Another look at the notice requirement of the Florida Private Sector Whistleblower's Act.

The Florida private sector Whistleblower's Act, F.S. [subsections]448.101-448.105, prohibits employers from taking an adverse employment action against an employee because the employee has disclosed, threatened to disclose, objected to, or refused to participate in a violation of law.[1] More than five years after the passage of the act, however, courts are still grappling with a basic question of statutory construction: Whether the employee always has to provide an employer with written notice of the employer's alleged violation of law, and a reasonable opportunity to correct the alleged violation, before filing suit. The confusion stems from an ambiguity in the statutory language. Nonetheless, a close reading of the statute, coupled with an examination of the legislative history of the act, supports the view that employees should be required to provide their employers written notice of the alleged violation of law, and a reasonable opportunity to correct the violation, in all suits brought under the act.

Language of the Act

F.S. [sections] 448.102 prohibits private employers with 10 or more employees from discharging, suspending, or demoting an employee because the employee has.

(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, 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 of 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.

F.S. [sections] 448.103(1) specifies the procedure by which an employee may file suit under the act:

(1)(a) An employee who has been the object of retaliatory personnel action in violation of this Act may institute a civil action in a court of competent jurisdiction for relief as set forth in subsection (2) within 2 years after discovering that the alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier.

(b) Any civil action authorized under this section may be brought in the county in which the alleged retaliatory personnel action occurred, in which the complainant resides, or in which the employer has its principal place of business.

(c) An employee may not recover in any action brought pursuant to this subsection if he failed to notify the employer about the illegal activity, policy, or practice as required by s. 448.102(1), or if the retaliatory personnel action was predicated upon a ground other than the employee's exercise of a right protected by this Act. (Emphasis added.)

Ambiguity of Written Notice and Opportunity to Cure Requirement

If F.S. [sections] 448.102 is read in isolation, the written notice and opportunity to cure requirement (hereinafter "notice" or the "notice requirement") seems to apply only to subsection (1). On the other hand, paragraph (c) of subsection 448.103(1) (hereinafter "paragraph (c)") provides that "[a]n employee may not recover in any action brought pursuant to this subsection [448.103(1)] if he or she failed to notify the employer about the illegal activity, policy, or practice as required by s. 448.102(1)." Thus, notice appears at first glance not to be required if the employee is traveling under subsections 448.102(2) or (3); whereas, under paragraph (c), notice seems to be required in all cases brought under the act.

A Logical Interpretation

Obviously, the language of the act is not a model of clarity. Nonetheless, a close reading of the statute affords only one logical interpretation of the written notice requirement, to wit: Because subsection 448.103(1) is the only subsection in the act that specifies the procedure by which an employee may bring suit under the act, it must be concluded that despite the lack of a notice requirement in subsections 448.102(2) and (3), paragraph (c) of subsection 448.103(1) mandates notice in all actions brought under the act, regardless of which subsection of 448.102 the employee is traveling under. If this were not the case--if the language in paragraph (c) regarding notice were merely a reminder that notice is required only if the employee is traveling under subsection 448.102(1) (as opposed to subsections 448.102(2) or (3))--then paragraph (c) would be superfluous, since there is already a notice requirement in subsection 448.102(1). Such an interpretation of the notice requirement would run afoul of the rule of statutory construction,[2] ut res magis valeat quam pereat, which requires a court to presume that the legislature put every provision in a statute for a purpose, and to construe the statute to give effect to each provision of the statute.[3]

As a practical matter, such an interpretation of the notice requirement would also render subsection 448.102(1) superfluous. Subsection 448.102(1) protects employees who disclose, or threaten to disclose, a violation of law under oath, in writing, to an appropriate governmental agency if the employee first gives his or her employer written notice of the alleged violation of law and a reasonable opportunity to cure the alleged violation.[4] If employees could gain protection under subsection 448.102(3) merely by "objecting to, or refusing to participate in" a violation of law--without giving their employers written notice and an opportunity to cure the alleged violation--then there would never be any reason for employees to follow the more stringent procedures of subsection 448.102(1). Subsection 448.102(3) would effectively swallow subsection 448.102(1). Logic suggests that the Florida Legislature could not have intended such a result. As discussed below, the legislative history of the act suggests the same conclusion.

