In Florida, a state appellate court just issued a ruling that will raise the bar for whistleblower claims and make it easier for employers to defeat lawsuits before trial; however, this has created conflict with another issue.
On November 20, Florida’s First District Court of Appeal ruled that plaintiffs filing claims under the Florida Private Whistleblower Act (FPWA) must prove they objected to or refused participation in an actual violation of a law, rule, or regulation. This decision highlights a conflict among Florida’s appellate courts regarding whether an actual violation or a reasonable belief of a violation is sufficient for an employee to succeed in an FPWA retaliation claim.
A Good Reminder for Employers
Although the legal standard for retaliation claims tends to favor employers, the most effective way to handle them is to prevent claims from arising in the first place. Implementing strong reporting procedures, conducting thorough investigations, maintaining a robust performance management system, and applying clear progressive discipline policies can help minimize the likelihood of such claims.
How Employers Can Reduce the Risk of Retaliation Claims
A Strong Performance Management System
Establishing a strong performance management system is essential for fostering accountability and mitigating potential legal risks. Such a system should include clear goal setting, regular progress monitoring, and detailed year-end evaluations. Feedback should be specific, backed by tangible examples of accomplishments, and delivered transparently. Consistent application of this process year after year reinforces fairness and credibility. Here are some practical strategies to enhance your performance management system:
1. Develop a structured timeline: Set clear schedules for goal setting, mid-year reviews, and year-end evaluations to ensure a consistent process.
2. Train managers effectively: Help managers recognize performance management as a key leadership responsibility rather than a mere administrative task.
3. Emphasize clarity in feedback: Encourage managers to provide honest, constructive feedback. Ambiguous or inconsistent reviews—such as vague praise for an employee later terminated for poor performance—can lead to claims of unfair treatment.
Review Policies and Procedures & Implement Changes
Distribute a copy of your workplace policies and procedures to every employee during onboarding and require them to sign an acknowledgment of receipt. Additionally, train employees and managers to recognize policy violations and emphasize the importance of enforcing policies consistently and fairly.
Effective communication of policies and procedures fosters transparency and sets clear expectations for progressive discipline. Providing concrete examples of policy violations gives managers a foundation to reference in written disciplinary actions, ensuring employees understand that such measures are not arbitrary. Regularly review and update these policies to stay compliant with legal requirements and reflect any internal operational changes.
Have Consistent Progressive Discipline
Terminations should never catch employees off guard. Establish a written progressive discipline policy that all employees acknowledge to ensure transparency. Train managers to consistently apply the policy and document violations to create a clear record. Human Resources should oversee disciplinary actions to ensure fairness and consistency across the organization. This uniform approach helps employers counter claims of unequal treatment and demonstrates a commitment to enforcing workplace policies equitably.
Always Keep Detailed Records
It’s important to follow up verbal discussions about workplace concerns with written communication, such as an email, to create a clear record of what was discussed and agreed upon. This documentation helps reduce the risk of misunderstandings and serves as evidence of the employer’s efforts to address employee concerns and communicate effectively. Additionally, maintaining written records demonstrates the employer’s commitment to transparency and accountability.
Have Reporting Procedures in Place for Employee Concerns
Ensure your company has strong reporting procedures for employees to voice their concerns. These procedures help address issues promptly, preventing them from escalating into major disputes. It’s also essential to thoroughly document the scope of each concern to avoid misunderstandings or disputes over its nature. When employees see their concerns handled with respect and efficiency, they are more likely to trust the resolution process. Ultimately, well-designed reporting procedures foster open communication, build trust, and provide clear documentation for all parties involved.
Have a Proper Investigation Protocol
Employers should be ready to initiate a prompt investigation in the event of a complaint being filed to show a commitment to timely action. Every investigation should be carried out with a sincere intent to assess the situation fairly and impartially, determining whether company policy was violated and identifying the appropriate course of action if it was. Additionally, investigators should be trained to exercise sound judgment based on the specific details of each complaint.