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What Disclosures are Protected Under the Whistleblower Protection Act?

What is a whistleblower? Well, a whistleblower is an individual who reports information about a wrongdoing committed by an organization or business. Whistleblowers help to keep powerful businesses and unscrupulous employers in check by making sure that the public is protected against illegal activity that threatens the public safety, health and financial well-being.

Quite often such individuals are employees or former employees who have witnessed dishonest or unlawful activity at their workplace and they bravely step forward to warn the public or proper authorities. Whistleblower protections at both the federal and state level exist to protect whistleblowers and encourage potential whistleblowers to come forward without fear of retaliation. Stepping forward is never easy, but it is easier once an employee knows that the law is on their side. For Florida whistleblowers who have already experienced various forms retaliation—such as termination, demotions, withholding of pay, lack of advancement, and threats of legal action—should contact an employment attorney right away to learn more about their rights.

Whistleblower laws play a critical role in keeping employers honest and ensuring public health and safety. Various federal and Florida state laws have been enacted to protect those who report an employer’s unlawful conduct and some laws even provide compensation to whistleblowers, such as special damages, double back pay, and legal fees. However, whistleblower regulations are very detailed, and time is of the essence because specific the statute of limitations limiting when a legal action must start can cut off these important protections. For instance, under some state and federal laws, cases can only be filed within 30 days!

If you have information that your employer is violating laws or regulations, or if your employer is causing danger to public health and safety, you may feel obligated to report this information. If you do so, then you may be considered a whistleblower and you need to learn more about your rights under federal and Florida law. Speaking out about illegal activity on the part of your employer is a courageous act, but it can sometimes lead to negative results such as retaliation, or even termination. If you feel bold enough to speak out, or you simply want to learn more about rights, please give our Miami whistleblower attorneys a call, at 1-305-946-1884.

Federal Whistleblower Protections

A whistleblower can report illegal or wrongful behavior committed by a government or non-government organization. However, to secure the protections available, a qualified person reporting must be consistent with the requirements of the applicable law. This includes filing the disclosure with designated organizations and within specified timeframes. Otherwise, the whistleblower may lose the opportunity for redress. Federal laws with whistleblower protection law include those below and they all provide specific reporting mechanisms and statutes of limitations, and each applies in specific circumstances.

Clean Air Act (CAA) Commercial Motor Vehicle Safety Act (CMVSA) Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) Department of Defense Authorization Act of 1987 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) Energy Reorganization Act of 1974 (ERA) Fair Labor Standards Act of 1938 (FLSA) FDA Food Safety Modernization Act (FDA Modernization Act) Federal Mine Safety and Health Act (FMSHA) Federal Water Pollution Control Act of 1972 (FWPCA) Longshore and Harbor Workers’ Compensation Act (LHWCA) Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) Occupational Safety and Health Act of 1970 (OSH Act) Safe Drinking Water Act (SDWA) Sarbanes-Oxley Act of 2002 (SOX) Solid Waste Disposal Act (SWDA) Surface Mining Control and Reclamation Act (SMCRA) Toxic Substances Control Act (TSCA) Whistleblower Protection Act (WPA)

Florida Whistleblower Protections

As mentioned earlier, there are also specific Florida protections for public and private employers employees who speak up about wrong doing. Under the Florida Public Whistleblower’s Act (“FPWA”), the Florida legislature intended to prevent retaliatory actions against employees and persons who make certain disclosures to an appropriate agency. A basic claim of whistleblower retaliation under FPWA consists of three elements:

1) Plaintiff engaged in a statutorily protected disclosure

2) Plaintiff suffered an adverse employment action; and

3) There is a causal connection between the two events.

(1) an employee who discloses or threatens to disclose the employer’s unlawful activity to a government agency (as long as the employee has provided written notice and an opportunity to cure to the employer before disclosing the unlawful activity to the government);

(2) an employee who assists an agency with an ongoing investigation of the employer’s alleged unlawful activity; and

(3) an employee who objects or refuses to participate in the employer’s unlawful activity.