Legislative History of the Act

To the extent that the language of a statute is ambiguous, an examination of its legislative history is appropriate.[5] An examination of the legislative history of the Whistleblower's Act suggests that the Florida Legislature did, in fact, intend that employees provide notice to their employers before pursuing a claim under the act.

Specifically, the Senate staff analysis[6] of Senate Bill 74, which was enacted as the Florida private sector Whistleblower's Act, provides as follows:

An employee subjected to an adverse personnel action in violation of this act may seek judicial relief within one year of discovery that the alleged retaliatory action was taken. Recovery is limited in such civil action to situations in which the employee notified the employer of the illegal activity and the retaliatory action is predicated on the act.[7] (Emphasis added.)

Significantly, the Senate staff analysis also makes reference to "a similar statute, s. 112.3187, F.S.... [which] applies only to public employees."[8] Under that statute, the Florida public sector Whistleblower's Act, an employee is first required to report the alleged violation of law to an appropriate agency or federal government entity.[9] The legislative history of Senate Bill 74 leaves little doubt that the legislature intended that a similar reporting requirement apply to any employee filing suit under the private sector Whistleblower's Act.

Case Law Interpreting the Notice Requirement

To date, there are three reported decisions in which courts have directly considered the parameters of the written notice and opportunity to cure requirement.[10] The holdings in these cases, however, are not uniform.

The first reported opinion to address the parameters of the notice requirement was Martin v. Honeywell, Inc., 1995 WL 868604 (M.D. Fla. 1995). In Martin, Judge Bucklew held that "the plain language of the statute imposes a written notice and opportunity to cure requirement as an element of proof in every private sector whistleblower claim because 448.103(1)(c) incorporates the notice provision set forth in 448.102(1)."[11] Because the employee had not alleged that he had provided written notice to his employer, Judge Bucklew dismissed the employee's Whistleblower Act claim for failure to state a claim upon which relief could be granted.[12]

A different result was reached in Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d DCA 1995). In Baiton, the Third District Court of Appeal held that written notice is not required if the employee is traveling under subsection 448.102(2) or 448.102(3).[13] In reaching that conclusion, however, the Baiton court apparently interpreted paragraph (c) as superfluous--as merely a reminder that written notice is required if the employee is traveling under subsection 448.102(1).[14]

Most recently, the Second District Court of Appeal, in Potomac Systems Engineering, Inc. v. Deering, 683 So. 2d 180 (Fla. 2d DCA 1996), held that a written complaint to the employer is required under subsection 448.102(3). In Deering, the employee had failed to provide his employer with written notice of the alleged violation of law.[15] However, the trial court interpreted the written notice and opportunity to cure requirement as inapplicable to subsection 448.102(3).[16] The trial court, therefore, denied the employer's motions to dismiss, for summary judgment, and for directed verdict, and the jury returned a verdict and final judgment for the employee.[17] On appeal, the Second District Court of Appeal reversed. Employing the rule of statutory construction, ut res magis valeat quam pereat, the court stated that "[i]f we were to accept [the trial court's] position, because section 448.102(1) already requires written notice, we would be finding that portion of section 448.103(1)(c) which requires written notice has no meaning. We decline to do this."[18] The Deering court, therefore, remanded the case for entry of judgment in favor of the employer and also certified its conflict with the Third District Court of Appeal's holding in Baiton.[19] To date, that conflict remains unresolved.

Conclusion

The plain language of the private sector Whistleblower's Act suggests that employees are required to provide their employer written notice of the allege violation of law, and an opportunity to cure the alleged violation, before filing any claim under the act. The rule of statutory construction, ut res magis valeat quam pereat, as well as the legislative history of the act, supports this conclusion. These principles should prove useful to courts as they continue to grapple with the proper construction of the notice requirement of the Florida private sector Whistleblower's Act.

