If an employee files a whistleblower complaint against their employer, should that employee be required to show “actual” knowledge of a violation, or should a “good faith, reasonable belief” showing suffice? Not all courts agree with the answer. It’s the underlying issue, however, that is what really should give all employers pause.
On November 20, 2024, Florida’s First District Court of Appeal, in the case Gessner v. Southern Company and Gulf Power Company, held that to be protected under Florida’s Private Sector Whistleblower Act (FW), an employee must show that they “objected to, or refused to participate in, an actual violation of a law, rule, or regulation by their employer.” Just having a “good faith, reasonable belief” that unlawful activity occurred is not enough, the court ruled.
Case background
Clint Shannon Gessner worked at Gulf Power Company for nearly a decade. Over that period, Gessner claimed he received “positive performance evaluations for over nine years,” according to court documents.
Gessner further claimed in his lawsuit that he raised numerous safety concerns throughout his employment with the company. Court documents stated that he raised his concerns internally with his employer and externally with the Occupational Safety Health Administration (OSHA).
Gessner filed a lawsuit under the FWA, alleging he was terminated in retaliation for “objecting to certain practices…that he reasonably and objectively believed” violated state and/or federal laws.
His employer told a different story, alleging Gessner “consistently struggled with issues relating to performance, skills progression, and competencies as a welder mechanic.” The company further alleged that Gessner had been terminated after he used “disparaging language towards a coworker.”
Court ruling
In their summary judgment motions, Southern Company and Gulf Power Company argued that Gessner could not establish that he objected to “actual violations of laws, rules, or regulations.”
Relying on a decision by Florida’s Fourth District Court of Appeal in the case Aery v. Wallace Lincoln-Mercury, Gessner argued that he needed to present only a “good-faith, objectively reasonable belief that his employer’s actions were illegal, not proof that an actual violation occurred.”
The trial court disagreed with Gessner’s argument. In interpreting Section 448.102(3) of the FWA, the trial court held that the appropriate standard was the one established by the Second District’s decision in Kearns v. Farmer Acquisition Co. In that case, the Second District Court of Appeal held that to be protected under the FWA an employee must establish that an employer committed an “actual violation” of a law, rule, or regulation.
Finding that Gessner failed to meet that standard, the trial court granted the employers’ summary judgment motions, entering a final judgment in their favor. The court denied Gessner’s motion for rehearing.
Gessner appealed to the First District Court of Appeal. Ultimately, however, the court sided with the employers. In its ruling, the court pointed to the “plain language of the statute,” which states that whistleblower protection under the statute applies only when an employee “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 (emphasis added).”
Wider cultural lessons
In a whistleblower lawsuit such as this, it’s easy for employers to get caught up in how courts interpret a specific law or regulation, rather than learning from it as yet another whistleblower case study on the value of doing what is right and just from a corporate cultural standpoint.
Whether an employee files a whistleblower complaint with “actual” knowledge or a “reasonable belief” that a violation occurred matters not. This case serves as a reminder of the importance of proactively cultivating a speak-up culture and appropriately responding to reports of misconduct before they become costly legal disputes that can further harm a speak-up culture.
Instead, ethics and compliance professionals should consider the following best practices:
Encourage a speak-up culture. One way for employers to foster a speak-up culture is through consistent education and communication. Display posters and bulletins informing employees where and how to report concerns. Additionally, maintain and keep up-to-date a written whistleblower policy that clearly defines the type of behaviors that constitute misconduct; how and where employees can report concerns; what constitutes retaliation; and what consequences will result if an employee faces retaliation. Provide all employees with a copy of the policy, and require a signed acknowledgment that they have received it.
Establish an incident management system. Employers should have in place a centralized incident management platform where all employee reports are being captured, triaged and acted upon. An effective incident management system also should be able to automatically track the progress of investigations and consolidate relevant documentation.
Provide various avenues of reporting. Employees and others should have various options for making reports, whether over the phone, through a web intake form, or in person to a manager, human resources, or another department. Employees also should have the option to make reports anonymously, if they so choose. Anybody should have the ability to make a report, no matter where they are located in the world.
Train managers on how to properly respond to reports. Not all reports are made formally. Sometimes, an employee will make a report informally in the context of a conversation with a manager. Thus, managers should be trained on how to recognize when they have received a report and when and how to record it in the organization’s incident management system.
Take reports seriously and investigate promptly. All efforts should be made to thoroughly determine what misconduct, if any, occurred following a report. Where possible, the individual who made the report should be kept informed on what actions have been taken, while maintaining the confidentiality of all parties involved. Maintaining regular and timely communications with the reporter is a way to demonstrate to all employees that they can trust the process. If not, they will be far more likely to approach regulatory authorities rather than make a report internally.
Document communications throughout the investigation. It’s important to document each step of the investigation process, including email communications with the reporter, when not made anonymously. Documentation should show proof of not only communications that occurred between the employer and the reporter, but also what efforts were made to address the potential misconduct or violation.
Remediate any wrongful conduct. If it is determined that misconduct occurred, whether it was a violation of the company’s code of conduct and/or a violation of law, measures should be taken to immediately remediate the misconduct, and those measures should be documented.
Discipline fairly and consistently. If disciplinary measures are warranted, the employer should ensure \ all individuals involved are disciplined fairly and consistently. If disciplinary measures are not consistently applied, trust in the company’s speak-up culture will quickly and systemically dissolve. If the employer determines a report lacks merit, document that reasoning as well.
Final words
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