"To stand in silence when they should be protesting makes cowards out of men."
As an employee, it is reasonable that you have a fairly comprehensive understanding of the business operations of your employer as they relate to your own duties and responsibilities. In the normal courses of business, this information should be based on legal, moral, and regulated business practices that are focused on advancing the goals of the company while remaining in-line with the laws and regulations that govern the industry you are involved in, as well as general business practices. Sometimes, though, you may become aware of a policy, practice, or activity of your employer that you in good faith believe is illegal and in violation of applicable law, rule, or regulation. Significantly, regardless of whether you object or complain internally your employer about the conduct you believe is illegal or you make an external report to a government agency about the illegal activity, this is all known as “whistleblowing.” Becoming a “whistleblower” can be an extremely stressful decision to make, especially when considering the possible consequences of your actions and the retaliation you may face for doing the right thing.
You can rest easier knowing that you are provided a variety of protections by both the Florida and federal government if you choose to object to or report illegal activities by your employer. In Florida, the state law known as the “Florida Whistleblower Act,” F.S. §448.102, provides express protections and remedies for “whistleblowers” who work for employees in the private sector. While it may be difficult to parse some of the information in this act, as well as the variety of other state and federal protections that cumulatively provide employees with protection from unlawful retaliation, working with an attorney is one of the best ways to understand your rights in plain terms. Years of experience protecting and fighting for the rights of whistleblowers is a primary reason to work with the Law Office of Keith M. Stern, P.A.
Consult a Florida Whistleblower Lawyer Today
Read more below to get a better idea about what constitutes a whistleblower, how a whistleblower is protected, and to understand more about how we can help you as soon as possible. Contact Keith M. Stern for a free consultation so that we can begin work immediately and provide you with the legal support that you deserve during this difficult time. Deciding to take steps as a whistleblower takes courage and trust in your own moral compass, and you should not fear retaliation for taking such an honorable and vital step to help enforce the law.
It’s well known that Florida is an “at-will employment” state. That means your employer can, in general, terminate your employment at any time, with no notice, and for any reason. However, if you’re working directly below a ceiling tile that is old and moldy, you could be sitting under a health code violation. What’s more, it could be negatively impacting the air quality of the office, increasing your risk of illness, and/or outright making you sick. Because Florida employers can fire their employees-at-will, you might think that reporting this potential health risk would be a sure-fire road to the unemployment line.
But that’s not the case. Despite Florida’s “at-will” status, employees who object to unsafe work conditions and/or make even an internal complaint about such conditions are protected against retaliatory actions.
Similarly, if you were recently fired in retaliation for filing workers’ compensation benefits or for reporting illegal activity, you likely have grounds to file a lawsuit against your former employer.
In order to discuss whistleblower retaliation, it is important to understand what a whistleblower is first. Put simply, a whistleblower is an employee who objects to or reports any sort of illegal practice by their employer–even through an internal complaint directly to the employer itself. We will discuss some common situations that lead to whistleblowing below. The important thing to know for this overview is that a whistleblower is an individual who has, in good faith, objected to, refused to participate in, or reported an illegal activity of his or her employer.
Florida Statutes §448.102 protects employees in the private sector from retaliation. Under the Florida Whistleblower Act, a companies that have ten (10) or more employees are prohibited from taking any adverse action against an employee who has (i) objected to; (ii) refused to participate in; or (iii) disclosed (i.e., reported) an activity, practice, or policy of the employer that the employee in good faith believes is in violation of the law.
More specifically, under F.S. §448.102, an employer may not take any retaliatory personnel action against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
(3) 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.
Once a whistleblower objects to, refuses to participate in, or submits a complaint about the employer’s illegal activity, it may soon become apparent that an uncomfortable situation develops in the workplace. However, any sort of retaliation against a whistleblower for an OSHA violation, for example, is strictly prohibited and is a basis for legal action.
If a company takes steps to dismiss, discipline, or take any other adverse personnel action against an employee for “blowing the whistle,” the employer faces significant liability exposure for such unlawful retaliation.
