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Damages Under Florida’s Whistleblower Act

Posted by David Adelstein on July 20, 2019
Trial Perspectives / Comments Off on Damages Under Florida’s Whistleblower Act

Florida’s Whistleblower Act is designed to protect an employee who is wrongfully retaliated against (i.e., suspended, terminated, demoted, etc.) for objecting to or refusing to participate in his or her employer’s illegal practices.  Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 912 (Fla. 4thDCA 2013) (citation and quotation omitted). This is set forth in Florida Statute s. 448.102.  

If you believe you have been retaliated against for threatening to blow the whistle (or refusing to participate and objecting to your employer’s illegal activities), it is important to consult with counsel immediately to ensure your rights are protected.  

Also, if you believe you have information about your employer’s illegal activities and are considering blowing the whistle, you should absolutely consult with counsel to best protect your interests. 

In a Florida whistleblower action, a court may award the following damages or relief:

(a) An injunction restraining continued violation of this act.

(b) Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position.

(c) Reinstatement of full fringe benefits and seniority rights.

(d) Compensation for lost wages, benefits, and other remuneration.

(e) Any other compensatory damages allowable at law.”

Fla. Stat. s. 448.103(2).

Lost wages generally refers to back pay and potential front pay.  Aery, 118 So.3d at 914. 

In awarding back pay, “the trial court must determine what the employee would have earned had she not been the victim …, and must subtract from th[at] figure the amount of actual interim earnings.”  Front pay, on the other hand, “is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.”  While reinstatement, when feasible, is typically “the preferred remedy” for a wrongful firing, front pay may be applied where “ ‘reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result’ ” of the firing.

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In seeking back or front pay, the plaintiff “must mitigate her damages by seeking employment ‘substantially equivalent’ to the position [from which] she was” terminated. 

Aery, 118 So.3d at 914-15 (citations omitted).

As to compensatory damages under Florida’s Whistleblower Act: 

[G]iven the FWA’s [Florida Whistleblower Act] liberal construction, damages in the form of emotional distress are recoverable…as a form of compensatory damage. Thus, even if [the whistleblower] were not entitled to lost wages, his suit still could proceed on the theory that the wrongful discharge caused him mental anguish.

Punitive damages, on the other hand, are not recoverable.  Branche v. Airtran Airways, Inc., 314 F.Supp.2d 1194, 1196 (M.D.Fla. 2004).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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