Whistleblower Defense


Florida has two main whistleblower statutes, one that covers employees employed with a private-sector employer, Florida Statutes § 448.101 et seq., and a different statute that applies to public-sector employees, Florida Statutes § 112.3187. The gist of the statutes are that if the employee complains about or opposes the violation of a law, rule, or regulation, and thereafter if the employer takes adverse employment action against the employee (e.g., terminates the employee because of the complaint or opposition) the employee can sue the employer under the statute. The main difference between the private sector and public sector statutes is that the public-sector statute requires that the employee have actually complained or expressed his or her opposition in writing to the department head or highest ranking official employed by the entity.

The types of damages that are available under the statutes are compensatory damages (for pain and suffering from emotional distress from the adverse empoyment action), back pay (the back wages that the plaintiff lost out on because of the adverse employment action), and attorney's fees and costs.

There are several federal laws that also protect whistleblowers including the qui tam statute and Sarbanes-Oxley. Proving claims under these statutes is similar, though not identical, to the Florida statutes.

The firm has extensive experience litigating cases under these statutes. In short, if one of your employees is complaining about something that the company is doing that is illegal, you need to immediately call us for guidance.


Representative Cases

Portales v. Another Beautiful Corporation, 2011 WL 1043663 (Fla. Cir. Ct. 2011)

The firm represented Defendant, Another Beautiful Corporation, in a case alleging pregnancy discrimination and whistleblower retaliation (for allegedly being fired after complaining about the employer wrongly recording telephone calls between sales associates and potential customers, pursuant to the Florida Civil Rights Act, Florida Statutes § 760.01 et seq., and Florida's Whistleblower Act, Florida Statutes § 448.101 et seq. The Defendant runs a successful modeling school and agency. The Plaintiff sued for compensatory damages, punitive damages, back pay, front pay, attorney fees, and costs.

The firm defended the charge of discrimination filed with the EEOC, and obtained a "no-cause" determination (that is, a legal ruling from the administrative agency that there was no discrimination that occurred) from the agency investigating the plaintiff's allegations. This served to bar the plaintiff from litigating her pregnancy discrimination claim in court. Discovery revealed that while represented by counsel, the plaintiff told the EEOC that the sole reason for her termination was the fact that she was pregnant, and that she never even filed a charge of discrimination with the Florida Commission on Human Relations which is a prerequisite to bringing a claim under FCRA.

Discovery also revealed that there was nothing unlawful about the recording of the telephone calls (they contained the admonition that "this telephone call may be recorded..."), and the plaintiff did not even complain about any telephone calls being recorded until February, 2009, but she learned that she was going to be replaced in November, 2008.

The court granted summary judgment in favor of the defendant for all of the reasons listed and others. The defendant is deciding whether to seek attorney fees from plaintiff's counsel for the filing of a frivolous lawsuit. The plaintiff appealed the grant of summary judgment, but the appellate court affirmed the order holding that the case had no merit and noting that the plaintiff did not preserve the error she was seeking to appeal. See Portales v. Another Beautiful Corp., 121 So. 3d 562 (Fla. 3rd DCA 2012).

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