A Florida appellate court has held that Florida’s private-sector Whistleblower’s Act (Florida Statute Section 448.102) (“FWA”), which prohibits private-sector employers from retaliating against employees who report employers’ legal violations to the authorities or who refuse to participate in violations of the law, protects only those employees who can show an actual violation of a law, rule, or regulation.

Kearns v. Farmer Acquisition Co., d/b/a Charlotte Honda, No. 2D12-6388 (Fla. 2d DCA Feb. 11, 2015). This standard makes it easier for an employer to defend against an employee’s claim. However, the court’s interpretation conflicts with the views of a sister District Court of Appeals, making it likely the State Supreme Court or Legislature will be called upon to resolve the split. (The Second District Court of Appeals covers central Florida’s west coast from Pasco County in the north to Collier County in the south.)

In 2013, Florida’s 4th District Court of Appeals (covering the east coast from Indian River County in the north to Broward County in the south) held that an employee becomes eligible for protection under the FWA merely by showing he had a good-faith belief that the employer was violating a law, rule, or regulation. Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013). Since then, federal courts have adopted this holding.

Under the Fourth District standard, if an employee refuses to engage in an activity at work because he or she mistakenly believed the activity is illegal, the employee likely will enjoy whistleblower protections from any discipline that would arise out of not performing his or her job. This frustrates Florida status as an at-will employment state.