Florida Whistleblower's Act Protects Employees of the Government and Companies that Contract with Florida Governments

posted by Neil Klingshirn  |  Aug 17, 2009 6:33 PM [EST]  |  applies to Ohio

The Florida legislature enacted the Florida whistleblower's Act, Fl. Stat. 112.3187 in 1986 to prevent state and local government agencies ("Agencies,") and the companies that contract with Agencies ("Contractors"), from taking retaliatory action against employees who report violations of law by the Agency or Contractor. The Florida Whistleblower's Act also prevents Agencies and their contractors from taking retaliatory action against any person (i.e., not just employees) who disclose information alleging:

• improper use of governmental office,
• gross waste of funds, or any other abuse or
• gross neglect of duty on the part of an agency, public officer, or employee.

Agency and Gross Mismangement Defined

An "agency" includes:

• any state, regional, county, local, or municipal government entity, including the  executive, judicial, or legislative sections of the government;
• any official or officer of the government entity; and
• any public school, community college, or state university.

"Gross mismanagement" means:

• a continuous pattern of managerial abuses,
  
• wrongful or arbitrary and capricious actions, or
  
• fraudulent or criminal conduct that may have a substantial adverse economic impact.

The Florida Whistleblower's Act does not protect employees or persons who discloses false information, which they know is false.

Protected Types of Whistleblowing

Florida employees are protected from retaliation for disclosing the following types of information:

1. Any violation or suspected violation of any law, rule, or regulation, committed by an Agency or contractor that creates and presents a substantial and specific danger to the public's health, safety, or welfare.
2. Any 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 or agent of an agency or independent contractor.
   

The Florida Whistleblowers' Act protects only information disclosed to government agencies authorized to investigate, police, manage, or otherwise remedy the violation or act.  Government agencies authorized to investigate and remedy violations of law or acts of fraud and abuse include:

• the Office of the Chief Inspector General,
  
• an agency inspector general or
  
• the employee designated as agency inspector generals under Florida's Commission on Human Relations, and
  
• the whistle-blower's hotline.
  

However, for disclosures concerning a local governmental agency or school, the employee or person must disclose the information to the chief executive officer or other appropriate local official.

Employees and Persons Protected by the Florida Whistleblowers' Act.

The Florida Whistleblowers' Act protects employees and other persons who disclose information:

• on their own initiative, so long as in a written and signed complaint;
  
• who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity;
  
• who refuse to participate in any adverse action prohibited by this section;
  
• who initiate a complaint through the whistle-blower's hotline or the hotline of the Medicaid Fraud Control Unit of the Department of Legal Affairs; or
  
• employees who file any written complaint to their supervisory officials;
• employees who submit a complaint to a designated inspector general or to the Florida Commission on Human Relations.
  

The Florida Whistleblowers' Act does not cover persons in the custody of the state correctional system.

Remedies

Victims of retaliation for whistleblowing may may file a complaint with an administrative agency with authority to investigate the complaint. Once the agency concludes its investigation, the whistleblower may file suit within 180 days of the administrative agency conlcuding its investigation.

Administrative agencies with authority to investigate whistleblowing complaints include the Florida Commission on Human Relations, a local governmental authority established to provide an administrative procedure for handling complaints or an authority hired to provide such a procedure.

If the local government authority does not have an administrative agency with authority to investigate the complaint, a whistleblower may, after exhausting all available contractual or administrative remedies, file suit in court within 180 days after the prohibited action.

Relief

Employees or other persons who disclose protected information may, upon prevailing in a Florida Whistleblowers' Act case, obtain:

• Reinstatement to the same position held before the adverse action was commenced, to an equivalent position or reasonable front pay as alternative relief.
• Reinstatement of the employee's full fringe benefits and seniority rights, as appropriate.
• Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.
• Payment of reasonable costs, including attorney's fees, to a substantially prevailing employee, or to the prevailing employer if the employee filed a frivolous action in bad faith.
• Issuance of an injunction, if appropriate, by a court of competent jurisdiction.

In some cases an employee can be reinstated before the complaint process concludes. A court or the Florida Commission on Human Relations can order temporary reinstatement if:

• an employee complains of being discharged in retaliation for a protected disclosure and
• the Court or Commission determines that the disclosure:
  
• was not made in bad faith or
  
• was made for a wrongful purpose, or occurred after the Agency disciplined the employee for performance problems. 
  

Temorary reinstatment is not available to an employee of a municipality.

Agency and Contractor Defenses

An agency or contractor may defeat an otherwise valid Florida Whistleblower claim if it can prove that it took the adverse action against the employee or person for other than the whistleblowing conduct, nd would have taken the adverse action absent the employee's or person's protected action.

External Links

Links to external sites with additional information about this topic.

• Florida Whistleblowers' Act, Section 112.31187

posted by Neil Klingshirn  |  Aug 17, 2009 6:33 PM [EST]  |  applies to Ohio