The following are just a few examples of reasons that someone may decide to become a whistleblower.
One of the most obvious reasons to submit an internal complaint objecting to or an external report of your employer’s behavior to a government agency is if the employer is engaging in illegal activity. Since the body of laws in the United States are so comprehensive, this could entail any number of activities that vary from one employee’s situation to another.
Discrimination can take place on many levels in a business, whether it is discriminatory hiring practices, limiting promotions, refusing to work with certain protected classes that are addressed under the Florida Civil Rights Act, and a variety of other situations that we will be happy to discuss with you in greater detail during your initial consultation.
Sexual harassment is defined by the United States Equal Employment Opportunity Commission as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature,” but the specifics of the situation will give us better context into determining the nature of the harassment that you or your coworkers may be experiencing. Keep in mind that teasing is not protected by any laws, but the line between teasing and harassment can sometimes be unclear or muddy, leading victims to feel uncertain about their rights.
Accounting fraud, or “cooking the books,” is an illegal activity that some companies engage in for a variety of financial and marketing reasons. In some instances, a publicly-traded company may provide inaccurate financial reports to their shareholders or for public disclosure in order to present a different picture of the company’s performance than is actually happening. One of the most famous cases of accounting fraud in the United States involved investor Bernie Madoff and his investment firm Bernard L. Madoff Investment Securities LLC, who tricked investors out of nearly $65 billion dollars while operating the largest Ponzi scheme in U.S. history.
Wage violations are an unfortunate reality for many employees in the United States, and can range from things like minimum wage violations for tipped earners to things such as failure to pay overtime, forcing employees to work “off the clock,” and a variety of other situations that ultimately amount to the employer stealing money from their employees. Because of the power dynamic between an employee and their boss, based largely around financial security, an employee may feel powerless to take action against these violations for fear of losing their financial stability, but luckily there are many protections and penalties for this behavior.
In this regard, the Fair Labor Standards Act (FLSA) contains its own anti-retaliation provision at 29 U.S.C. §215(a)(3), which provides that “it shall be unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act…” As a result, if you have sought unpaid minimum or overtime wages from your employer and the company retaliates against you, you may have a separate cause of action for retaliation against the company for unlawful retaliation.
Retaliation is not limited to just termination. Retaliatory action can include demotion, reductions in pay, denial of a promotion, an alteration of benefits or change of job assignment, or harassment. Repeated harassment or any impeding of an employee’s ability to do their job in response to a whistleblower action can lead to severe legal ramifications.
Some actions that are protected under Florida’s employer retaliation laws are:
The law protects employees even in instances where their whistleblowing claim itself against an employer may be dismissed, provided that the complaint and/or objection or report was made under a good faith belief that the activity was believed to be illegal. So, even if your employer comes out of an investigation unscathed, they are still legally barred from taking retaliatory action against you.
Just as there are many different reasons for someone to report their employer’s activities to an agency such as the SEC, there are as many types of retaliatory actions that the employer (or individuals within the company) may take in order to “punish” a whistleblower for their actions. Sometimes this retaliation may be subtle in order to obscure the true intention, but other times it may be much more overt. If you believe you may be a victim of retaliation from whistleblowing, contact the Law Office of Keith M. Stern, P.A. for your free initial consultation where we will be able to explore your specific situation in detail.
This is likely the most overt type of retaliation that a whistleblower may face, even if their employer works hard to try and avoid a link between the whistleblowing activity and the termination. The employer may do this by setting unrealistic performance expectations, overstating performance issues, or assigning tasks that are set up for the employee to fai. However, there are other times that an employer may simply just outright terminate the whistleblower’s employment or demote the employee from their current position without warning or justification.
If you have been terminated, or you believe that your employer is beginning to “collect” negative evaluations or documentation in an effort to support an eventual termination, you should consult with an attorney to learn more about your rights.
Your employer may attempt to deny you certain employment benefits as a form of retaliation, which could include stripping you of paid time off or vacation days or denying an increase in any benefits that you are entitled to along with other employees. These measures often can be undertaken subtly in order to make it less apparent that an employer is engaged in a campaign of unlawful retaliation.
