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whistleblower

Damages Under Florida’s Public Whistleblower Act

Posted by David Adelstein on July 27, 2019
Trial Perspectives / Comments Off on Damages Under Florida’s Public Whistleblower Act

In a prior article, I discussed damages recoverable under Florida’s Whistleblower Act, which concerns employees working for private employers.  An employer cannot retaliate against an employee for reporting or objecting to violations of laws, rules, and regulations.

But, Florida also has a Whistleblower Act concerning employees or independent contractors working for public employers.  This is embodied in Florida Statute s. 112.3187 (also known as Florida’s Public Whistleblower Act) and designed to prevent the retaliation against such persons that report to an appropriate agency violations of law or any person that discloses information to an appropriate agency regarding the gross waste of funds, gross neglect of duty, or improper use of governmental office, on the party of any public agency or officer.  Fla. Stat. s. 112.3187(1). 

Damages recoverable under Florida’s Public Whistleblower Act are as follows:

Relief.–In any action brought under this section, the relief must include the following:

(a) Reinstatement of the employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief.

(b) Reinstatement of the employee’s full fringe benefits and seniority rights, as appropriate.

(c) Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.

(d) 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.

(e) Issuance of an injunction, if appropriate, by a court of competent jurisdiction.

(f) Temporary reinstatement to the employee’s former position or to an equivalent position….

Fla. Stat. s. 112.3187(9).

In a recent case, Iglesias v. City of Hialeah, 44 Fla.L.Weekly D1896a (Fla. 3d DCA 2019), the Third District held that a person suing under Florida’s Public Whistleblower Act can also recover noneconomic compensatory damages.  Id. (“The [Florida Public Whistleblower Act] mandates that an award include the remedies explicitly identified within the statute, but does not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under applicable law.”).

 

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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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.

***

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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