Florida Supreme Court Clarifies Standard for Private-Sector Whistleblower Claims

Seyfarth Synopsis: On May 28, 2026, the Florida Supreme Court issued a significant decision in Gessner v. Southern Company, clarifying the standard for retaliation claims under Florida’s Private Sector Whistle‑Blower’s Act (“FWA”). The Court held that an employee must prove that the employer’s conduct actually violates a law, rule, or regulation—not merely that the employee reasonably or in good faith believed the conduct was unlawful. This decision resolves a long-standing split among Florida’s appellate courts and raises the evidentiary burden for whistleblower plaintiffs, while providing employers with a stronger basis to challenge such claims at the pleading and summary judgment stages.

Background:

The FWA prohibits employers from taking retaliatory action against employees who engage in certain protected activities, including: (1) disclosing the employer’s alleged illegal activity to a governmental agency; (2) assisting in a government investigation into an alleged violation; or (3) objecting to, or refusing to participate in, an employer activity, policy, or practice that violates a law, rule, or regulation.

The Gessner decision focuses on the third category, which has been the subject of conflicting interpretations among Florida’s district courts of appeal. The First, Second, and Fifth District Courts required proof that the employee objected to an actual violation of law, while the Fourth District permitted claims based on an employee’s good-faith, objectively reasonable belief that the conduct was unlawful. This divergence carries substantial implications, as the “actual violation” standard limits protection to cases involving demonstrable illegality, while the good-faith, objectively reasonable standard is more lenient, allowing claims to proceed where employees raise credible concerns before any violation is definitively established.

Clint Shannon Gessner, a welder mechanic for Gulf Power Company, alleged he was terminated in retaliation for raising workplace safety concerns he believed violated state and federal law. His employer maintained he was terminated for performance-related issues and misconduct. The trial court granted summary judgment for the employer based on its interpretation of section 448.102(3), concluding that Gessner presented insufficient evidence from which a jury could find that he objected to a practice constituting an actual violation of law, rather than merely a suspected violation.

The First District Court of Appeal affirmed, expressly holding a plaintiff must prove he objected to conduct that is, in fact, unlawful. In reaching that conclusion, the First District relied on the Second District’s decision in Kearns v. Farmer Acquisition Co., which emphasized the statutory text—particularly the absence of any “good-faith, objectively reasonable belief” language. The Florida Supreme Court took the case to resolve a key legal question: Must a whistleblower prove an actual violation of law, or is a reasonable belief sufficient?

The Court’s Decision:

The Florida Supreme Court adopted a text‑based interpretation of § 448.102(3), holding a plaintiff must prove by a preponderance of the evidence the employer’s activity, policy, or practice “is in violation of law.” In doing so, the Court expressly rejected the “reasonable belief” standard, explaining the Legislature did not include such language in the statute and declining to read it into the law.

The Court clarified, although a plaintiff need not show a completed or adjudicated violation, the challenged conduct must still constitute a violation of law as a matter of law. Applying this framework, the Court affirmed summary judgment for the employer because Gessner failed to present evidence that the practices he challenged were unlawful.

Key Takeaway and Practical Implications:

The Gessner decision provides much-needed clarity regarding the scope of whistleblower protections under section 448.102(3) and resolves years of uncertainty by making clear that claims under section 448.102(3) must be grounded in conduct that actually violates a law, rule, or regulation—not merely an employee’s reasonable belief that it does. Indeed, employees cannot rely on a subjective or objectively reasonable belief that misconduct occurred. Instead, they must identify and prove an actual legal violation.

For employers, this clarification provides a stronger basis to evaluate and challenge whistleblower claims at the motion to dismiss and summary judgment stages, particularly where a plaintiff cannot identify a specific legal violation. Going forward, claims will turn on whether the plaintiff can identify and support a specific statutory or regulatory violation, rather than general safety concerns or perceived wrongdoing. Nonetheless, employees may still be protected when objecting to conduct that is unlawful—even if the violation has not yet occurred or been adjudicated.