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In our January 2025 blog post, we asked whether the Florida Supreme Court (“the Court”) would weigh in regarding the standard a plaintiff must meet in cases arising under section 448.102(3) of Florida’s Private Sector Whistleblower Act (section 448.101, et seq., Florida Statutes; “FWA”).[1] On May 28, 2026, the Court answered that question by rendering its opinion in Gessner v. Southern Company, et al., No. SC2024-1835 (Fla. May 28, 2026).[2] This is the case addressed in our July 2025 post where we noted the First District Court of Appeal (“DCA”) had certified conflict with the Fourth DCA regarding the applicable standard in FWA matters. This blog post will discuss the Court’s opinion in Gessner and its importance moving forward for parties involved in an FWA matter arising under section 448.102(3).

Given our previous analysis of the First DCA’s opinion, we will only briefly summarize the pertinent facts here. Gessner began working for Gulf Power Company (a subsidiary of Southern Company) in 2008.[3] Gulf Power ultimately terminated Gessner about a decade later, “after placing [him] on a kind of probation following multiple formal reprimands.”[4] His “use of racially disparaging language during a meeting proved to be the last straw,” and the company asserted that this was the “precipitating event for his termination.”[5] In his suit, Gessner asserted that he was “fired in retaliation for his objections to the companies’ alleged practices of exposing employees to unsafe environments” in violation “‘state and/or federal laws or that he reasonably and objectively believed were in said violation.’”[6] After discovery, the defendants moved for summary judgment.[7] They argued that Gessner had failed to establish that he “had objected to actual violations of laws, rules, or regulations,” while Gessner argued he only needed to proffer evidence that he objected to conduct he believed violated the law.[8] Gessner alternatively argued that he raised complaints to conduct that violated the General Duty Clause under the Occupational Safety and Health Act, but he had abandoned that argument before the Florida Supreme Court by not raising it in his briefings.[9]

The trial court ruled in favor of the defendants, holding that under 448.102(3), “an employee must show that he or she blew the whistle on an actual, not suspected, violation of law.”[10] As we discussed in our prior post, the First DCA agreed, holding that the “actual violation” standard governs FWS matters.[11] The First DCA aligned itself with the Second DCA, and the Fifth DCA subsequently joined the “actual violation” camp.[12] The First DCA and the Fifth DCA noted the conflict with the Fourth DCA’s opinion in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), where the court adopted a “good faith, objectively reasonable belief” standard.[13] The Court granted jurisdiction to resolve the conflict.[14]

The Court began its analysis by setting forth the pertinent statutory text:

An employer may not take any retaliatory personnel action against an employee because the employee has:

. . . .

(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.[15]

The Court emphasized that “section 448.102(3) uses ‘is’ to connect the employer’s ‘activity, policy, or practice’ to a ‘violation of a law, rule, or regulation.’”[16] The Court set forth an in-depth analysis of the meaning of “is,” which included references to John Keats and former Los Angeles Dodgers announcer Vin Scully.[17]

The Court determined that as used in 448.102(3), “is” is used definitionally, meaning that “[a]n employee need only object to an activity or practice that is, in the definitional sense, in violation of law in order to be protected under the statute.”[18] The Court determined that section 448.102(3) “does not require an employee to prove that the employer is, at the moment the employee is discharged, in the act of violating the law, that the employer has already violated the law, or that any authority has found the employer to have done so.”[19] The Court thus rejected the “actual violation” standard as set forth by the DCAs, as well as the “good faith, objectively reasonable belief” standard adopted by the Fourth DCA.[20] The Court noted that the Legislature has included subjective language in other whistleblowing statutes (including the public sector whistleblower statute), but it declined to do so in section 448.102(3).[21] The Court stressed that “to survive a motion to dismiss for a section 448.102(3) claim, an employee must plead ultimate facts about the employer’s ‘activity, policy, or practice’ that, if proven, would be in violation of law,” and it noted that a plaintiff must prove all of the statutory elements by a preponderance of the evidence to prevail.[22]

The Court helpfully illustrated its holding by providing the example of an employee terminated for refusing to dump hazardous waste in a waterway, in violation of Florida Litter Law.[23] The hypothetical employer had not yet dumped the material, but the directive would still be, definitionally, a violation of the law.[24] The Court determined that “[t]he hypothetical employee is thus protected by the statute when he objects to the dumping instruction regardless of whether the employer fails to ultimately carry it through without the employee.”[25] The Court stressed that the employer need not direct the employee himself for the employee to be protected, as the employee could object to the employer’s illegal activity carried out by the employer or its other agents.”[26]

Turning to the facts at hand, the Court determined that the trial court and First DCA properly determined that Gessner was not entitled to relief; however, the Court disapproved of their construction of the “actual violation” standard “to the extent it requires a completed unlawful action or adjudication of illegality in order for a plaintiff to sustain his or her burden at this stage of the proceedings.”[27] The Court affirmed the First DCA under the “tipsy coachman” doctrine, which permits an appellate court to affirm a trial court if it reached the right result for the wrong reason so long as there is a basis in the record that supports the judgment.[28] The Court determined that Gessner had not proven by a preponderance of the evidence “that the activities to which he objected are, definitionally, in violation of the law.”[29]

Gessner provides much-needed guidance for FWA litigations. Reviewing the statutory text, the Court determined that to the extent the “actual violation” standard required a plaintiff to prove the employer was in the act of violating the law, had violated the law, or that an authority had determined a violation had occurred, such a requirement was too stringent. Instead, as its hypothetical indicates, a plaintiff may be protected if the employer’s directive would constitute a violation of a law, rule, or regulation. Whereas previously there was murkiness in the FWA realm, there is now some clarity, although, as Chief Justice Muñiz notes in his opinion concurring in the result, future courts may need to determine if conduct that has not yet occurred constitutes an “activity, policy, or practice of the employer” under section 448.102(3).[30] For now, Gessner provides the controlling authority for FWA claims arising under 448.102(3).

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] See Jill S. Schwartz & Associates, P.A., News/Blog, Case Law Update: The First District Court of Appeal Adopts “Actual Violation” Standard for Private Sector Whistleblower Claims & Certifies Conflict—Will the Florida Supreme Court Weigh In?, available at https://www.schwartzlawfirm.net/case-law-update-the-first-district-court-of-appeal-adopts-actual-violation-standard-for-private-sector-whistleblower-claims-certifies-conflict-will-the-florida-supreme-cou/ (last visited June 26, 2026).

[2] The opinion is available at the following link: https://flcourts-media.flcourts.gov/content/download/2489373/opinion/Opinion_SC2024-1835.pdf last visited June 26, 2026). References to the opinion in the blog post refer to the page numbers from that version.

[3] Gessner, at *4.

[4] Id.

[5] Id.

[6] Id. (quoting his complaint) (emphasis added).

[7] Id., at *5.

[8] Id.

[9] Id., at *5-6.

[10] Id., at *6.

[11] Id., at *7.

[12] Id., at *7-8.

[13] Id., at *8.

[14] Id.

[15] Id., at *9 (quoting § 448.102(3), Fla. Stat.) (emphasis added).

[16] Id., at *10.

[17] Id., at *11-12.

[18] Id., at 13-15.

[19] Id., at *16.

[20] Id., at *18.

[21] Id., at *18-19.

[22] Id., at *21.

[23] Id., at *14.

[24] Id.

[25] Id.

[26] Id., at *15.

[27] Id., at *22.

[28] Id. The Court set forth the poem from which the doctrine’s name derives in footnote 10 of the opinion.

[29] Id., at *23.

[30] Id., at *25 (Muñiz, C.J., concurring in result).

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