It can be difficult to determine whether or not you have been denied or overlooked for a promotion as a result of a simple business decision as compared to a retaliatory act. This lack of clarity is one reason that such actions are often a preferred method of retaliation by employers against whistleblowers, but with the assistance of experienced labor and employment counsel, your rights can be protected.
Being transferred to a far away location in order to cause discomfort for you or your family is another example of whistleblower retaliation. This could be a location transfer that requires you to move, extends your commute unreasonably, or denies you the ability to transfer teams, roles, or locations in order to support your typical work life. Much like being overlooked or denied a promotion, it is important that we are able to go through every detail of these situations in order to obtain a comprehensive overview of your situation to help prove retaliatory action against you is illegal.
Instead of simply denying promotions or firing a whistleblower, an employer may choose to focus on making the work environment so hostile and uncomfortable for the whistleblower that the employee considers leaving his or her job. In the event an employee leaves “voluntarily,” the employer hopes this will shield the company from being held accountable for unlawful retaliation. However, if you are a whistleblower and you believe your employer has embarked on a campaign of harassment after you made the courageous decision to object to or report illegal activity, you should contact the Law Office of Keith M. Stern, P.A. to speak with an attorney immediately.
There are a variety of penalties that a company may face if they are found to have retaliated against a whistleblower, including awards issued by the SEC in certain instances. Some other possible penalties that your employer may face (that may ultimately become part of monetary recovery you can seek as a wronged whistleblower) include the following:
If it is determined that your income was impacted as a result of retaliation, then you are entitled to seek the recovery of lost or reduced wages in the form of back pay. The amount of back pay that you may be entitled to recover will depend on your specific situation and the amount of your past versus current earnings.
If you were fired from your job and you obtained new employment but at a rate of pay that is less than your prior earnings, you may be able to seek the difference in income from your former employer to compensate for these losses.
In addition to the wage losses you may seek if you have been subjected to retaliation, you may also have a right to seek the recovery of compensatory damages for emotional distress and psychological suffering. This could include damages for stress or anxiety from a hostile work environment or termination and depression after being fired or retaliated against by your employer. Calculating these damages is more complicated than income-based damages, which is why it is important that you consult with an experienced employment attorney as part of working to get the justice that you deserve.
Some of the laws which prohibit retaliation also provide for the imposition of punitive damages which are intended to punish an employer and discourage any future retaliation by a company against you or other whistleblowers. However, not all statutes allow for the recovery of punitive damages, so please speak with the Law Office of Keith M. Stern, P.A. about your specific remedies.
If you believe that your employer has illegally retaliated against you, contact the Law Office of Keith M. Stern, P.A. for a free consultation.
The following are some of the common questions that we will be able to go over during your free initial consultation. Likewise, we will work together over the course of the following days and weeks to come up with a clear action plan for your case, such that these initial questions are intended to provide you an overview until we are able to speak directly about your experience.
Since retaliation and whistleblower cases are so specific, we will need to go through all of the relevant facts and details in order to understand the best possible approach and the evidence that needs to be gathered to help prove your case. We have substantial experience over the past nineteen years working on complex whistleblower and retaliation cases in Miami and throughout Florida, so we will be able to provide you with direction and input on our opinion of your specific circumstances.
Much like the evidence needed to prove a retaliation or whistleblower case, there are many different variables about your specific employment situation, such as your income, benefits, length of any period of unemployment, and the laws at issue in your claim. Therefore, we will need to work carefully and methodically to assess the range of your potential damages and recovery.
If we can prove that you left your position due to the retaliatory actions of your employer after whistleblowing, then we will be able to seek the appropriate damages for the situation. As a general rule, however, because a “constructive discharge” is a very difficult claim to prove under the law, it is not recommended that you quit your job or leave voluntarily. For more specific legal advice and before taking any steps which an employer could argue constitute a resignation or job abandonment, contact the Law Office of Keith M. Stern, P.A. for a consultation.