[1] Regular readers of The Florida Bar Journal may recall Daniel Levine's article, "Baiton v. Carnival Cruise Lines: An Important Decision in the Evolution of Florida's Whistle-Blower's Act," in the May 1996 issue. In that article, Mr. Levine concluded that the Baiton opinion, though flawed analytically, reached the correct result by holding that an employee need not notify an employer of an alleged violation of law before filing suit if the employee has merely objected to, or refused to participate in, the violation of law. In this article, the author discusses the language of the private sector Whistleblower's Act, its legislative history, rules of statutory construction, and the case law interpreting the act, and concludes, in opposition to Mr. Levine, that employees should be required to provide their employers written notice and an opportunity to cure the alleged violation of law as a prerequisite to all private sector Whistleblower's Act claims.

[2] Courts may resort to rules of statutory construction to determine the legislative intent of an ambiguous statute. Mayo Clinic Jacksonville v. Dep't of Prof. Reg., Bd. of Medicine, 625 So. 2d 918, 919 (Fla. 1st D.C.A. 1993) (citing Florida State Racing Comm'n v. McLaughlin, 102 So. 2d 574,576 (Fla. 1958)).

[3] See, e.g., Unruh v. State of Florida, 669 So. 2d 242, 243 (Fla. 1996); Desisto College, Inc. v. Town of Howey-in-the-Hills, 706 F. Supp. 1479, 1495 (M.D. Fla. 1989); Forehand v. Board of Public Instruction, 166 So. 2d 668, 672 (Fla. 1st D.C.A. 1964).

[4] Fla. Stat. Ann. [sections]448.102(1) (1993).

[5] Mayo Clinic Jacksonville, 625 So. 2d at 919.

[6] "The staff analysis is the committee report most often relied on by Florida courts." Rhodes and Seereiter, The Search for Intent: Aids to Statutory Construction in Florida -- an Update, 13 Fla. St. U.L. Rev. 484, 495-96 (Fall 1995).

[7] Senate Staff Analysis and Economic Statement of CS/SB 74, April 4, 1991 (emphasis added). Although this language does not speak of written notice, the statute itself indicates that written notice is required. Id.

[8] Id.

[9] Kelder v. ACT Corp., 650 So. 2d 647 (Fla. 5th D.C.A. 1995).

[10] In addition to the cases discussed below, the decision in Park v. First Union Brokerage Services, 926 F. Supp. 1085 (M.D. Fla. 1996), indirectly involved an interpretation of the notice requirement. In Park, the employee was a former salesperson for a brokerage firm who alleged that her employer had terminated her employment in violation of the private sector Whistleblower's Act after she complained about, and objected to, her employer's sales practices--though not in writing. As an associated person of the National Association of Securities Dealers (NASD), she had agreed to arbitrate any disputes arising out of her employment. The NASD arbitration panel held that under the Florida private sector Whistleblower's Act, the employee was not required to provide prior written notice to her employer, and it awarded her over $750,000 in damages. Id. at 1087. The employer subsequently filed a motion in federal court to vacate the arbitration award. Judge Kovachevich denied the motion, holding that the panel's interpretation of the act did not evidence a "manifest disregard" or "wholesale departure" from the law. Id. at 1089. However, the case did not call for Judge Kovachevich to make an independent legal conclusion about the statute. Id.

[11] Id.

[12] Id.

[13] Baiton, 661 So. 2d at 316-17.

[14] See id. at 316

[15] Deering, 683 So. 2d at 181.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 182.

Richard D. Tuschman is an associate with the law firm of Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick in its Miami office. The firm represents management exclusively in labor and employment law. Mr. Tuschman earned his J.D. with honors from the George Washington University Law School in 1991 and his B.A. from Franklin & Marshall College in 1988.

This column is submitted on behalf of the Labor and Employment Law Section, David J. Linesch, chair, and F. Damon Kitchen, editor.