Florida Supreme Court Holds That Private Whistleblowers Must Allege And Prove An Actual Violation Of Law By Their Employers

If a plaintiff brings a whistleblower claim under Florida’s Private Whistleblower Act, they are required to show they objected to or refused to participate in an illegal activity, policy, or practice. But there has long been a split of authority in the Florida Courts of Appeal as to whether the plaintiff needs more than a good faith belief in reporting unlawful employer conduct to be protected under the statute. The First, Second, and Fifth District Courts of Appeal held that the employee must object to an “actual violation of law” or refuse to participate in activity that “would have been an actual violation of law.” Drozd v. Amatus Health, LLC, 406 So. 3d 384 (Fla. 5th DCA 2025); Gessner v. S. Co., 396 So. 3d 908 (Fla. 1st DCA 2024); Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015). By contrast, the Fourth District Court of Appeal held that the employee only needs “a good faith, objectively reasonable belief that h[is] activity is protected by the statute.’” Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013).

The split is now resolved. The Florida Supreme Court unanimously held that an employee must establish “that the employer’s activity, policy, or practice is in violation of law—that is, it constitutes a violation of the law—not that the employer has already in fact violated the law, nor that the employee reasonably believed the employer violated the law.” Gessner v. S. Co., Case No. SC2024-1835 (Fla. May 26, 2026).

The Supreme Court appeared persuaded by the differences between the language in the private employee (§ 448.102(3)) and the public employee (§ 112.3187(5)(a)) whistleblower statutes. For public employees, it is enough to blow the whistle on “‘[a]ny violation or suspected violation’ of law.” But private employees must object to, or refuse to participate in, “any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” The text difference is clear, and nothing in section 448.102(3) mentions the employee’s subjective state of mind. The Court’s decision reflects that it is impermissible for a court to add words to a statute that the Legislature didn’t choose to use.

Gessner also cleared up several other aspects of private whistleblower claims. First, the whistleblower may object to the employer’s illegal activity carried out by the employer or its other agents. Second, the whistleblower may object even if they were not asked to personally perform the illegal task. Third, the employer’s illegal activity doesn’t need to be completed or transpire. Preventing the action may well be enough. And fourth, the employer’s action does not need to be found to be illegal “in advance” by a regulatory agency or other government entity before an actual violation of law is established.

What does an “actual violation of law” now look like? The Florida Supreme Court used an example of an employee who objects to their employer dumping hazardous waste in a waterway who is terminated for objecting. That would be protected under the actual violation of law standard because dumping hazardous waste would violate Florida’s Litter Law, regardless of whether the employer actually follows through with the dumping and independent of whether the employee is personally asked to dump the hazardous waste.

At bottom, under Gessner and moving forward, a whistleblowing plaintiff must ultimately plead and prove that their employer’s activity, policy, or practice that is objected to is, by definition, in violation of a law.

For Florida employers, Gessner resolves a conflict that has persisted for over a decade. Whistleblower claims are increasing across the state, and some of the counties that make up the Fourth District Court of Appeal (Palm Beach, Broward,  St. Lucie, Martin, Indian River, and Okeechobee) are experiencing significant population growth in recent years. Rather than having a more lenient whistleblower standard that applies only to the counties composing the Fourth DCA's territory, the Supreme Court has handed down a unified rule that gives employers across the state certainty about what to expect when faced with a Florida private whistleblower claim.

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