1) Plaintiff engaged in a statutorily protected disclosure.

Under the Florida law, there are 5 ways an employee can engage in statutorily protected activity:

• Disclosure of information on the employee’s own initiative in a written and signed complaint;
• Participation in an investigation, hearing, or other inquiry conducted by an agency or federal government entity;
• Refusal to participate in any adverse action prohibited by this act;
• Initiation of a complaint through the whistleblower’s hotline or the hotline of the Medicaid Fraud Control Unit of the Department of Legal Affairs; or
• Filing any written complaint to the employee’s supervisory officials, to the Chief Inspector General in the Executive Office of the Governor, to the employee designated as agency inspector general under § 112.3189(1), or to the Florida Commission on Human Relations.

Under Florida Stat. § 112.3187(5)(a) and (b), FPWA includes a “violation or suspected violation of law committed by another employee, agent of an agency, or independent contractor, which creates and presents a substantial and specific danger to the public’s health, safety, or welfare,” and “an act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee, agent of an agency, or independent contractor.”

2) Plaintiff suffered an adverse employment action.

Under Florida Stat. § 112.3187(3)(c), FPWA defines adverse action broadly, including all actions that negatively alter the terms and conditions of an employee’s employment. For instance, adverse employment actions may include a termination, demotion, denial of raises or bonuses, discipline, transfers, and other actions.

3) There is a causal connection between the two events.

Moreover, just like other employment actions, there is a causation requirement, meaning that the employee must show that the employer or person taking adverse action against the employee had knowledge of the protected activity and there is temporal proximity between the adverse action and adverse action.

A violation or suspected violation of law committed by another employee, agent of an agency, or independent contractor, which creates and presents a substantial and specific danger to the public’s health, safety, or welfare. Stat. § 112.3187(5)(a). An act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee, agent of an agency, or independent contractor. Stat. § 112.3187(5)(b).

The first step in proving a basic case of whistleblower retaliation is coming forward. Speaking out about an employer’s illegal activity is a bold act and can be risky. However, whistleblower acts can sometimes lead to an employee’s retaliation, or termination of your employment. Objecting to or reporting such activities should not lead to a whistleblower’s firing… but if it does the Derek Smith Law Group’s labor & employment lawyers can often help.

Contact Our Experienced Miami Employment and Whistleblower Law Firm

If you have been wrongfully terminated or subjected to retaliation for reporting the misconduct or illegal activity of your employer in Miami or South Florida, it is critically important that you seek legal advice to learn your rights and to seek any available compensation. If you believe that your rights under the federal or Florida whistleblower law has been violated, you should contact an employment lawyer to learn more about your rights. Our Miami attorneys have years of experience litigating claims of retaliation and whistleblower protections. Working together with our New York City, New Jersey, and Philadelphia employment and discrimination attorneys, we have recovered millions on behalf of our clients because of their protected status under Federal and state law. If you feel you have been discriminated against or sexually harassed, please give our attorneys a call, at 1-305-946-1884, for your free consultation. Andrew S. Alitowski, a partner at Derek Smith Law Group, PLLC, and Kelly O’Connell, the Miami office’s attorney manager, are both admitted to practice in Florida and New York and look forward to helping you!

Our Florida office is located in downtown Miami and serve individuals and employees throughout Miami-Dade County, Broward County, Palm Beach County, Monroe County, Orange County, in Orlando, Naples, Sarasota, Tampa, Jacksonville, Fort Myers, Cape Coral, Gainesville, and locally in Miami, Miami Beach, Brickell, South Miami, Miami Lakes, North Miami, North Miami Beach, South Beach, Coral Gables, Aventura, Kendall, Doral, Hialeah, Florida Keys, Key West, Fort Lauderdale, Hollywood, Davie, Pembroke Pines, Plantation, Sunrise, Coral Springs, Pompano, West Palm Beach, Palm Beach, Boca Raton, Palm Bay, and, Florida.