A whistleblower reports their employer to the appropriate commission or authority which is typically a law enforcement agency.
A whistleblower legally cannot be terminated for their whistleblowing actions. Whistleblowers are also protected under specific whistleblowing laws.
An employer is prohibited from retaliating against the whistleblower by terminating them or denying their benefits. There are some common examples of reasons why whistleblowing occurs, including when an employer is:
- Violating public health laws, which leads to illness or death;
- Violating workplace safety laws;
- Violating hiring and firing laws;
- Practicing discrimination against a protected class or activity;
- Mismanaging funds; or
- Abusing their authority.
What Are the Rights of Whistleblowers?
Although there are whistleblowing laws which protect whistleblowers, there is still a chance they could be terminated from their position for a reason that is not related to their whistleblowing. For example, if the whistleblower also had a history of tardiness or absences, they may be terminated for those issues.
In a case such as that, the employer would be able to legally terminate the employee without violating any whistleblower laws. As previously noted, there are federal laws which protect whistleblowers who speak up regarding their employer breaking the law.
Because a whistleblowing employee is the witness to their employer’s questionable behavior, a whistleblower is afforded immunity against termination or retaliation after they report their employer to law enforcement. Therefore, if the whistleblower is terminated only because of their whistleblowing activities and there was no other valid reason for their termination, they may be able to sue their employer for wrongful termination.
If the whistleblower reports an activity of their employer that is not actually illegal, but the whistleblower reasonably believed that it was, that whistleblower is still protected against retaliation. The whistleblower is also protected from termination.
Which Federal Laws Protect Whistleblowers?
The federal laws which protect whistleblowers have been described as a patchwork of laws because of the various statutes and regulations which are scattered over a variety of areas of employment law. Some of the major laws which protect and govern whistleblowers include:
- The Sarbanes-Oxley Act of 2002;
- The False Claims Act;
- The Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002;
- Whistleblower Protection Act; and
- The Military Whistleblower Protection Act.
The Sarbanes-Oxley Act of 2002, also known as SOX, provides protections for whistleblowers in publicly-traded reporting corporations. SOX also requires a corporate employer to provide procedures which allow employees to make anonymous complaints.
In addition, SOX makes it a criminal offense for an employer to retaliate against a whistleblower. This offense is punishable by up to 10 years in prison and/or criminal fines.
The False Claims Act permits an individual who is not associated with the government to file a claim of fraud against the federal government or one of its agencies. Several states also have their own versions of this Act. Some important aspects of this law include that it:
- Prohibits individuals from knowingly presenting a false claim regarding payments or other financial issues to the government ; and
- Allows the individual who is filing the claim to collect a portion of the awards from proceedings, usually 15-25%. This is known as qui tam, where the individual is allowed to file on behalf of the government.
The Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002, or the No-FEAR Act, applies only to an employee of a federal agency. This Act raises the work standards for federal agencies as well as implements more strict whistleblowing mandates, which include:
- Federal agencies must notify all of their employees of their rights pursuant to whistleblower laws;
- They must also provide procedures for processing complaints;
- The agency employers must provide investigations of complaints regarding equal employment opportunity violations; and
- Federal agents who violate whistleblower policies will be subject to discipline.
The Whistleblower Protection Act was implemented in 1989 and revised in 2002. It provides protections for a whistleblower who works for the federal government as well.
The Whistleblower Protection Act led to the creation of the Office of Special Counsel (OSC). The OSC investigates complaints from federal employees. This Act, however, was recently challenged in a Supreme Court case and is currently undergoing restructuring.
The Military Whistleblower Protection Act provides protections specific to military employees. It permits members of the armed forces to complain to a member of Congress.
What is Florida’s Whistleblower’s Act?
The Florida Whistle-Blower’s Act is a law which provides Florida employees with protections when filing claims against their employers for discrimination. As previously noted, some states have their own versions of whistleblower acts which provide protections alongside the federal laws discussed above.
Who May File a Whistleblower Retaliation Complaint?
The Florida Whistleblower’s Act applies to an employee who has been hired by the State of Florida and needs relief because of employment discrimination retaliation. The Act also applies to individuals who are in the process of applying for employment with the State of Florida or or with a Flor-da operated state agency.
For employees who are not employed by the State of Florida, there are other avenues of protection and filing a complaint. These may include taking actions such as filing a complaint with the Equal Employment Opportunity Commission (EEOC).
In the alternative, a whistleblower may be permitted to file a civil lawsuit, although there are some restrictions regarding who can file a lawsuit. Whether an individual is filing with the State of Florida, a federal agency, or with a civil court, an individual will likely need an attorney for help throughout the process.
How Do I File a Complaint Under the Florida Whistleblower’s Act?
An individual will first need to file with the Florida Commission on Human Relations (FCHR). The FCHR will then conduct an investigation, mediation, and determine if the individual qualifies for a legal remedy, which may include a damages award or reinstatement to their position.
This process may also require the individual to submit whatever evidence and proof they have of the retaliation against them. They will also be required to submit a questionnaire in relation to their claim.
The filing deadline for a whistleblower claim under the Act in Florida is 60 days following the retaliation. Therefore, an individual will need to act quickly if they have a definite claim for whistleblower retaliation.
This deadline is different from the FCHR deadlines for other types of claims, such as discrimination, which may be as long as one year.
Can I File a Lawsuit Immediately If My Employer Has Retaliated against Me?
Generally, no, an individual cannot file a lawsuit immediately after their employer retaliates against them. It is important to be aware that an individual will typically be required to file a claim with the Occupational Safety and Health Administration (OSHA) prior to being permitted to file a civil lawsuit in federal court.
OSHA is a federal agency which hears cases involving discrimination and other misconduct by employers. A claim must be formally filed with OSHA 180 days following the employee learning of the retaliation.
In the event that an employer does retaliate against an individual for whistleblowing, they may be able to recover for their lost expenses, including back pay and a possible reinstatement to their former position.
The typical steps an individual should follow to obtain relief include:
- First, check with the employer to determine if there are any available remedies. Employers are now required by law to have reporting procedures, so an individual must first make the complaint with the employer;
- If an agreement cannot be reached internally, the individual’s claim must be filed with OSHA; and
- If OSHA cannot resolve the dispute, only then can the individual resort to a civil lawsuit.
Do I Need a Lawyer for Help With the Whistleblower Laws in Florida?
It is essential to have the assistance of an employment lawyer for any whistleblower issues you may have in Florida. Filing an employment-related claim of any type can also be a challenging effort.
Your attorney will be able to guide you through the filing process, assist you with evidence gathering, and help you obtain the legal remedy which applies in your case. Your attorney will also represent you in court.